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Happy Birth Day Smt. Shruthi Nithin.

Section 152 read with Section 151 of the Code of Civil Procedure,Amendment of plaint schedule and Decree Schedule = The Court below failed to appreciate the legal position in the decisions of the Supreme Court in Babulal v. M/s.Hazari Lal Kishori Lal [1] ; Niyamat Ali Molla v. Sonargon Housing Coop Society Ltd., [2] ; Bela Devi v. Bon Behary Roy [3] and had erroneously dismissed the application of the DHr filed for amendment of the schedule. The Court below ought to have seen that it has got ample power to not only rectify the mistakes that have crept into the decree on account of the Court’s own accidental slip or omission but also to rectify any mistake made by the partiesm for instance a mistake in the description of properties in the deeds. The court below ought to have seen that during the entire proceedings, the identity of the property was not disputed, though the defendant/s had contested the suit on various other grounds. In the execution proceedings, when the draft sale deed was furnished, the office of the Court below had raised an objection in regard to non mentioning of the total extent of the property in the decree schedule, and, therefore, the necessity for seeking the amendment has arisen. The learned Judge erred in observing that the DHr is introducing details of door numbers of third party premiseses as boundaries of the suit schedule property on Eastern and Western sides and also measurements of his choice in the description of the suit schedule property. The court below ought to have seen that by the proposed amendment, the material particulars in regard to the description of the property are not being changed in any manner and that the identity of the property remains the same despite allowing the amendment. The court below ought to have seen that the total extent of the property, which is now being sought to be included by way of amendment is already mentioned in the suit agreement for sale, which is the basis for the suit. In the boundaries mentioned in the original schedule, the names of the occupants of the adjacent properties were mentioned, but, now, the house numbers of the adjoining properties are being shown in the boundaries of the suit schedule property by way of amendment; such, addition of the door numbers of adjacent properties in the boundaries on the East and West would in no manner modify the extent of the property. The Court below ought to have seen that by way of the proposed amendment of the schedule, the DHr is not trying to enlarge the extent of the suit schedule property. The court below ought to have seen that it is having ample power and jurisdiction to grant the relief.’= High Court held that 1. Pratibha Singh v. Shanti Devi Prasad [4] 2. Order dated 06.01.2014 of the Delhi High Court in CM(M).no.1299/2013 and CM.no.19310 of 2013 between Sh. Ashok Kumar Ahuja v. Sh. Gulab Rai Khanchandani 3. Kalkonda Pandu Rangaiah v. Kalkonda Krishnaiah [5] I have gone through the decisions cited. In view of the precedential guidance, the maintainability of the petition filed for amendment of the schedule of the plaint as well as the decree is not in doubt.= whether in the facts and circumstances of the case the amendment as sought for in respect of the schedule of the plaint and the decree shall be permitted or not. In the well considered view of this Court, while considering the said question the Court below has to incidentally consider, apart from other contentions of the parties, the question as to whether the amendment if permitted brings about any drastic or major changes in the description and the identity of the property involved in the lis. - Therefore, the DHr has to in the first place, establish that there will either be no material change, much less a major change, or a change in the identity of the schedule of property despite allowing the amendment of the schedule as prayed for. Now that this Court had held that the application is maintainable, in the well considered view of this Court, the CRP can be disposed of with appropriate directions. = the order impugned is liable to be set aside and that the execution application (EASR) has to be remitted to the Court below for disposal afresh, in strict accordance with the procedure established by law, after directing notices to the respondents and giving them an opportunity to file their counters, if any, and contest the matter. It is made clear that before considering the merits of the said application, the Court below shall register the EASR and give the plaintiff an opportunity to produce any acceptable and relevant evidence, if necessary, by seeking appointment of an advocate commissioner for identification of the property in question, to substantiate the request for amendment of the schedule.

rejecting the applications filed by petitioner seeking passing of a decree against respondent under Order XII Rule 6 C.P.C = A reading of Order XII Rule 6 C.P.C. indicates that it is permissible for a Court to grant a decree in favour of plaintiff if there are admissions of fact made either in the pleading or otherwise, whether orally or in writing, without waiting for the determination of any other question between the parties. Thus, this provision enables the Court to pass a decree without insisting on trial if the defendant admits the claim of plaintiff in its entirety or in part. =By separate orders dt.27-07-2015, the Court below dismissed all the applications. The Court below referred to the defense of respondent in the written statements that the works contracts awarded to petitioner by the then Director of the respondent at exorbitantly high tender premia is contrary to the C.P.W.D. norms, that they are unconscionable, and that the petitioner had procured the said contract through the said Director through inducement for wrongful gain to itself, and so they do not bind the respondent. It held that merely because certain amounts were released to petitioner by respondent, there is no admission of liability to pay to petitioner the balance amounts claimed by it in the respective suits. It held that the nature of the contentions raised by respondent indicates that there is no unequivocal admission as to liability to pay the balance amount. It observed that a combined reading of the written statement and reply to interrogatories does not disclose any unconditional admission on the part of respondent of the suit claim, that when the original contracts and entrustment of additional works are in question, and there is an enquiry initiated against the then Director of respondent by a retired High Court Judge, all the issues involved in the suits require to be determined after full trial= HIGH COURT HELD THAT Although learned counsel for petitioner sought to contend that there is no specific denial of the allegations made in the plaint by respondent in the written statement and it amounts to admission of liability by respondent under Order VIII Rule 5 C.P.C., I am unable to agree with the said submission. I am of the considered opinion that in the present case, taking into account the pleadings of the written statement in its entirety, by necessary implication, the allegations in the plaint in so far as the liability of respondent are concerned, are clearly denied.

Every judicial authority is required to assign reasons for the conclusions drawn by it. Reasons are the life links - No interim injunction should be granted on cryptic lines “Heard the counsel for petitioner. Perused records. Upon consideration of the matter basing on the prima facie case in balance of convenience and also irreparable loss leaning towards the petitioner it is found desirable to issue Interim Injunction until further orders. Issue Interim Injunction accordingly restraining the respondent from terminating the general services agreement dt.01-10-2014 vide agreement No.CW 558370 including amended agreement dt.04-02-2015, and notice. Posted to 15- 02-2016. Order 39 R.3(a) CPC shall be complied with. = No reasons are assigned why a prima facie case is said to have been made out, where the balance of convenience lies and as to the nature of irreparable loss that might occasion to the petitioner in the O.P. Every judicial authority is required to assign reasons for the conclusions drawn by it. Reasons are the life links. They offer guidance as to on what lines the mind of the authority has worked. Since, no reasons are assigned by the Court while passing this order, we have been left guessing. The petitioner is an Information Technology provider, which employs a large number of employees, as its force members. It had entered into an agreement with the respondent herein, who is the petitioner in the O.P. which runs a restaurant and also provides food supplies services. Therefore, a careful assessment as to whether it is really expedient to permit such an agreement to hold the field, pending the O.P or not, ought to have been assessed carefully. Only on the short ground, we set-aside the docket order passed on 03.02.2016 by the Court below and restore the O.P. together with any interlocutory applications lying therein for consideration afresh, in accordance with law and duly assigning reasons for its conclusion

Defendant Not permitted to say that the plaintiff signatures of Plaintiff are forged , being an octogenarian might not properly recognize the signature due to loss of sight = The petitioner filed a petition under Order 26 Rule 10-A of Civil Procedure Code r/w Section 45 of the Evidence Act, stating that the respondent-plaintiff refused to file the suit against the petitioner, and it is the sons of the respondent-plaintiff who have forged the signature of the plaintiff on the plaint and filed the suit. And hence, the petitioner prayed the Court below to send the admitted signature of the plaintiff on Ex.B1 along with the signature on the plaint for expert comparison. The trial Court dismissed the application by observing that the plaintiff was examined as PW1 and she categorically stated that she filed the suit against the petitioner-defendant. The trial Court further observed that the plaintiff being a lady aged 82 years, might not recognize her signature but her cross examination supports her pleadings in the plaint, and as the suit is at the stage of arguments, the defendant cannot question that the plaintiff has not filed suit against him.

No interim injunction when prima facie case is not in favour of plaintiffs and so also balance of convenience. = Admittedly, there were earlier suits between the parties in O.S.No.25 of 2012 which has become final so also O.S.No.15 of 2002 and both the suits were held against plaintiffs-appellants herein. The subject matter of injunction petition is Ac.0.30 gts. of land, which defendant No.16 claimed through a registered gift deed executed by defendant No.7. The suit filed challenging the gift deed was also held against plaintiffs. Trial Court on a consideration of entire material including the orders and decrees in the earlier suits O.S.No.25 of 2012 and O.S.No.15 of 2002 held that prima facie case is not in favour of plaintiffs and so also balance of convenience. Trial Court recording such findings and having held that plaintiffs are not entitled for the relief of temporary injunction, observed that defendants being parties to the suit if any decree is passed it is binding on them and as the relief of injunction is equitable, such relief cannot be granted to the parties who approached the Court without placing any prima facie material. 6. Considering the submissions of both parties instead of going into the merits and demerits of the case, I feel by directing trial Court to expedite trial the ends of justice would be met

Executing court can not apportion liabilities of Jdrs = When the respondents-judgments debtors failed to pay the amount, the decree holder filed E.P.No.80 of 2015 before the VIII Junior Civil Judge, City Civil Courts, Hyderabad, seeking to issue warrants and realize the award amount from the salaries of the respondents. The trial Court on 24.04.2015 issued warrants against respondents 1, 2, 3 & 4 for recovering an amount of Rs.48,027/- each towards their portion of liability. =there is no provision of sharing the decretal amount among the judgment-debtors. Under law, the decree-holder can execute the decree against any one of the judgment-debtors or all of them. The order passed by the Executing Court is therefore, erroneous and misconceived.

admitting secondary evidence i.e. photo copies of Fax Message Receipts= When the original Fax message was faded or erased due to time log, Xerox copies of the same can be received as secondary evidence = It cannot be denied that the receipt obtained on sending of a Fax Message is an electronic record which is printed on paper and would fall within the scope of Section 65 (B) of the Act, 1872. -Under Section 65 (C) of the Act, 1872, when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time, secondary evidence may be given of the existence, condition, or contents of such document. In the present case, the original of the Fax Messages had been filed along with the E.O.P. and due to lapse of time, their contents got erased. It cannot be said that there was any default or neglect on the part of the 1 st respondent in the erasure of the contents on the originals of the Fax Receipts filed along with the E.O.P. The learned counsel for the petitioner was not able to point out how the 1 st respondent could be said to be negligent. He also does not dispute the fact that print outs such as those obtained from fax machines as well as Automatic Teller Machines would fade with the passage of time. In the light of this admitted factual position which the Court has to take judicial notice, it cannot be said that 1 st respondent was not entitled to file photo copies of the original of the documents (Fax Sending Receipts). So the Court below had not committed any error in permitting them to be received as secondary evidence. I do not find any error of jurisdiction in the order passed by the Court below warranting interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India.

Contempt of court after passing injunction decree = when photos shows only repair of damaged wall - it can not be said the Jdr violated the injunction orders = These averments would disclose that even by the time, the suit was instituted, the house belonging to defendants was already demolished in order to construct a new house within their property. Photograph at page No. 41 filed along with this revision would show that joint wall was partially affected. Photographs filed by the plaintiff along with the vacate petition would disclose that by December, 2015, defendants constructed a new house and affected portion of the wall is also now filled up. These photographs are testimony to the fact that after the suit is decreed, no demolition is caused and in fact the small offending portion of the joint wall is now filled. =Though, the Court below elaborately discussed the rival contentions, without giving any findings on the rival contentions, allowed the Execution Petition and ordered for arrest. It is not stated how the defendants disobeyed the decree passed by the Court below, much less, such disobedience is not held as deliberate and willful. On the contrary, material on record would disclose that no damage whatsoever is caused to the schedule joint wall by the defendants after the decree was passed. =The order under revision is unsustainable and it is accordingly set aside. In the result, the revision is allowed.

15.The import of Rules 5 to 7 of the S.C. & S.T. (Prevention of Atrocities) Rules could be mentioned that an Officer in charge of a police station on receipt of every information relating to the commission of an offence under the Act, shall reduce the same to writing and may send the substance of such report in writing by post to the Superintendent of Police, who after investigation either by himself or by a Police Officer not below the rank of Deputy Superintendent of Police shall make an order in writing to the officer-in-charge of the concerned Police Station to enter the substance of that information to be entered in the book to be maintained by that Police Station; that if any atrocity is committed on the members of the S.C. and S.T. communities within his jurisdiction, the District Magistrate or Sub Divisional Magistrate or D.S.P. shall immediately visit the place of occurrence to assess the extent of atrocity, loss of life or damage to the property and submit a report forthwith to the Government besides doing such other things as contemplated under Rule 6 and under Rule 7. The Investigating Officer shall be a Police Officer not below the rank of a Deputy Superintendent of Police and the said Investigating Office shall be appointed by the State Government/Director General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time and on investigation, the said Officer shall submit the report to the Superintendent of Police who would in turn forward the same to the Director General of Police of the State Government; that the Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer-in-charge of prosecution and the Director General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer. 16. While such being the procedures contemplated by the Rules prescribed there under, it is a mystery as to why the petitioner has not chosen to follow these procedures so as to make his complaint before the authorities concerned, but bypassing the procedures, the petitioner has gone straight to the Magistrate in filing the private complaint. ` 17. On the part of the Magistrate too, without having regard to these Rules, he has entertained the complaint filed by the petitioner and has forwarded the same as though it is like the other complaints normally being filed before him, which are general in nature. Since the S.C. & S.T. (Prevention of Atrocities) Act being a Special Act, having the over-riding effect on other general laws, the Magistrate should have outright rejected the complaint directing the petitioner to seek resort to the relevant rules of procedures established by law and since the Magistrate did not adopt the procedures contemplated there under law, it has given way for many precipitations. 18. On the part of the petitioner too, though he now comes forward to allege that the Investigating Officer must be the Deputy Superintendent of Police and not an Inspector of Police, he himself has not chosen to file the complaint in the manner contemplated under the Rules, but for no reason assigned, has chosen to file the private complaint before the Magistrate. 19. When the Rules contemplate as to where the complaint is to be lodged, without trying that source and lodging the complaint before that particular authority before whom the complaint would lie, the petitioner, for no reason assigned, has filed the same before the Magistrate seeking direction, which is irregular, as a result of which every thing has gone wrong in the whole affair connecting to the complaint. 2003 http://judis.nic.in/judis_chennai/qrydisp.aspx?filename=1265