A.P.H.C.CASE LAW - ADVOCATEMMMOHAN

The issue regarding occupation of premises by respondent No. 1 in the guise of decree for injunction was not conclusively adjudicated except an observation made by the lower Appellate Court that respondent No. 1 has a moral obligation to vacate the premises. Therefore, in the absence of any enforceable order or decree granted in favour of the petitioner, he is not entitled to invoke the provisions of Section 94 of C.P.C. At best, the petitioner could have invoked the provisions of Section 144 of C.P.C. for restitution if he was dispossessed based on the interim order or decree for injunction by respondent No. 1.

when the sale agreement was not proved - he has no locus standi to file this case - the appellant had no title to the suit land. All that he had claimed to possess in relation to the suit land was an agreement dated 24.04.1980 to purchase the suit land from its owner (Shri Ved Prakash Kakaria). The appellant, as mentioned above, failed to prove the agreement. In this view of the matter, the appellant had no prima facie case in his favour to file a suit nor he had even any locus to file the suit in relation to the suit land once the agreement was held not proved. The suit was, however, filed by the appellant almost after 12 years from the date of agreement and that too it was for declaration and mandatory injunction but not for specific performance of agreement. It was, in our opinion, a misconceived suit and was, therefore, rightly dismissed. Third, the suit was otherwise hopelessly barred by limitation because, as mentioned above, the date of agreement is 24.04.1980 whereas the suit was filed on 10.10.1992. ; Even the Will was rightly held not proved by the Courts below and we are inclined to uphold the finding on this issue too. Indeed when the deceased has two sons and one daughter (respondent Nos.1-3), why should he execute a Will in appellant’s favour, who was not related to him.

under Section 325 IPC. jail sentence can not be substituted by fine= The High Court, in our view, ought to have either upheld the award of jail sentence of four years awarded by the Sessions Court or reduce the jail sentence to any reasonable term but it had no jurisdiction to fully set aside the jail sentence and substitute it by imposing only fine of Rs.10,000/-.

. Pecuniary damages (Special Damages): (i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure; (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. B. Non-pecuniary damages (General Damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries; 5 (v) Loss of amenities (and/or loss of prospects of marriage); (vi) Loss of expectation of life (shortening of normal longevity)=After completion of his 10+2, the appellant had passed Diploma in Applied Research International, New Delhi which is a condition precedent for joining Merchant Navy. - aged 22 years, un married, 50% disablity to the right arm- he cannot join Merchant Navy. Even, it would be very difficult for him to get an alternate job easily, particularly in view of 50% permanent disability to his right arm. Thus, the appellant is awarded Rs.10,00,000/- (Rupees Ten Lacs only) on account of the expenses relating to treatment, hospitalization, medicines etc, loss of earnings during the course of treatment and loss of future earnings on 8 account of permanent disability. The appellant is awarded Rs.3,00,000/- (Rupees Three Lacs only) for future medical expenses. The appellant must have suffered pain, agony and trauma as a consequence of injuries. The Court can take judicial notice of the fact that he may not have bright future as before. He was just 22 years of age at the time of accident and was unmarried. It is unfortunate that he had to suffer at this young age when he was thinking of his bright future life. Having regard to the material on record, we award Rs.3,00,000/-(Rupees Three Lacs only) towards pain, agony and trauma as a consequence of injuries, and Rs.3,00,000/-(Rupees Three Lacs only) towards loss of amenities(including loss of prospects of marriage) and Rs.3,00,000/-(Rupees Three Lacs only) towards loss of expectation of life. Thus, on all counts, the appellant is awarded, in total, a compensation of Rs.22,00,000/-(Rupees Twenty Two Lacs only), instead of Rs.8,80,000/-(Rupees Eight Lacs Eighty Thousand only) awarded by the High Court, along with uniform rate of interest @ 8% per annum from the date of filing of the claim petition before the Motor Accident Claims Tribunal till 9 its realization. It is also directed that the payment of compensation with interest shall be made to the appellant within three months from today

In ASHWIN S. MEHTA AND ANOTHER v. CUSTODIAN AND OTHERS the Honourable Apex Court at paragraph No.70, held as under: Even if such a decree is set aside, the interest of the bona fide purchaser in an auction-sale is saved. In JANATHA TEXTILES AND OTHERS the Honourable Apex Court ruled at paragraph No.18 as follows: It is an established principle of law that in a third party auction-purchasers interest in the auctioned property continues to be protected notwithstanding that the underlying decree is subsequently set aside or otherwise. This principle has been stated and reaffirmed in a number of judicial pronouncements by the Privy Council and this Court. Reliance has been placed on the following decisions In SADASHIV PRASAD SINGH v. HARENDAR SINGH AND OTHERS the Honourable Apex Court held that the rights of the auction purchaser in the property purchased cannot be extinguished except in cases where the said purchase can be assailed on the grounds of fraud or collusion. Therefore, in view of the law laid down by the Honourable Apex Court in the above referred judgments, this Court finds sufficient force in the contention of the learned counsel for the petitioner that, despite the factum of the ex parte decree being set aside, the petitioner herein is entitled to protect his rights in respect of the subject property which he purchased in the Court auction. But in view of the earlier orders of this Court, confirming the orders passed by the Court below in the Revision filed by the decree-holder, this Civil Revision Petition is liable to be dismissed.

By a Notification bearing No.102/2007-Customs issued on 14-09-2007 in exercise of the powers conferred by Section 25 (1) of the Customs Act, 1962, the Government of India exempted the goods falling within the First Schedule to the Customs Tariff Act, 1975, from the whole of the additional duty of the customs leviable under Section 3 (5) of the Customs Tariff Act, 1975, when imported into India for subsequent sale. Paragraph 2 of the said notification gave a list of conditions to be fulfilled by the importer, for availing the benefit of exemption. 5. The respondent-assessee filed claims for refund with the jurisdictional Customs Officer. All the claims made by the respondent- assessee were partially allowed by the jurisdictional Customs Officer.The disallowance of a part of the refund claim was on two grounds viz., (1) that the timber logs imported by the respondent- assessee were not sold as such by them, but were sold locally after sawning them and cutting them into smaller sizes; and (2) that the logs cut into smaller sizes could not correlate to the items described in the import packing list.

in VINODAN T. V/s. UNIVERSITY OF CALICUT . It is manifest from the aforestated observation of the Supreme Court that where the facts in a summary suit are of such a nature as to entitle the defendant to interrogate the plaintiff or to cross-examine his witnesses, leave should not be denied. In effect, the right of the defendant to interrogate/cross-examine the plaintiff or his witnesses flows from the leave to defend granted to him under Order 37 Rule 3(5) CPC and not independently. In consequence, it is not open to the defendant to now claim that his right to cross-examine the plaintiff would not be part and parcel of his leave to defend the suit. As such a right cannot be claimed automatically by the defendant and leave to defend was, in fact, granted to him subject to the condition of a pre-deposit, it is not open to the defendant to get over the same and indirectly try to defend the suit by asking for permission to cross-examine the plaintiff. = Order 37 Rule 3(5) CPC and not independently. In consequence, it is not open to the defendant to now claim that his right to cross-examine the plaintiff would not be part and parcel of his leave to defend the suit. As such a right cannot be claimed automatically by the defendant and leave to defend was, in fact, granted to him subject to the condition of a pre-deposit, it is not open to the defendant to get over the same and indirectly try to defend the suit by asking for permission to cross-examine the plaintiff. =The trial Court therefore erred in drawing a parallel from a principle that would apply in an ordinary suit and deciding the I.A. in favour of the defendant. Unless and until the petitioner/ defendant complies with the conditional order, whereby he was granted leave to defend the suit in O.S.No.954 of 2015, it is not open to him to seek to cross-examine either the plaintiff or any witness examined on his behalf or advance arguments. The order under revision is accordingly set aside and the civil revision petition is allowed

whether a prima facie case is made out to proceed against the accused. Under Section 319 CrPC, though the test of prima facie case is the same, the degree of satisfaction that is required is much stricter. = Power under Section 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.=we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if it appears from the evidence that any person not being the accused has committed any offence is clear from the words for which such person could be tried together with the accused. The words used are not for which such person could be convicted. There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused. (emphasis supplied). Having regard to the above, the Criminal Petition is allowed by setting aside the impugned order and the matter is remitted back to the trial Court if at all from any further evidence to take cognizance if any offence made out so to take by left open all available defences in such event of taking cognizance to the petitioner among others.