OLR November 2022

OLR

1.              Burden of Proof:-evidence – The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardanashin lady to establish that the said document was executed by her after clearly understanding the nature of the transaction-it should be established that it was not only her physical act but also her mental act and also by other evidence, direct and circumstantial.  Sarojini Senapati & others V. Surendra Pradhan & Others 2022 (II) OLR 486.

2.              CIVIL PROCEDURE CODE, 1908 – Order IX, Rule 13- Trial Court refused to set aside the ex-parte judgment-First appellate court allowed the appeal by setting aside the order passed by the Trial Court and also passed order to restore the suit to file and thereafter to dispose of the suit affording opportunity to the parties to adduce their respective evidence and rebuttal evidence-Original plaintiff presented petitioner CMP under Arts 226 and 227 of the Constitution before the High Court-High Court set aside the ex-parte judgment and decree solely on the ground that as no written statement was filed on behalf of the defendant 2 and 3 the re-opening of the suit would become futile-Held, fell into an error in not setting aside the ex-parte judgment since on setting aside the ex-parte decree and on restoration of the suit the defendants may not be permitted to file the written statement as no written statement was filed but they can be permitted to participate in the suit proceedings and cross-examination the witnesses.  Nanda Dulal Pradhan & Anr. V. Dibakar Pradhan & Anr. 2022 (II) OLR (SC)-369. 

3.              COMPANY LAW-Liability of Directors-Offence under Sections 138 and 141 of the N.I. Act – Offences by companies – When the accused is the Managing Director or a Joint Managing Director of a company, it is not necessary to make an averment in the complainant that he is in charge of and is responsible to the company for the conduct of the business of the company – A Director or an Officer of the company who signed the cheque renders himself liable in case of dishonour.  Sunita Palita & Others V. M/s. Panchami Stopne Quarry 2022 (II) OLR (SC) – 496. 

4.              CONSTITUTION OF INDIA, 1950-Article 226 and 227 – Prayer to quash orders and restore the seniority of the petitioner – Deemed date of joining of the petitioner and the opposite party No.4 and 5 is same, date of birth was taken as a yardstick for determining seniority – Held, the trust rule is that seniority is determined on basis of date of appointment – Writ petition allowed. 

Service – Rule of seniority – The thrust of the rule is that seniority is determined on the basis of date of appointment – The legal footprint on the issue as left by the Supreme Court has firmly shaped the legal conduct at the executive domain on inter se seniority issue.  Ajaya Kumar Mohapatra V. State of Odisha & Ors. 2022 (II) OLR – 510. 

       The Supreme Court in the case of Prem Kumar Verma V. Union of India, held that;

       “the principal mandate of the rule is that seniority is determined on the basis of date of appointment.  Proviso (2) lists out two rules.  The first is that those selected and appointed through a prior selection would rank senior to those selected and appointed though a later selection process…….  The second limb of the second proviso clarifies that when merit based, or seniority based promotions are resorted to, the applicable norm would be seniority in the feeder cadre, to the guiding principle”.  Further, the court observed that “the advertisements were issued one after the other, and more importantly, that this was the first selection and recruitment to a newly created cadre, the delay which occurred on account of administrative exigencies (and also the completion of procedure, such as verification of antecedents) the seniority of the promotes given on the basis of their dates of appointment, is justified by Rule 27 in this case”, and hence, dismissed the appeals.”

       9.   In Ram Janam Singh V. State of U.P. and Anr, it was iterated that the date of entry into a service is the safest rule to follow while determining the inter se seniority between one officer or the other or between one group of officers and the other recruited from the different sources.  It was observed that this is in consistent with the requirement of Articles 14 and 16 of the Constitution.  It was, however, viewed that if the circumstances so require, a group of persons can be treated as a class separate from the rest for any preferential or beneficial treatment while fixing their seniority, but, normally such classification should be triggered by statutory rule or rules framed under Article 309. 

       10. The Constitution Bench of Supreme Court in Direct Recruit Class Ii Engineering Officers’ Association V. State of Maharastra & Ors. Stated the legal position with regard to inter se seniority of direct recruits and promotes.  While doing so, inter alia, it was stated that once an incumbent is appointed to a post according to rules, his seniority has to be counted from the date of his appointment. 

       11. In the case of D.K. Mitra and Ors. V. Union of India and Ors the Supreme Court observed that for the purpose of determining seniority among promotes, the petitioners should be treated as having been appointed to permanent vacancies from the respective dates of their original appointment and the entire period of officiating service performed by them should be taken into account as if that service was of the same character as that performed by the substantive holders of permanent posts.”

       12. The Hon’ble Supreme Court in the case of Sudhir Kumar Atrey vs.Union of India held that

                 “We are also of the view that in the matter of adjudging seniority of the candidates selected in one and the same selection, placement in the order of merit can be adopted as a principle for determination of seniority but where the selections are held separately by different recruiting authorities, the principle of initial date of appointment/continuous officiation may be the valid principle to be considered for adjudging inter se seniority of the officers in the absence of any rule or guidelines in determining seniority to the contrary.”

5.              CRIMINAL PROCEDURE CODE, 1973 – Section 11, 12, 15, 16, 17, 19 and 35 – Whether the Additional Chief Metropolitan Magistrate can be said to be subordinate to the “Chief Metropolitan Magistrate” – Held, the expression “District magistrate and the “Chief Metropolitan Magistrate” as appearing in Section 14 of the SARFAESI Act shall deem to mean and include Additional District Magistrate and Additional Chief Metropolitan District Magistrate for the purposes of Section 14 of the SARFAESI Act.  M/s R.D. Jain and Co.  V. Capital First Ltd. & Ors. 2022 (II) OLR (SC) – 518. 

6.              CRIMINAL PROCEDURE CODE, 1973 – Section 176 (1-A) – Inquiry by Magistrate into cause of death – Purpose of inserting by amendment the provision [Section 176 (1-A)] was that unless such inquiry was made there would be no scope to determine that an incident, inter alia, of custodial death may be or is/was result of an offence – Held, Pendency of Magisterial inquiry cannot be defense of state against claim for compensation.  Rajendra Behera V. State of Odisha and others 2022 (II) OLR – 471.

7.              CRIMINAL PROCEDURE CODE, 1973 – Section 197 – Sanction – The complainant was assaulted and abused inside police Hazat but the court held that it might be excess of performance of duty but the acts cannot be said to be totally unconnected with the official duty or not to be in course of performance of official duty – Held, the police officer was entitled to protection under Section, 197 Cr.P.C.  Rabinarayan Nanda V. State of Orissa and another 2022 (II) OLR – 514. 

8.              CRIMINAL PROCEDURE CODE, 1973 – Section 202 and 205 – There could be no justification for not dispensing with the personal appearance of the accused-directors, when the company had entered appearance though an authorized officer – summoning an accused person cannot be resorted to as a matter of course and the order must show application of mind. 

9.              CRIMINAL PROCEDURE CODE, 1973 – Sections 397 and 104 – Revision against order taking cognizance of offences under Sections 406, 409 and 34 I.P.C – Contention that order of cognizance was taken even subsequent to complainant approaching the court to withdraw complaint prior to submission of charge sheet – Held, the matter has been settled between the parties since long – Revision allowed.  Biswa Prakash Mahapatra & Ors. V. State of Orissa & Anr. 2022 (II) OLR – 544. 

10.           CRIMINAL PROCEDURE CODE, 1973 – Section 439 – Cancellation of bail (Post arrest bail) – Appeal by NCB – Held, Not only are the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 to be kept in mind, the restrictions placed under clause (b) of sub-section (1) of Section 37 are also to be factored in.  (Para-11).  Narcotics Control Bureau V. Mohit Aggarwal 2022 (II) OLR (SC) – 465. 

11.           CRIMINAL PROCEDURE CODE, 1973 – Section 482 – Assailing order of cognizance – Contention that no sanction was issued prior to taking up of cognizance – In present case, the petitioner was at the P.S and can fairly be said that he was on duty when the incident happened – The victim who is alleged to have been misbehaved and manhandled by the petitioner had been called to the PS in connection with the dispute of the Math – Held, Sanction under Section 197 of Cr.P.C was necessary. (Paras – 10 and 12).  Rabinarayan Nanda V. State of Orissa and another 2022 (II) OLR – 514. 

12.           CRIMINAL PROCEDURE CODE, 1973 – Section 482 – Quashing of F.I.R – Offence under Section 306 of I.P.C – Offence under Section 306 of the IPC of abetment to commit suicide is a grave non-compoundable offence – of course, the inherent power of the High Court under Section 482 of the Cr.P.C is wide and can even be exercised to quash criminal proceedings relating to non compoundable offences – However, before exercising its power under Section 482 of the Cr.P.C., the High Court has to circumspect and have due regard to the nature and gravity of the offence – Crimes like murder, rape, burglary, dacoity and even abetment to suicide are neither private nor civil in nature – In no circumstances can prosecution be quashed on compromise, when the offense is serious and grave and falls within the ambit of crime against the society.  (Paras 37 and 38) Daxaben V. The State of Gujarat & Ors. 2022 (II) OLR (SC) – 441. 

13.           CRIMINAL TRIAL – Informant/complainant - -Position of – In criminal jurisprudence, the position of the complainant is only that of the informant – Once the F.I.R/Criminal complaint is lodged and a criminal case is started by the state, it becomes a matter between state and accused – In case of grave and serious non compoundable offences which impact society, the informant and /or complainant only has right of hearing – An informant has not right to withdraw complaint.  (Para -40)  Daxaben V. The State of Gujarat & Ors. 2022 (II) OLR (SC) – 441.   

14.           DUTY OF COURT – (presumption as to execution documents) – Evidentiary value – The ordinary presumption that a person understands the document to which he/she has affixed his/her name does not apply in the case where an executants pardanashin or even an old and physically unfit or disabled person of that class are under the cloack of protection – It is the duty of the court to assertion from evidence that the party executing them had been a free agent and duly informed of what he/she was about to do.  (Para – 11) Sarat @ Sarat Kumar Mohanty V. Smt. Champabati Pattnaik 2022 (II) OLR – 392. 

15.           NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 – Section 67 – Confessional statement – A confessional statement recorded under Section 67 of the NDPS Act has been held to be inadmissible in the trial of an offence under the NDPS Act – therefore, the admissions made by the respondent while in custody to the effect that he had illegally traded in narcotic drugs, will have to be kept aside.  (Para – 16 and 17)  Narcotics Control Bureau V. Mohit Aggarwal 2022 (II) OLR (SC) – 465. 

16.           NEGOTIABLE INSTRUMENTS ACT, 1881 – Sections 138 and 141 – There can be no doubt that in deciding a Criminal Revision Application under Section 482 of the Cr.P.C. for quashing a proceeding under Section 138 and 141 of the N.I. Act, the laudable object of prevention bouncing of cheques and sustaining the credibility of commercial transactions resulting in enactment of the said sections has to be borne in mine – The provisions of Sections 138 and 141 of the N.I. Act create a Statutory presumption of dishonesty on the part of the signatory of the cheque, and when the cheque is issue on behalf of a company, also those persons in charge of or responsible for the company or the business of the company.  (Para 41) Sunita Palita & Others V. M/s. Panchami Stone Quarry 2022 (II) OLR (SC) – 496.

17.           ORISSA FOREST ACT, 1972 – Section 21 – Notifications declaring forest reserved – The procedure which is required to be followed to declare the forest as reserved under Section 21 of Orissa Forest Act by issuing notification – The forest department cannot claim the same to be reserved forest unless it is notified under Section 21 of the Act declaring the same as reserved forest.  (Paras – 12, 13 and 16) Raj Kishor Deo V. State of Odisha & Ors. 2022 (II) OLR – 415. 

18.           ORISSA SCHEDULED AREA TRANSFER OF IMMOVABLE PROPERTY (BY SCHEDULED TRIBES) REGULATION 1956 – Regulation (3-a) (i) – Permission granted by the competent authority on 27.09.1997 – Initiation of review proceeding in the year 2004 is beyond the prescribed period of limitation and therefore the initiation of the proceeding suffers on account of delay. (Paras 5 and 6) D. Kumar Swamy & Anr. V. The Collector, Rayagada & Ors. 2022 (II) OLR – 495. 

19.           ODISHA SCHEDULED AREAS TRANSFER OF IMMOVABLE PROPERTY (BY SCHEDULED TRIBES) REGULATIONS, 1956 – Section – 3-A – Effect of – Incorporation of Section 3-A of the Regulation, 1956 in 1975 not a retrospective one and the petitioners father came into possession of property in disposal of a duly constituted proceeding initiated in 1959 – Such proceedings remains without the domen of the authorities under the Regulation, 1956 (Para-9) Smt. Basanta Kumari Das @ Dash & Ors. V. State of Odisha & Ors. 2022 (II) OLR – 533.

20.           PUBLIC INTEREST LITIGATION – Challenge as to the notification that nothing contained in the RTI Act shall apply to the General Administration (Vigilance) Department of the Govt. of Odisha and its organization – “Discussed the factual matrix of the case and the relevant provision under Section 24 (4) of the RTI Act, 2005 and as well as the cited decision it is held, the General Administration (Vigilance) Department of the Govt. of Orissa cannot, notwithstanding the impugned notification, refuse to divulge information pertaining to corruption and human rights violations, which information is expressly not protected from disclosure by virtue of the first proviso to Section 24 (4) of the RTI Act – also information that does not touch upon any of the sensitive and confidential activities undertaken by the vigilance Department, cannot be withheld.  (Para – 36) Subash Mohapatra & Ors. V. State of Odisha & Anr. 2022 (II) OLR – 374.

21.           SERVICE–Rule of seniority–The thrust of the rule is that seniority is determined on the basis of date of appointment – The legal footprint on the issue as left by the Supreme Court has firmly shaped the legal conduct at the executive domain on inter se seniority issue.  Ajaya Kumar Mohapatra V. State of Odisha & Ors. 2022 (II) OLR – 510. 

CLR

22.           B.  Code of Civil Procedure, 1908 – Order 6 Rule 17 – Amendment of plaint – Permissibility – Plaintiffs sought to amend plaint so as to declare all the mortgages/charges created on entire premises as void ab-initio – Mortgages were created not only with respect to shops/premises occupied by plaintiffs, but with respect entire premises – Plaintiffs being licencees were aware about charges/mortgages on entire premises and buildings including the sops – Now after a number of years, plaintiffs cannot be permitted to challenge mortgages/charges created on entire premises – Nature of suit would be changed by permitting plaintiffs to amend plaint – it would also result in misjoinder of causes of action – Order of High Court permitting plaintiffs to amend plaint, set aside.  Asian Hotels (North) Ltd V. Alok Kumar Lodha and Ors. 2022 (II) CLR (SC) – 511.    

       C.  Code of Civil Procedure, 1908 – Order 1 Rule 10 – Impleadment of Parties – Permissibility – Principle that plaintiff is dominus litus shall be applicable only in case where parties sought to be added as defendants  are necessary or proper parties – Banks and Financial Institutions sought to be added as defendants were not necessary or proper parties – Order of High Court permitting plaintiffs to implead Banks and Financial Institutions as party defendants, unsustainable.

23.           A.  Code of Civil Procedure, 1908 – Order 6 Rule 17 and Order 1 Rule 10 – Amendment of pleadings – If, by permitting plaintiffs to amend the plaint including a prayer clause nature of the suit is likely to be changed, in that case, the Court would not be justified in allowing the amendment – It would also result in misjoinder of causes of action – Appellant – defendant granted licenses for individual shops at the premises from 1983 onwards to various shopkeepers including respondent-plaintiff – On 29.05.2020, the appellant licensor served notices for revocation of licenses – Respective licensees instituted suits against appellant licensor seeking a decree of declaration that the license in favour of the plaintiff in respect of suit/premises is irrevocable and perpetual and the purported revocation of the license by the defendant is illegal, void and bad in the eyes of law – During pendency of the suit, the plaintiff filed application under Order 6 Rule 17, CPC seeking amendment of the plaint, by which the plaintiff proposed to amend the suit challenging various mortgages created by the defendant hotel, in favour of certain banks – Prayer clause is also sought to be amended seeking a decree of declaration against defendant that the mortgages including the mortgage deeds which have been executed in favour of the Banks is void and illegal to the extent it encumbers any right, title and interest of the plaintiff in the subject premises – Another application was also filed by the plaintiff under order 1 Rule 10, CPC, seeking to implead the Banks and the Financial Institutions as defendants – High Court allowed both the applications – Mortgages have been created in favour of different mortgage banks/financial institutions since 1982 onward which have been extended and/or rolled over, refinanced and replaced from time to time – Mortgages were created not only with respect to the shops/premises occupied by the plaintiffs, but with respect to the entire premises.  Asian Hotels (North) Ltd V. Alok Kumar Lodha and Ors. 2022 (II) CLR (SC) – 511. 

24.           Code of Civil Procedure, 1908 – Order XXI, Rule 97 to 102 – Execution of decrees and orders – Resistance or obstruction to possession of immovable property – Right of ‘any person’ other than the judgment debtor – It is only the ‘decree holder’ who is entitled to make an application in case where he is offered resistance or obstruction by ‘any person’.  Sriram Housing Finance and investment India Ltd. V. Omesh Mishra Memorial Charitable Trust 2022 (II) CLR (SC) – 547. 

25.           Code of Civil Procedure, 1908 – Order XXIII Rule 3 – Consent decree passed in the Lok Adalat – Setting aside of – Merely because the Trial Court, before whom the application filed under Order XXIII Rule 3, CPC was presented, referred the matter to the Lok Adalat, cannot be a ground to doubt the genuineness of the consent decree.  Hemantha Kumar V. R. Mahadevaiah & Ors. 2022 (II) CLR (SC) – 485.

26.           Constitution of India, 1950 – Art. 226 – Writ Jurisdiction – Auction Sale – Interim relief – Non-grant of interim relief pending appeal before DRAT challenged before High Court – High Court decided and disposed of writ petition as if considering final decision of DRAT – High Court gone beyond scope and ambit of proceedings before it – By passing said order, High Court made proceedings before DRAT infructuous – High Court exceeded its jurisdiction – Order of High Court granting opportunity to purchaser to deposit balance amount along with damages, set aside.  SRS Advertising & Marketing Pvt. Ltd. & Ors V. Mr. Kamal Garg & Anr 2022 (II) CLR (SC) – 605. 

27.           B.  Hindu Marriage Act, 1955 – Section 13 (1) (i-b) – Divorce – On grounds of desertion by wife – Non-filing of petition for restitution of conjugal rights – Merely because she stayed for one night in her matrimonial home at time of death of her mother – in – law, cannot be said to be resumption of cohabitation – Intention to resume cohabitation, not established – Animus deserendi on part of wife established – Husband is directed to pay Rs. 15,00,000/- to wife – Divorce granted.  Debananda Tamuli V. Smti Kakumoni Kataky 2022 (II) CLR (SC) – 601.

28.           B. Land Acquisition Act, 1984 – Section 23 – Compensation – Enhancement – There cannot be uniform market value for different lands while determining compensation for acquisition – Prices mentioned in Ready Reckoner for purpose of collection rates for entire area cannot be basis for determination of compensation – Order of High Court enhancing compensation by 800% on sole basis of Ready Reckoner rates of land, erroneous.  Bharat Sanchar Nigam Limited V. Nemichand Damodardas & Anr. 2022 (II) CLR (SC) – 538. 

29.           Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 – Section 22 (2), Sections 25 and 41 (1) – Prayer for delivery of possession/demonstration of chaka allotted to a land owner – After publication of notification under Section 41(1) the power shall be exercised by the concerned Tahasildar.  Nikunja Kishor Das and Others V. State of Odisha and Others 2022 (II) CLR – 451. 

30.           Orissa Estate Abolition Act, 1951 – Section 8-A/O.L.R. Act – Section 4(5) – Status of the case land was rent free recorded in the name of the deity as a raiyat in the ROR published in the year 1919 and the predecessor–in–interest of the petitioners was described as a ‘Chasi’ in respect of the land in the said ROR – In Debottar vesting case No. 136 of 1977 disposed of on 18.1.1984 the deity was declared as a raiyat by fixing rent in respect of the case land – The predecessor-in-interest of the petitioners never filed any objection in that case – neither the predecessor-in-interest of the petitioners nor the petitioners challenged the settlement of land and fixation of rent in the name of the deity – They also did not file any application under Section 4(5) of the O.L.R. Act to be declared as raiyats in respect of the case land – Hal settlement ROR was published on 9.9.93 recording the name of the deity under raiyati status – Revision under the O.S.S. Act filed by the petitioners challenging the recording of the name of the deity dismissed.  Narayan Behera and Others V. Commissioner, Land Records and Settlement, Odisha, Cuttack and Others 2022 (II) CLR – 478. 

31.           B. Specific Relief Act, 1963 – Section 16 (c) – Specific performance of agreement to sell – Readiness and willingness – Plaintiff paid insignificant amount of Rs. 10,001/- as advance when consideration was Rs. 15,10,000/- – Plaintiff deposited balance sale consideration in Court after seven years of alleged sale of property – Plaintiff’s balance-sheet showing that he did not have sufficient funds to discharge his part of contract – Making subsequent deposit of balance consideration after laps of seven years would not establish his readiness to perform his part of contract – Since acceptable evidence not placed on record to prove his readiness and willingness, plaintiff not entitled to relief of specific performance.  U.N. Krishnamurthy (Since Deceased) Thr. Lrs. V. A.M. Krishnamurthy 2022 (II) CLR (SC) – 497. 

32.           B. Specific Relief Act, 1963 – Section 21(5) – Claim for damages – Suit for specific performance of Agreement – Appellant did not plead any relief of damages or compensation when he sought for specific performance – Nor he claimed any relief for damages in appeal – Specific submission of appellant that no relief in nature of damages or compensation could be granted – Damages cannot be granted.  Universal Petro Chemicals Ltd. V. B.P. PLC and Others 2022 (II) CLR (SC) – 608. 

33.           Will – Mutation of land on the strength of the Will – Application for mutation and the appeal arising therefrom disallowed on the ground that no probate of the Will has been granted – Land covered under the Will situates in the District of Angul which was carved out of Dhenkanal – Held, probate is not necessary and order refusing mutation is set aside.  (Para 8) Ranjan Kumar Sahu V. Sub-Collector, Athamallik, Angul & Anr. 2022 (II) CLR – 463.