Sunday, February 17, 2019

Madras HC steps in, man secures police job after 14 years

After 14 long years, Chennai resident M  Palani is set to get his dream job with the Tamil Nadu police, thanks to the intervention of the  Madras high court. Palani was refused appointment as grade II constable - even after he cleared the required written exam and physical endurance tests in 2003 - on the grounds that he had been punished for copying in the Class XII board exam.

Asserting that copying in an exam cannot be construed as a criminal offence, Justice R Suresh Kumar set aside the denial order of the DGP, dated January 21, 2004. The court directed the department to consider the candidature of Palani if he is found to be physically fit and had displayed good conduct for all these 14 years.
"Even if the said involvement of copying, which ended with a punishment of disqualifying him, is considered a crime, he is certainly having the protective cover under the Juvenile Justice Act which prohibits disqualification for the crimes committed as a minor," Justice Suresh Kumar said.

Palani is the first person from his family to complete school education. He had cleared the SSLC in May 1999 and later did his Class XII. On February 19, 2001, when he had appeared for the zoology paper in the board exam, the flying squad found a piece of paper lying on the floor next to him and, accordingly, found him guilty and recorded a statement from him.
Thereafter, a show-cause notice was issued to Palani and he was disqualified by the school authorities. Later, in 2003, he appeared in the recruitment process called for by the police department for the post of grade II constable and cleared all the exams including the test for physical endurance. However, on January 21, 2004, the office of the DGP issued an order denying appointment to Palani on the grounds that he was punished for copying in the board exam.

Aggrieved, Palani moved the Madras high court challenging the denial order. Representing Palani, advocate Balan Haridas submitted that the petitioner had not been involved in any crime within the Rule 14(b) of the  Tamil Nadu Special Police Subordinate Service Rules.

"Assuming that the petitioner was involved in copying in +2 exams at that time the petitioner was only 17 years old, and, therefore, he was a juvenile. In the case of a juvenile, who had been tried under Section 19 of Juvenile Justice [care and protection of children] Act, he will be protected from being disqualified for any future civil rights/employment.

Ensure Section 66A of IT Act is not invoked, Supreme Court directs all states and courts

The Supreme Court on 15 February  directed all state governments, police departments, and courts across India to ensure that Section 66A of the IT Act which was scrapped by it in 2015 is not invoked against anyone.


A bench of the Supreme Court on Friday directed all state governments to remind their respective police departments of its March 24, 205 order which led to the scrapping of Section 66A of the Information Technology (IT) Act. This act enabled police to arrest anyone accused of 'spreading offensive content' on social media.
Comprising of Justices RF Nariman and Sanjay Kishan Kaul, the apex court bench also directed all high courts to send a copy of the verdict to all trial courts in the country in order to ensure that no one is prosecuted or arrested under this provision. The bench was hearing a plea in this regard filed by NGO PUCL who claimed that people are still being prosecuted under this provision even three years after it was struck down by the Supreme Court.

In their plea, PUCL had quoted a recent working paper by the Internet Freedom Foundation demonstrating how pending prosecutions under Section 66A of the IT Act have not been terminated. While challenging the constitutional validity of the provision, PUCL reiterated that it is still being invoked by police departments across India in First Information Reports (FIRs).

The apex court sought a response from the Centre in addition to warning concerned officials with imprisonment for violating its orders. In 2015, the Supreme Court had scrapped Section 66A by citing liberty of thought and expression as "cardinal". It had also stated that the public's right to know is directly affected by Section 66A of the IT Act. The act, when in force, carried a maximum punishment of up to three years in jail.

Saturday, February 16, 2019

6 years on, landlord held guilty of digitally raping US woman

 A fast-track court in Delhi on Thursday held a man guilty of raping his tenant with a finger six years ago. The woman, a US national, was asleep with her husband when Rajiv Panwar violated her with his finger in the early hours of June 24, 2013. Because of his action, the woman said she had to leave India and her marriage broke down.
“It can be safely concluded that the accused had entered the room where the prosecutrix was sleeping with her husband and put his finger in her vagina... Accused Rajiv Panwar is held guilty of offence of rape/digital rape under Section 376 IPC (sic),” judge Ila Rawat said.
The survivor, who worked with a United Nations agency in India at the time, reported that she had woken up between 4 and 4.30am sensing that someone was digitally raping her. Panwar fled as soon as she saw him and raised an alarm. Her husband started after Panwar but stopped when she cried, “Don’t leave me”, as she wanted to be comforted.
Panwar was arrested the same day after the survivor identified him. He, however, pleaded innocence and alleged that the couple didn’t pay rent on time and “created nuisance”. They had framed him to avoid paying the dues, he said.

Panwar said he used to visit the couple’s flat occasionally as their landlord, but denied being there at the time of the crime.
Through her counsel Karuna Nandy, the survivor submitted that her relationship with her husband was severely affected because of the incident. He had been very protective of her throughout, yet she had been assaulted while sleeping beside him. As such, the husband was also a victim, Nandy said. The couple’s appeal to dissolve their marriage is pending.
Judge Rawat held the woman’s statements to be “absolutely consistent”. When the defence counsel argued that she had made “improvements” in her deposition, the court said, “It is true that prosecutrix has given a rather detailed statement in her examination-in-chief but it is to be kept in mind that prosecutrix is a foreign national.” The woman, although fluent in English, was not expected to be familiar with the process of investigation of cases in India, it added. “She has given an explanation that after the incident, she was very traumatised and emotional (sic).”
The defence counsel even insinuated that the woman had “imagined” the crime, but the court said she had woken up after being stimulated with a finger. “She may have expressed the act by using different expressions, however, there is no doubt with respect to the meaning they convey.” Panwar will be sentenced on  18th February.

Wednesday, February 13, 2019

CJI Sacks Two SC Officials For Tampering With Order in Anil Ambani's Contempt Case

The extraordinary step from the CJI was an instance of tampering with Justice Nariman's order in January when a show-cause notice of contempt was issued to Anil Ambani.

Following an inquiry, the Supreme Court has sacked its two assistant registrars who were found involved in tampering with a court order which appeared favourable to Reliance Communication chairperson Anil Ambani in a contempt case.

On Wednesday, Chief Justice of India Ranjan Gogoi issued the order to summarily dismiss the two court officials, who were responsible for taking down the judge's orders and getting them uploaded on the website.


The CJI, acting on a complaint by Justice Rohinton F Nariman, who has been hearing the contempt case, used his powers under Article 311 of the Constitution and Section 11(13) of the Supreme Court which empower the CJI to dismiss any employee under “extraordinary” circumstances without resorting to normal disciplinary proceedings.

What prompted the extraordinary step from the CJI was an instance of tampering with Justice Nariman's order in January when a show-cause notice of contempt was issued to Anil Ambani over alleged failure to clear outstanding dues to Ericsson India despite categorical undertakings to the top court.


The order that was uploaded on the Supreme Court website on January 7 said the “personal appearance of the alleged contemnor(s) is dispensed with”. 

This connoted that Ambani’s presence was not required on the next date of hearing although the rule is that anybody who is issued a contempt notice must show up once and request for exemption of his personal appearance on future dates. 

The order propitious to Ambani was uploaded on the website even though Justice Nariman had hours before made it clear that Ambani's personal appearance was not dispensed with.

The discrepancy led senior advocate Dushyant Dave and other Ericsson representatives move Justice Nariman's court again, pointing this out.

Justice Nariman, expressing shock, got the correct order uploaded on the website on January 10. “Personal appearance of the alleged contemnor(s) is not dispensed with,” the revised order said.

Justice Nariman also preferred an inquiry against the court officials, which suggested deliberate tampering after a scrutiny by the CJI.

Subsequently, court masters, Manav Sharma and Tapan Kumar Chakraborty, who held the rank of assistant registrars, were sacked on Wednesday evening.

Ambani, in terms of the revised order, remained present in the court on February 12 and on February 13 in connection with the contempt proceedings. He spent over two hours in the court on Tuesday and almost the whole day on Wednesday when the judgment was reserved by Justice Nariman's bench.

Towards the end of the proceeding, Justice Nariman told senior lawyers Mukul Rohatgi and Kapil Sibal, who appeared for Ambani and RCom: "Consequences will follow of what you have done."

Tuesday, February 12, 2019

Court Has To Confine Itself To The Four Corners Of 'Disobeyed' Order While Exercising Contempt Jurisdiction: SC

The Supreme Court has reiterated that, while exercising the contempt jurisdiction, the court has to confine itself to the four corners of the order alleged to have been disobeyed.



The bench comprising Justice R. Banumathi and Justice R. Subhash Reddy made this observation in an appeal (Er. K. Arumugam vs. V. Balakrishnan) challenging a Madras High Court order in a contempt case, which passed directions beyond the order allegedly disobeyed.

In the writ petition filed by Balakrishnan, the High Court passed an order directing the District Collector to ensure that a fair and reasonable compensation be sanctioned to him. District Collector passed an order directing compensation at Rs.200 per sq. ft. Balakrishnan then filed contempt petition. The District collector during the pendency of the petition passed another order modifying the compensation to Rs.500 per sq. ft. Thereafter the High court disposed of the contempt petition modifying the compensation to Rs.600 per sq. ft.
"In the contempt jurisdiction, the court has to confine itself to the four corners of the order alleged to have been disobeyed." said the bench while setting aside the High Court order. The bench referred to judgment in Sudhir Vasudeva v. M. George Ravishekaran, in which the Apex court had observed thus:
"The Courts must not, therefore, travel beyond the four corners of the order which is alleged to have been flouted or enter into questions that have not been dealt with or decided in the judgment or the order violation of which is alleged. Only such directions which are explicit in a judgment or order or are plainly self-evident ought to be taken into account for the purpose of consideration as to whether there has been any disobedience or willful violation of the same. Decided issues cannot be reopened; nor can the plea of equities be considered. The Courts must also ensure that while considering a contempt plea the power available to the Court in other corrective jurisdictions like review or appeal is not trenched upon. No order or direction supplemental to what has been already expressed should be issued by the Court while exercising jurisdiction in the domain of the contempt law; such an exercise is more appropriate in other jurisdictions vested in the Court, as noticed above."

The bench observed that the High Court erred in directing the TWAD Board to pay compensation at the rate of Rs.600/- per sq. ft. which works out to more than Rs.4, 00, 00,000. It is public money and having implications on the public exchequer, the public money cannot be allowed to be taken away by an individual by filing contempt petition thereby arm-twisting the authorities, said the court while allowing the appeal.

Pay Rs 1 lakh, go sit in the corner: SC punishes ex-CBI chief Nageshwar Rao for contempt

The Supreme Court came down hard at Nageshwar Rao for transferring officials investigating the Muzaffarpur shelter home rape cases. These transfers were made despite clear SC orders against this.


The Supreme Court today held former interim CBI director M Nageshwar Rao (also spelt as Nageshwara Rao) guilty of contempt of court and imposed a fine of Rs 1 lakh on him. As part of punishment, the court asked him to sit in one corner of the court through the day until the court proceedings end.
The court also slapped a fine of Rs 1 lakh on Nageshwar Rao's legal advisor. The Supreme Court came down hard on Nageshwar Rao for transferring officials investigating the Muzaffarpur shelter home rape case. These transfers were made despite clear orders of the Supreme Court against this.

In his ruling, CJI Ranjan Gogoi said, "Contempt [of court] has been committed. So there will be a mark on his (Nageshwar Rao's) career."
To this, Attorney General KK Venugopal pleased that Rao has an "unblemished" track record of 32 years. "Please kindly adopt merciful approach as he has tendered apologies," he said.

Earlier, Chief Justice of India (CJI) Ranjan Gogoi asked Rao why the court should not initiate contempt of court proceedings against him for transferring investigation officer (IO) AK Sharma.
The court said the charge against Rao is that despite explicit order passed on November 21, 2018 that joint director AK Sharma would not be moved from the investigation into Muzaffarpur shelter home case, Rao went ahead and transferred him.

Appearing for Nageshwar Rao in the court, Attorney General KK Venugopal said Rao committed a series of mistakes but the court should not start contempt of court proceedings against him. He said Rao has appologised for his mistake and that the mistake was not committed wilfully.
CJI Gogoi said the Supreme Court had passed two orders clearly stating that the investigating officers in the Muzafffarpur shelter home case should not be transferred without the court's approval.
He said when Nageshwar Rao was the acting CBI chief, he was aware of these orders.
Acting director Rao forgets about the Supreme Court order but in his own file notes that the SC must be informed, the court said, asking if this is not a case of contempt of court.

Thursday, February 7, 2019

CBI's Nageswara Rao Committed Contempt, Says Supreme Court

Angry over the laxity in the investigation into rapes of children in Bihar's government-run shelter homes, the Supreme Court today accused M Nageswara Rao, the former interim chief of the CBI, of contempt. Mr Rao was responsible for the transfer of AK Sharma, the officer supervising the case, which the court is monitoring. The top court today said the transfer has taken place despite its "embargo". 
Remarking that Mr Rao and Bhasuran, the prosecution in-charge, have committed contempt, Chief Justice of India Ranjan Gogoi said, "You have played with our orders. God help you".
In the morning, the Centre got pulled up for transferring joint director AK Sharma. "How can he be transferred by the Centre when the Supreme Court said he must not be shifted?" the furious Chief Justice had questioned. 
The agency was asked to inform the court that whether the panel, which transfers officers, was aware of the "embargo" and was ordered to do so in writing - by 2 pm. 

Suit In Respect To Properties Situated In Jurisdiction Of Different Courts Can Be Instituted In One Of Those Courts: SC

The Supreme Court has observed that, a suit in respect to immovable property or properties situate in jurisdiction of different courts may be instituted in any court within whose local limits of jurisdiction, any portion of the property or one or more properties may be situated.

Read Full Judgment

The bench comprising Justice Ashok Bhushan and Justice KM Josephobserved that interpretation of word "portion of the property" in Section 17 CPC cannot only be understood in a limited and restrictive sense of being portion of one property situated in jurisdiction of two courts.

Applying this interpretation, the Section 17 would read thus: The suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property (or Properties) is situate. This would further imply that one property out of a lot of several properties can be treated as 'portion of the property'. 

In this case (Shivnarayan vs. Maniklal), the court agreed with the submission made by the appellant's counsel that the word "property" as occurring in Section 17 shall also include the plural as per Section 13 of General Clauses Act, 1897, which provides that 'words in the singular shall include the plural'.

Answering the issue whether Section 17 applies only when a composite property spread in jurisdiction of two Courts or Section 17 contemplate any wider situation, the bench said:

"The word "property" under Section 17 of the Civil Procedure code may also be properties, hence, in a schedule of plaint, more than one property can be included. Section 17 can be applied in event there are several properties, one or more of which may be located in different jurisdiction of courts. The word "portion of the property" occurring in Section 17 has to be understood in context of more than one property also, meaning thereby one property out of a lot of several properties can be treated as portion of the property as occurring in Section 17. Thus, interpretation of word "portion of the property" cannot only be understood in a limited and restrictive sense of being portion of one property situated in jurisdiction of two courts." 

The bench, referring to various judgments and provisions of CPC summarized the scope and ambit of Section 17 as follows:

  • The word 'property' occurring in Section 17 although has been used in 'singular' but by virtue of Section 13 of the General Clauses Act it may also be read as 'plural', i.e., "properties". 
  • The expression 'any portion of the property' can be read as portion of one or more properties situated in jurisdiction of different courts and can be also read as portion of several properties situated in jurisdiction of different courts.
  • A suit in respect to immovable property or properties situate in jurisdiction of different courts may be instituted in any court within whose local limits of jurisdiction, any portion of the property or one or more properties may be situated.
  • A suit in respect to more than one property situated in jurisdiction of different courts can be instituted in a court within local limits of jurisdiction where one or more properties are situated provided suit is based on same cause of action with respect to the properties situated in jurisdiction of different courts.
However, though the court favoured the interpretation of Section 17 made by the counsel for appellant, it dismissed the appeal on the ground of mis-joinder of parties and causes of action.

Wednesday, February 6, 2019

HC fines Gadhada Swaminarayan temple chairma

Gujarat high court has slapped a fine of Rs 1 lakh on the chairman of Gadhada’s famous Swaminarayan temple, Kanubhai Kanani, for seeking removal of retired HC judge S M Soni from the post of election officer for the polls scheduled for the Shree Gopinathji Dev Mandir Trust.
Justice Bela Trivedi was furious at the demand for removal of Justice Soni, who was appointed to supervise the temple’s controversial election by the Supreme Court on December 13. The apex court appointed him after both the contesting parties – the trust and a group of devotees – gave consent for Justice Soni’s name.
The court was also angry because it found the petition very contemptuous to the SC order and for dragging Justice Soni to litigation unnecessarily after not cooperating with him in election process. The court also found the petition’s drafting very offending and thought of initiating contempt of court proceedings against the lawyer who had drafted the petition. However,senior counsel Shalin Mehta did not reveal the name of the advocate and requested for a pardon.
During the hearing of the petition, Justice Soni sent his resignation letter to the high court on January 25.
Interestingly, the litigants in this matter had first objected to retired sessions judge K J Upadhyay as election officer by casting aspersions on him and accusing him of partiality. The high court removed judge Upadhyay and decided to appoint a retired HC judge as election officer. Finally, the SC appointed Justice Soni for the task with directions to complete the elections in eight weeks’ time.
The trust’s chairman approached the HC again accusing the retired HC judge of partiality, and demanded the judge Upadhyay may be assigned with the duty of election officer in place of Justice Soni.
The court dismissed Kanani’s petition by ordering him to pay the fine within two weeks. The court also expressed displeasure with the conduct of the petitioner and with the tenor in which the petition was drafted.

Linking PAN with Aadhaar must to file I-T returns -SC

Putting to rest all doubt, the Supreme Court has said that linking the permanent account number with Aadhaar is mandatory for filing income tax returns.

A bench comprising Justices A K Sikri and S Abdul Nazeer said the top court has already decided the matter and upheld Section 139AA of the Income Tax Act.

The court’s order came on an appeal filed by the Centre against a Delhi high court ruling allowing Shreya Sen and Jayshree Satpute to file income tax returns for assessment year 2018-19 (financial year 2017-18) without linking their Aadhaar number and PAN. There were some other individuals too who had been given relief last year.
The Supreme Court has said that linking the permanent account number with Aadhaar is mandatory for filing income tax returns (ITR).
A bench comprising Justices A K Sikri and S Abdul Nazeer said the top court has already decided the matter and upheld Section 139AA of the Income Tax Act. The SC order came on an appeal filed by the Centre against a Delhi high court ruling allowing Shreya Sen and Jayshree Satpute to file income tax returns for assessment year 2018-19 (financial year 2017-18) without linking their Aadhaar number and PAN.
There were some other individuals too who had been given relief last year.
“The aforesaid order was passed by the high court having regard to the fact that the matter was pending consideration in this court. Thereafter, this court has decided the matter and upheld the vires of Section 139AA of the Income Tax Act. In view thereof, linkage of PAN with Aadhaar is mandatory,” the bench said.
Sen and Satpute had filed their returns following the court order and the assessment has also been completed. The SC made it clear that for the current assessment year, returns have to be filed after linking PAN and the unique ID.
The order flows from the September 26 verdict, which declared Aadhaar legally valid and allowed its use for getting subsidies as well as linking with PAN.
While several taxpayers wanted to opt out of Aadhaar and did not want to link their PAN, the government has maintained that it is critical to ensure that individuals don’t evade taxes with multiple PANs. A majority of PANs have already been linked to Aadhaar, government sources said.

Carrying hard copy of your driving licence, RC not mandatory now

As per the latest amendments in the IT Act 2000 and the Motor Vehicles Act 1988, digital driving license and vehicle's RC papers stored in DigiLocker will be now legally recognised at par with the original documents.

In a big relief to the drivers, the Ministry of Road Transport has recently issued a notification informing the general public that drivers do not need to carry physical copies of driving licence or any other vehicle related document for verification purpose anymore as electronic copies will be valid from now. As per the latest amendments in the IT Act 2000 and the Motor Vehicles Act 1988, digital driving license and vehicle’s RC papers stored in DigiLocker will be now legally recognised at par with the original documents. With immediate effect, the notification by the ministry is addressed to all the India State’s Principal Secretaries, All Secretaries of Department of Transport, DGPs/ ADGPs (Traffic) and all State/UT Transport Commissioners.

This powerful move is being seen in line with the numerous grievances and RTI applications received by the Ministry of Road Transport where vehicle owners raised the concern that the documents available in DigiLocker or the mParivahan app were not being considered valid by the traffic police or the motor vehicles department. With this notification in place, the citizen can now produce the transport-related documents in physical or electronic form on demand by any police officer in uniform or any other officer authorised by the state government in the regard. However, the citizens must note that a scanned copy of any of these documents will not be acceptable to the authorities and people will have to store the required vehicle documents on their smartphones on ‘DigiLocker’, an application controlled and operated by the Central government.

The service is part of Digital India scheme, which allows people to store certain official documents on the cloud while eliminating the need to carry important physical documents. People can easily download the app from Google Play Store or App Store and the documents will automatically get validated once uploaded in the app as they are directly issued by the concerned authorities.

The notification is a big relief for the drivers as the previous law demanded them to present the physical documents (e.g. DL, RC, Pollution Check, and Insurance) as proof of eligibility to drive on Indian roads. This was a major concern not only for the drivers but even for the entire ecosystem including law and enforcement machinery, and the insurance industry. There were numerous problems that were being faced by the drivers in India due to the existing law including risk of misplacing DL/ losing it to theft, disfigured/torn documents, long discussions with the traffic police to prove the veracity of the documents, and delay in getting the physical documents from the concerned authorities.

Yet another common problem that the drivers in India face is that the hard copy delivery of insurance certificate is typically delayed on an average by 15-20 days. Moreover, as per a recent survey, on an average a driver gets delayed by 15 min to 4 hours in reaching the destination when asked for physical documents as proof of eligibility to drive on Indian roads. Fortunately, with the implementation of the new law, most of these concerns will be addressed.

From the last few years, numerous authorities including insurers, marketplaces, consumer rights body etc. have been trying hard to bring in amendment in the current IT Act 2000 and the Motor Vehicles Act 1988. The authorities have been demanding to authenticate the soft copy of insurance plans. In all these years, numerous submissions were made to the government to make amendment in the current law.

Negative Marking System Cripples Students' Intuition, Kills Art Of Intelligent Guessing: Madras HC

"Intelligent guessing should be permitted and encouraged, as it would help the students in their future life, whereas, the attempt of CBSE in awarding negative marks would totally eradicate the habit of intelligent guessing." The Madras High Court has observed that system of negative marking system in competitive examinations requires reconsideration and has to be done away with. Justice R. Mahadevan, while disposing of a petition filed by Nelson Prabhakar observed that the very system of awarding negative marks is improper and against the principles of fairness, equality and equity. The judge said that this system does not, in anyway, helps the examiner to analyse the intelligence, aptitude or knowledge of the students in any manner. 

The writ petition filed by Nelson sought for a direction to CBSE to revalue his answer sheets of the Physics and Mathematics of JEE (Main) 2013. Even though the court had granted him an interim order permitting him to write the JEE Advance Level examination, he was not allowed by to take part in the examination on the ground that no order was communicated.

Though the writ petition became infructuous, Nelson's lawyer (Advocate A. Arulmozhi) urged the court to address his concerns against negative marking system. Citing examples of system followed in various countries and also in CMC, Vellore, he sought for a direction to the CBSE to withdraw / strike down the method of negative marking. CBSE defended the system stating that object of having negative marks in the competitive examination is to ensure that only diligent and deserving candidates get selected for admission in the colleges offering professional courses, which cannot be found fault with. Justice Mahadevan agreed with Nelson's counsel and opined that negative marking is a source of discouragement in the minds of the student. Terming 'intelligent guessing' as an art, the judge said that it should be permitted and encouraged. The court also observed that the threat of negative marks will never allow intuition to grow in a student and it also makes the student approaches every question with an element of fear. The court further observed that there is no scientific proof in support of negative marking system that it helps to choose best candidates from the competitive examination. The court also observed that most advanced countries like the UK, Canada, Australia and Russia have stopped the practice of negative marking. Even in India, the renowned CMC, Vellore, one of the best colleges in the field of medicine, does not award negative marks in their entrance examination for admission to medical college, the judge said. As an alternative to negative marking system, the court suggested that the number of alternatives in each question from which the candidates have to choose the correct answer, can be increased. Following are some observations made by Justice Mahadevan in the judgment.


Sunday, February 3, 2019

SC To Look Into Issues Regarding Safety Of Indian Railways

The Supreme Court, last week, said it will look into issues and concerns regarding safety of Indian railways.

The bench comprising Justice Uday Umesh Lalit and Justice Indira Banerjee sought views of the Union of India in the matter, while delivering a judgment in an appeal arising out of a claim made in a railway accident death case.

One Dasarath Yadav had died after his head collided with a post by the side of the railway track resulting in an accident. Though the Railway Claims Tribunal held that he was a bona fide railway passenger and that the incident was an "untoward incident" in terms of the provisions of Section 123 of the Railways Act, 1989, it was found that the deceased was victim of his own act and as such no compensation was payable.

On Appeal, the Calcutta High Court held that the claimant was entitled to compensation of Rs.8, 00,000 with interest @ 9% per annum. In terms of Section 124-A of the Act the 'Principle of Strict Liability' would arise and as such the Tribunal was not right in denying compensation to the claimants, the High Court had held.

Before the Apex court, the contention was that the grant of interest on the sum of Rs.8, 00,000 was not consistent with the law laid down in Rina Devi judgment. The bench observed that the claimant shall be entitled to the benefit ordered by the High Court irrespective of the decision as regards question of law raised in this appeal. Explaining the said judgment, the court said: 
"What this Court has laid down is that the amount of compensation payable on the date of accident with reasonable rate of interest shall first be calculated. If the amount so calculated is less than the amount prescribed as on the date of the award, the claimant would be entitled to higher of these two amounts. Therefore, if the liability had arisen before the amendment was brought in, the basic figure would be as per the Schedule as was in existence before the amendment and on such basic figure reasonable rate of interest would be calculated. If there be any difference between the amount so calculated and the amount prescribed in the Schedule as on the date of the award, the higher of two figures would be the measure of compensation. For instance, in case of a death in an accident which occurred before amendment, the basic figure would be Rs.4,00,000/-. If, after applying reasonable rate of interest, the final figure were to be less than Rs.8,00,000/-, which was brought in by way of amendment, the claimant would be entitled to Rs.8,00,000/-. If, however, the amount of original compensation with rate of interest were to exceed the sum of Rs.8,00,000/- the compensation would be in terms of figure in excess of Rs.8,00,000/-. The idea is to afford the benefit of the amendment, to the extent possible."
The apex court finally held that, the High Court was in error in awarding interest on the sum of Rs.8 lakhs, since the accident had occurred before the amendment.
During the hearing of this case, the bench had appointed Advocate Brijender Chahar as amicus curiae in this case, to assist the court in its concerns about Railway safety. The amicus also submitted summary of following four reports in this regard.

  • Anil Kakodkar High Level Safety Review Committee, 17.02.2012; 
  • Twelfth Report of 16th Lok Sabha on safety and security in Railways; 
  • Report No.14 of 2016 of the Comptroller and Auditor General of India on Suburban Train Services in Indian Railways; and 
  • Twenty-Third Report of Standing Committee on Railways (2013-14) Fifteenth Lok Sabha, Ministry of Railways Report on Suburban Train Services of Indian Railways, with particular emphasis on Security of Women Passengers.
While disposing the appeal, the bench said: 
"The learned Additional Solicitor General readily agreed to the suggestion that the Railways must consider the matter in right earnest and see that the concerns regarding safety are immediately addressed. On the request of the learned Additional Solicitor General, we, therefore, adjourn the matter for eight weeks only to consider the issues regarding the safety as highlighted by the learned amicus curiae."

Friday, February 1, 2019

Decree Passed On Plaintiff's Evidence Without Defendant's Appearance At Trial Is Ex-Parte Decree : SC


Such decree can be set aside under Order IX, Rule 13 CPC, if defendant makes out sufficient grounds.

Read Full Judgment

The Supreme Court has held that a decree passed after taking plaintiff's evidence, without the appearance of defendant at the trial stage, is an ex-parte decree, which could be set aside under Order IX Rule 13 of the Code of Civil Procedure.
The bench of Justice A M Sapre and Dinesh Maheshwari passed the order in the case G.Ratna Raj by LRs vs Sri Muthukumaraswamy Permanent Fund Ltd, which was an appeal against a High Court judgment, which set aside a preliminary decree under Order IX Rule 13 CPC.

The preliminary decree was passed in a suit for redemption of mortgage. Though the defendants had made appearance and filed written statement, they did not appear at the stage of evidence. So, the plaintiff's evidence was recorded in the absence of defendant. The defendant's evidence was closed on its non-appearance.

Based on plaintiff's evidence, the trial court passed a preliminary decree, upon which the defendant filed application under Order IX Rule 13 CPC. The application was rejected by the trial court holding that the decree was not passed ex-parte. This was challenged in the High Court, which reversed the trial court's rejection and set-aside the decree.
Questioning the High Court's order, the plaintiffs came in appeal in SC.
The SC first analysed whether the trial court proceeded under Rule 2 or Rule 3 of Order 17 CPC.

Order 17, Rule 2 CPC stated that in the event of non-appearance of a party to the suit, the Court may proceed to dispose of the suit in any of the modes specified in Order IX. However, Explanation to Rule 2 said that if evidence or substantial portion of evidence of any party has been recorded, and such party fails to appear, then the Court may proceed to decide the case. 
Order 17, Rule 3 CPC dealt with situations where a party commits default in producing evidence or witnesses, or in performing any act necessary for the progress of the suit, for which time was granted. In such cases, the Court may proceed to decide the suit, notwithstanding the default, if parties are present( Rule 3(a)). If parties are, or any of them is, absent, the Court may proceed in the manner specified in Order IX(Rule 3(b)).
Order IX Rule 6(a) specified that in the absence of defendant, the Court may proceed the suit ex-parte, if defendant has been duly served.
So, the issue before the Court was whether the decree was passed by taking recourse to Order IX, or by invoking Explanation of Rule 2, Order 17 on the basis of plaintiff's evidence.

The SC ruled that the decree was not passed invoking Explanation 2 of Rule 2, Order 17. That situation will arise only if the party absent is the party who had given evidence. But here, the party absent is the defendant, who had not given evidence.
"in our view, the case at hand would not fall under Explanation to Order 17 Rule 2 of the Code because in order to attract the Explanation, "such party" which has led evidence or has led substantial part of the evidence, if fails to appear on any day to which the hearing of the case is adjourned, the Court may treat "such party" as "present" on that day and is accordingly empowered to proceed in the suit". 

The Court proceeded to observed :
"In this case, the party, who was absent and was proceeded ex parte was the "defendants" and they had not led any evidence whereas it was the plaintiff, who was present and had led his evidence".

It was found that the Court proceeded under Order 17 Rule 2 by taking recourse to Order IX Rule 6(a) against the defendant.

"The Trial Court did proceed to hear the suit ex parte by taking recourse to the Order 9 Rule 6 (a) in terms of Order 17 Rule 2 of the Code because on that day, the plaintiff was present when the suit was called on for hearing whereas the defendants were absent despite service of summons and accordingly the Trial Court passed the preliminary decree. Such decree, in our opinion, was an "ex parte decree" within the meaning of Order 9 Rule 6 (a) read with Order 9 Rule 13 of the Code and, therefore, could be set aside under Order 9 Rule 13 on making out a sufficient ground by the defendants", held the judgment authored by Justice Sapre.
The bench followed the 2003 SC judgment in B. Janakiramaiah Chetty vs. A.K. Parthasarthi & Ors in reaching its conclusion.