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Showing posts from May, 2015

No Judicial Officer expected to shut his mouth in Bench

No Judicial Officer is expected to sit with mouth shut in open court - No Transfer Petition Maintainable on that ground alone - Trail Judge - opined that Or.38, rule 5 C.P.C. is a proper petition rather than Or.39, rule 1 and 2 C.P.C. - adjourned the case several times as the respondent absent despite of allegations that the respondents are going to alienate the properties - their lordships held that expressing an opinion is not an advise to the party and further held that A Judge, who is presiding the Court, cannot be expected to be a mere silent spectator.  In fact, Judges have to play an active role. They should not and need not allow the parties or advocates to argue for hours together on the same points or on an issue when it is clear that in an application or a suit or a proceeding is not maintainable.  There is nothing wrong if a Judge openly says that a particular petition is not maintainable.  It cannot be treated as an advise to a party. Sometimes, Judges may be seeking furt…

Recall of Witnesses for Cross Examination – Old suit for Partition – Despite of giving one or two opportunities – petitioner not cooperated and conducted cross examination - Aliment of petitioner and his family members is not the sufficient cause for recalling the witnesses - as the Cross Examination can be done by his counsel by taking proper instructions from the petitioner – Trial court dismissed the same – High court confirmed the same and dismissed the revision - 2015-Telangana & A.P.-MSKLAWREPORTS

Seeking recall of PWs.1 to 3 for cross-examination on his behalf – suit for partition - PW.1 filed his affidavit in lieu of chief-examination on 06.02.2013 and thereafter, the matter was posted for cross-examination of PW.1 on 15.02.2013 and 21.02.2013 and again, it was adjourned to 01.03.2013 and 08.03.2013. -  The petitioner herein, who is the 1st defendant in the suit, has failed to cross-examine PW.1.  - In the meantime, PWs.2 and 3 have filed their chief affidavits and they were cross-examined by defendant No.4.  - Now at this stage, recall petition of PWs.1 to 3 is filed.            - Reasons furnished that the petitioner is nearly 70 year old man having certain health problems and his wife and son were challenged persons and he has to take good care of them. - All these factors cumulatively, came in the way of the petitioner herein in cross-examining PWs.1 to 3.  - This explanation has not found favour of the trial Court, as no specific ailment has been set out and further, no …

Or.1, rule 10 of C.P.C.- suit for specific performance - purchasers pending suit filed impleading petition - their lordships allowed the same subject to payment of costs of Rs.5,000/- to the plaintiff with a condition that they cannot be permitted to take defences which are not available to their vendors -2015 Telangana & A.P. MSKLAWREPROTS

Or.1, rule 10 of C.P.C.- suit for specific performance - purchasers pending suit filed impleading petition - their lordships allowed the same with a rider that they are permitted to take defence other than their vendors - subject to payment of costs of Rs.5,000/- to the plaintiff with a condition that
they cannot be permitted to take defences which are not available to their vendors -2015 Telangana & A.P. MSKLAWREPROTS

It is well settled in law that in case of impleadment of
parties, it is not the jurisdiction of the Court, but the judicial
discretion which has to be exercised keeping in mind all the
facts and circumstances of a particular case.
In the present
case, the application is filed by persons, who claimed to have
purchased a part of property under a registered sale deed
pending the suit.
Though they ought to have been aware of
the paper publication taken by the Plaintiff prior to the
institution of the suit and the pendency of the suit, as the
vendors were made parties t…

Therefore, by virtue of sub-section (2) of Section 68 the assets, rights and liabilities of APBCL now stand apportioned between the State of Andhra Pradesh and State of Telangana in the manner as provided in Section 53 of Act, 2014. Section 53 provides subject to the agreement the aforesaid assets and liabilities of the Corporation, shall stand apportioned on the basis of population ratio. The petitioner has not acquired nor can acquire in view of above legal position any property from APBCL nor the liability thereof. The State of Telangana has acquired these assets and properties and liability of APBCL, being the recorded assessee proportionately. Therefore, it is absurd to contend that the writ petitioner is the successor in interest of APBCL. It is absolutely separate legal entity, as rightly contended by Mr. K. Ramakrishna Reddy, the learned Advocate General appearing for the writ petitioner, that it has not started business nor any income has been derived. It does not appear from object clause of Memorandum of Association that it has acquired any rights, assets and properties of APBCL. Thus, the question of shouldering liability by the writ petitioner also does not arise. We are of the view that just because the petitioner paid tax dues on mistaken application of law, it cannot be precedent for recovery for the simple reason that illegal and wrongful action cannot be precedent, furthermore there cannot be estoppel as against provision of law. 13. Therefore, we hold that the actions taken by the Revenue against the writ petitioner are without jurisdiction and wholly illegal. 14. The alleged dues of APBCL, in relation to the assessment year 2012-13 after the appointed day, can be recovered from the successor State Governments in terms of Section 68 (2) of Act 2014, as all these dues being part of liability can be apportioned accordingly. In the event, State of Telangana does not pay the proportionate liability of the tax dues for the assessment year 2012-13 or previous thereto, if any, it would be open for the respondents to recover the same from the State of Telangana, since It is to share the proportionate liability along with assets of the erstwhile APBCL which was again a separate legal entity and an assessee. We are of the view that the writ petitioner cannot be equated with the Government in order to get Constitutional immunity from payment of taxes. 15. We, therefore, set aside and quash the orders and notices issued against the writ petitioner. However, liberty is given to the respondent officials to recover the dues from the State of Telangana, if it is not paid, and that can only be done after issuance of notice under Section 226 of the Act, 1961.

THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HONBLE SRI SANJAY KUMAR              

WRIT PETITION Nos.5606 of 2015  

01-05-2015

Telangana State Beverage Corporation Limited, rep.by its Managing Director,
Prohibition & Excise Complex,M.J. Road, Nampaly, Hyderabad-500 001.Petitioner  

1.Union of India, Ministry of Finance, New Delhi, represented by its
Secretary.2. Tax Revenue Recovery Officer-I, Office of Commissioner of Income
Tax-I, Room No.407, 4th Floor, Ayakar Bhavan,    Basheerbagh, Hyderabad-500004.
3. The Commissioner of Income Tax, Ayakar Bhavan, Basheerbagh,  
Hyderabad.Respondents  

Counsel for the petitioner: Sri K. Ramakrishna Reddy,          
                              Advocate General for State of Telangana


Counsel for the Respondent No.1: Sri B. Narayana Reddy, Assistant
                                  Solicitor General of India

Counsel for Respondent Nos.2 & 3 : Sri J.V. Prasad
Standing Counsel for Income Tax                

<Gist :

Whether the amendment petition ousting jurisdiction can be considered ? - yes - 2015 A.P.(1993) MSKLAWREPORTS

Order 6, Rule 17 C.P.C. runs as follows:- 17. "The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties." It is necessary to notice the provisions of Order 7, Rule 10 C.P.C. at this juncture.  The same is extracted hereunder:- 10. (1) (Subject to the provisions of the Rule 10A, the plaint shall) at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted." A combined reading of both the provisions make it abundantly clear to one's mind that Order 6, Rule 17 C.P.C. makes it obligatory on the Court to consider an application for amendment in any pending suit. On a consideration of the said application, if it exceeds the jurisdiction of the said Court, it has to invoke the provisions of Rul…

constitution of a separate High Court for the 2nd and 3rd respondent States under Article 214 of the Constitution of India read with Section 32 of the Andhra Pradesh Reorganization Act, 2014 Under those circumstances, we dispose of this matter with the following directions: (i) The 3rd respondent is directed to identify and locate the site where the permanent High Court of the State of Andhra Pradesh would be constituted in the territory of Andhra Pradesh and to apprise the Honble Chief Justice of this High Court of the same, and, who, is requested to take a decision in consultation with the Chief Minister of Andhra Pradesh regarding choice of location of the permanent High Court. (ii) The Honble Chief Minister and the Honble Chief Justice are requested to take a decision in consultation with each other to finalise on the question of constitution of High Court Building, Administrative Building, Residences of the Honble Judges and that of Officers of the Court and staff quarters as early as possible preferably within six (6) months from the date of receipt of the copy of the order. (iii) The 3rd respondent is directed to take a decision on the question of allocation of funds and thereafter release if allocation is made to incur the expenses for creation of the permanent High Court as early as possible, preferably within a period of three (3) months from the date of communication of this order. (iv) The Honble Chief Justice of this High Court is requested to examine the feasibility of arranging temporary Benches for sitting of the Honble Judges of High Court under sub- section (3) of Section 51 of the States Reorganisation Act, 1956, pending constitution of permanent High Court, in consultation with the Chief Minister of State of Andhra Pradesh who is to render all help providing necessary infrastructure for sitting of the Honble Judges as a temporary measure, as above. We request the Honble Chief Justice to take a decision within a period of two months from the date of this order. Consequently, pending miscellaneous petitions, if any, shall also stand closed.

THE HONBLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HONBLE SRI  SANJAY KUMAR              

PUBLIC INTEREST LITIGATION No.59 OF 2015    

01-05-2015

T.Dhangopal Rao ---Petitioner

1.Union of India, through its Secretary,  Ministry of  Law and Justice, Shastri
Bhawan, New Delhi, and others. Respondents

Counsel for the petitioner: Party-in-Person (T.Dhangopal Rao)
                            Sri E. Manohar, Senior Counsel
                            (Amicus Curiae)
                           Sri G. Vidya Sagar, Senior Counsel
                           (Amicus Curiae)

Counsel for the Respondent No.1: Sri B. Narayana Reddy, Assistant
                                  Solicitor General of India

Counsel for the Respondent No.2 : Sri K. Ramakrishna Reddy,                  
                                  Advocate General for State of Telangana

Counsel for the Respondent No.3 :  Sri P. Venugopal,    
                                   Advocate General for State of A.P.
Counse…

When the party of the suit attested the Will Deed and when not disputed his signature as attestatror - and when only disputes the bequeathing of property - the question of proof of will does not arise -2015 A.P.(2006) MSKLAWREPORTS.

another interesting feature is that the plaintiff attested the said document as one of the attesters by affixing her thumb impression. The plaintiff did not dispute the thumb impression and took a plea that even if the thumb impression is obtained on the Will, she was a minor by the date of the execution of the Will, therefore, it has no effect. But on record, it came to light that the plaintiff was a major by the date of the execution of the Will and she never disputed the attestation of the Will, though she disputed bequeathing of property in favour of the second defendant.

The learned Counsel for the appellant submitted that though there was some discrepancy in describing the paper used for the Will, the contents have been effectively proved by examining all the attestors and son of the scribe. The said Will was executed out of love and affection towards the second defendant by the mother of the plaintiff as the second defendant's father gave them shelter and brought them up by …