OLR Nov 2022

O.L.R

1.              Law on Adoption– Question of adoption in property matters – The law is fairly settled that the evidence in support of an adoption must be sufficient to satisfy the very grave and serious onus that rests upon any person.  Sukra Majhi (Since dead) through her legal rep. & Ors. v. Hambira Majhi (Since dead) through his legal rep. & Ors. 2022 (II) OLR – 826. 

2.              Section 100– Assailing judgment and decree – Question of adoption in suit involving immovable property – Held, the factum of adoption must be proved in same way as any other fact – Performance of giving  and taking ceremony not proved – Appeal dismissed.  Sukra Majhi (Since dead) through her legal rep. & Ors. v. Hambira Majhi (Since dead) through his legal rep. & Ors. 2022 (II) OLR – 826. 

3.              Order 6, Rule 17 -  Amendment of pleadings – Powers to amend a petition under Order 6 Rule 17 of CPC could not be exercised as to permit new grounds of charges – Mechanical disposal of the amendment application and allowing such application is illegal exercise of power.  Ashok Kumar Gedi v. Jyotrimayee Behera & Ors. 2022 (ii) OLR – 863. 

4.              Order VIII Rule 1 – Provision of Order VIII, Rule 1 CPC is directory in nature in non-commercial suit.  Bijay Kumar Rout and others v. Ashok Kumar Maity and others 2022 (ii) OLR – 838. 

5.              Article 226 and 227 – A delinquent employee has the right that the disciplinary proceedings against him are concluded expeditiously.  Iswara Chandra Mishra v. State of Odisha and Ors. 2022 (II) OLR – 866.

6.              Articles 226 and 227 – Quarters occupied by one ‘K’ who is not wife of the petitioner – Petitioner not liable to pay the house rent and electricity charge.  Satyananda Nayak v. Union of India and Others 2022 (II) OLR – 737.

7.              Contract Act, 1872 – Section 128 The liability of the surety is coextensive with that of the principal debtor unless it is otherwise provided by the contract.  Kshitish Kumar Mohanta v. The Branch Manager, Union Bank of India & Others 2022 (II) OLR – 872. 

8.              Criminal Jurisprudence – Mere involvement in a criminal case cannot be treated as proof of guilt.  Rajib Lochan Biswal v. State of Odisha & others 2022 (II) OLR – 772.

9.              Section 197 Cr.P.C – Allegation of assault and abuse by Police Officer in Police Station – Held, since the overt act not being part of official duty so as to abuse, assault and threaten the Petitioner and considering the same, the learned Court below could not have reached at a decision that sanction to be necessary.  Smt. Sumati Nayak v. State of Odisha and another 2022 (II) OLR – 921.

10.           Section 437 (6) Cr.P.C. – Conclusion of trial in sixty days – The provision as a whole is not mandatory rather the same is directory in nature.  Biswajeet Barik v. State of Odisha 2022 (II) OLR – 843. 

11.           Hindu Marriage Act, 1955 – Sections 10 and 13–Judicial separation and Divorce-Husband filed a petition for judicial separation-Later husband filed a petition for amendment to add a prayer for “Divorce” –Family Court allowed the amendment-Challenged by wife-Whether a proceeding for judicial separation can be converted to Divorce-Held, No.-Direction issued. Smitaprativa Sahoo v. Ramakrishna Behera 2022 (II) OLR – 861. 

12.           Jurisprudence- It’s binding nature-Issue once decided by the Court of law, is also binding on the administrative and executive Authorities until and unless the same is modified an veried by the higher judiciary or by way of making appropriate legislation, it is made inoperative.  Pratima Dash v. Union of India and others 2022 (II) OLR – 814. 

13.           Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 – Forum available after Section 41 – A forum has to be available to a person who was to be aggrieved, after Section 41 notification has been issued, with any order having been passed or anything having been done during the consolidation operations affecting his right, title and interest.   Nilamani Sahoo (Dead) v. Bata Krushna Sahoo (Dead) & Anr. 2022 (II) OLR – 893. 

14.           Section 51 – Civil Courts jurisdiction would be available after closure of proceeding on following circumstances – Explained. 

(i)              Cause of action accruing after closure of the consolidation operations,

(ii)           If the consolidation authorities had taken the decision without complying with the provisions of the Act or had not acted in conformity with the fundamental principle of judicial procedure (Which would take within its fold the case of violation of natural justice). 

(iii)         Obtaining of order from the hand(s) of consolidation authorities by playing fraud on the party who seeks to approach the Civil Court. 

Nilamani Sahoo (Dead) v. Bata Krushna Sahoo (dead) & Anr. 2022 (II) OLR–893. 

15.           Registration Act, 1908-Section 22(A)-Orissa Amendment-It is true to say that the Registering Authority has no power to make a roving inquiry like a civil Court or any other competent authority so empowered.  Sub-Registrar-cum-Revenue Officer, Talcher & Another v. Suphala Badakunnar & Ors. 2022 (II) OLR -793.

16.           Section 8(4)-Hon’ble Apex Court declared the section as ultra vires to the Constitution of India and made it inoperative prospectively-(Case law discussed).  Mohammed Moquim v. State of Odisha (Vigilance) 2022 (II) OLR – 906. 

17.           Service – The purport of the circulars is, if the proceeding is not concluded during the life time of the government servant, it has to be dropped.  Dr. Keertidhara Das v. State of Odisha and others 2022 (II) OLR – 749. 

18.           Department proceedings after superannuation – it is settled position of law that once employee has superannuated, there is cessation of relationship between the employer and employee.  Bhagirathi Nayak v. Odisha State Civil Supply Corporation Ltd. & Ors. 2022 (II) OLR-848.

19.           Transfer of Property Act, 1882 – Section 52 – Doctrine of lis pendens – There remains no iota of doubt that even if a transaction taken place in respect of the suit property after dismissal of the suit and before filing of the appeal.  Rama Chandra Nayak v. Jadu Simadri and others 2022 (II) OLR – 889. 

20.           Seniority – The Court while invalidating the guideline of the Government fixing the seniority of teachers of non-government Colleges for the purpose of appointment f Principal and HODs where by the inter se seniority was to be adjudged according to te date of birth, summarised and brief points as follows:

(i)             The effective date of selection has to be understood in the context of the Service Rules under which the appointment is made – It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be. 

(ii)           Inter se seniority in a particular service has to be determined as per the service rules – The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from the different sources – Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Article 14 and 16 of the Constitution – (Case Law discussed) (Para – 14)  Kabita Mohapatra v. State of Odisha and Ors 2022 (II) OLR – 822.

21.           In Jagir Singh v. The State (Delhi), (1975)  SCC 562, the Supreme Court of India disbelieved eye-witnesses who had not informed the police at the first available instance about the assault on the deceased by the accused.  This was held to be unnatural conduct on the part of the eye-witnesses and the benefit of doubt was granted to the accused.  Milu Purty v. State of Odisha 2022 (II) OLR-854. 

22.           In Sonia Bahera v. State of Orissa, (1983) 2 SCC 327, the eye-witness did not disclose the incident to anybody on the day of occurrence.  It was observed “their conduct in not telling anybody about the incident on the date of the incident also makes their evidence not wornthy of acceptance.” Milu Purty v. State of Odisha 2022 (II) OLR-854.

23.           Again, in State of Karnataka v. Venkatesh, 1992 Supp (1) SCC 539, the failure by the so-called eye-witness to disclose what they had seen immediately to the police at the first available opportunity was held to render their testimonies untrustworthy.  Milu Purty v. State of Odisha 2022 (II) OLR-854.