CaseLaws

Section 21(5) 2nd proviso – “..the word `shall’ be read down to read as `may’,” Bombay High Court held that 2nd proviso to Section 21(5) of the National Investigation Agency Act is directory. It disagreed with the view of Kerala and Calcutta High Courts that the proviso is mandatory. It concurred with the view of Delhi, Jammu & Kashmir and Ladakh and Chhattisgarh High Courts that it is directory. This means that an application seeking to condone delay beyond 90 days in filing an appeal against the judgment, sentence, order, not being an interlocutory order, passed by a Special Court is maintainable, on sufficient cause being shown – [Faizal Hasamali Mirza Kasib vs State of Maharashtra – 2023:BHC-AS:27039-DB]

Merely because the officers of the State Government, do not have to pay for the litigation from their own pocket, they cannot be permitted to file such frivolous petitions and harass the landowners, who have already lost their valuable land – [Special Land Acquisition Officer vs Vithal Rao – SLP(Diary) 30326/2023]

Article 54 of Part II of the Schedule to the Limitation Act, 1963 – Limitation period for filing a suit for specific performance as three years from the date fixed for performance, and in alternative when no date is fixed, three years from the date when the plaintiff has notice that performance has been refused – The court will have to see whether any time was fixed for performance of the agreement to sell and if so fixed, whether the suit was filed beyond the prescribed period, unless a case for extension of time or performance was pleaded or established. However, when no time is fixed for performance, the court will have to determine the date on which the plaintiff had notice of refusal on part of the defendant to perform the contract – [ A Valliammai vs KP Murali 2023 INSC 823 ]

Workmen Compensation Act, 1923 ; Section 30- – An appeal from an order of Commissioner can be entertained only if there exists a substantial question of law to be considered – Workmen’s Compensation Commissioner is the last authority on facts – The other ground making the order under challenge, amenable to interference when the scope of jurisdiction is circumscribed by it being exercised only in cases of “substantial question of law”, is perversity in the findings – Act is a social welfare legislation and, therefore, it must be given a beneficial construction – Matters thereunder are to be adjudicated with due process of law and also with a keen awareness of the scope and intent of the Act – [Fulmati Dhramdev Yadav vs New India Assurance Co Ltd – 2023 INSC 790]

Lien – ‘lien’ of a government servant only ceases to exist when he/she is appointed on another post ‘substantively’/confirmed or absorbed permanently. Otherwise, his/her lien would continue on the previous post – [L R Patil vs Gulbarga University 2023 INSC 796] Disciplinary Proceedings – Judicial Review – Power of judicial review for the Courts in disciplinary action is circumscribed. The Court can only correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and the power exercised is not akin to adjudication of the case on merits as an appellate authority. – [Punjab National Bank vs M L Kalra (D)] Termination of Employee – [Jagpal Singh vs State of UP – 2023 INSC 777.]

A murder case of the year 2005. Makkella Nagaiah and others were convicted by the Trial Court in 2009. The High Court dismissed their appeals in 2014. In 2022, the Supreme Court dismissed their SLPs. After all this, one of the accused approached the Apex Court raising Juvenility plea. He has already undergone more than 12 years of imprisonment. The question of juvenility can be raised before any Court and at any stage, the court noted. It found that this accused was 16 years 7 months old as on the date of the crime. Thus he was a juvenile in conflict with the law on the date of commission of the offence. Thus, the Court ordered his release. [Makkella Nagaiah vs State of Andhra Pradesh 2023 INSC 800]

Trademark & Passing Off Action –The volume of sale and the extent of advertisement made of the product in question will be a relevant consideration for deciding whether the appellant had acquired a reputation or goodwill. – The passing off action which is premised on the rights of the prime user generating goodwill, shall remain unaffected by any registration provided in the Act. – If goodwill or reputation in a particular jurisdiction is not established by the plaintiff, no other issue really would need any further examination to determine the extent of the plaintiff’s right in the action of passing ­off. –For establishing goodwill of the product, it was necessary to prove not only the figures of sale of the product but also the expenditure incurred on promotion and advertisement of the product. –While deciding an application for a temporary injunction in a suit for passing­off action, in a given case, the statements of accounts signed by the Chartered Accountant of the plaintiff indicating the expenses incurred on advertisement and promotion and figures of sales may constitute a material which can be considered for examining whether a prima facie case was made out by the appellant­plaintiff. However, at the time of the final hearing of the suit, the figures must be proved in a manner known to law – [Brihan Karan Sugar Syndicate Private Limited vs Yashwantrao Mohite Krushna Sahakari Sakhar Karkhana – 2023 INSC 831] Copyright Infringement – Acquiescence is a defence available in action for the infringement of copyright- If the acquiescence in infringement amounts to consent, it will be a complete defence. Acquiescence is a course of conduct inconsistent with the claim for exclusive rights and it applies to positive acts and not merely silence or inaction such as is involved in laches. Mere negligence is not sufficient – [Brihan Karan Sugar Syndicate Private Limited vs Yashwantrao Mohite Krushna Sahakari Sakhar Karkhana – 2023 INSC 831]

Section 19 Family Courts Act – Section 28 HMA – What is the period of limitation for filing an appeal against a decree or order passed by a Family Court under the Hindu Marriage Act, 1955 ? Delhi High Court noticed that there is an inconsistency between Section 28 of HMA which prescribes a period of 90 days for filing an appeal and Section 19 of the Family Courts Act which prescribes a period of 30 days for filing an appeal. The court held that the Family Courts Act will prevail and therefore the the period of limitation for filing an appeal against a judgment or order of the Family Court is thirty days – [Pallavi Mohan vs Raghu Menon 2023 DHC 6586] Section 24 HMA – The wife is highly qualified and has an earning capacity, but in fact she has been earning, though has not been inclined to truthfully disclose her true income. Such a person cannot be held entitled to maintenance – [Niharika Ghosh Niharika Kundu vs Shankar Ghosh – 2023 DHC 6553] Section 7A HMA (applicable in Tamil Nadu) – Section 7A required the intending spouses to declare and express to each other their willingness to take each other as spouses and symbolically garlanding each other and tying a “Thali”. In S. Balakrishnan Pandiyan v Inspector of Police, 2014 (7) MadLJ 651, Madras High Court interpreted the procedure of declaration by the intending spouses “in the presence of relatives, friends or other persons”. Now, the Supreme Court held that this view is erroneous as it is premised on the assumption that every marriage requires a public solemnization or declaration. The court observed: Such a view is simplistic because often due to parental or pressure among kinship groups, or caste/community institutions, couples intending to enter into matrimony, may not be able to, for the reasons of such opposition- hold or give such a public declaration. Doing so would imperil their lives or could in the very least likely result in danger to their bodily integrity or at worst, a forceable or coerced separation of one from the other. It is not hard to visualize other pressures being brought to bear upon two individuals, who are otherwise adults and have exercised their freewill. To superimpose the condition of a public declaration, which is absent in section 7A , in the opinion of this Court, it is not only narrowing the otherwise wide import of the statue but also would be violative of the rights under Article 21 of the Constitution of India – [Ilavarasan vs Superintendent of Police 2023 INSC 813.] Section 13 HMA- An element of subjectivity has to be applied albeit, what constitutes cruelty is objective. Therefore, what is cruelty for a woman in a given case may not be cruelty for a man, and a relatively more elastic and broad approach is required when we examine a case in which a wife seeks divorce. – [Roopa Soni vs Kamalnarayan Soni 2023 INSC 814] Section 13 HMA – Historically, the law of divorce was predominantly built on a conservative canvas based on the fault theory. Preservation of marital sanctity from a societal perspective was considered a prevailing factor. With the adoption of a libertarian attitude, the grounds for separation or dissolution of marriage have been construed with latitudinarianism – The court must also keep in mind that the home which is meant to be a happy and loveable place to live, becomes a source of misery and agony where the partners fight. When there are children they become direct victims of the said fights, though they may practically have no role in the breakdown of marriage. They suffer irreparable harm especially when the couple at loggerheads, remain unmindful and unconcerned about the psychological and mental impact it has on her/him. – [Roopa Soni vs Kamalnarayan Soni 2023 INSC 814] Hindu Marriage Act ; Section 16 – Hindu Succession Act ; Section 6 – The very concept of a coparcener postulates the acquisition of an interest by birth. If a person born from a void or voidable marriage to whom legitimacy is conferred by sub-sections (1) or (2) of Section 16 were to have an interest by birth in a Hindu Undivided Family governed by Mitakshara law, this would certainly affect the rights of others apart from the parents of the child. Holding that the consequence of legitimacy under sub-sections (1) or (2) of Section 16 is to place such an individual on an equal footing as a coparcener in the coparcenary would be contrary to the plain intendment of sub-section (3) of Section 16 of the HMA 1955 which recognises rights to or in the property only of the parents. In fact, the use of language in the negative by Section 16(3) places the position beyond the pale of doubt. We would therefore have to hold that when an individual falls within the protective ambit of sub-section (1) or sub-section (2) of Section 16, they would be entitled to rights in or to the absolute property of the parents and no other person. [Revanasiddappa v. Mallikarjun 2023 INSC 783] Section 19 Family Courts Act – Section 28 HMA – What is the period of limitation for filing an appeal against a decree or order passed by a Family Court under the Hindu Marriage Act, 1955 ? Delhi High Court noticed that there is an inconsistency between Section 28 of HMA which prescribes a period of 90 days for filing an appeal and Section 19 of the Family Courts Act which prescribes a period of 30 days for filing an appeal. The court held that the Family Courts Act will prevail and therefore the the period of limitation for filing an appeal against a judgment or order of the Family Court is thirty days – [Pallavi Mohan vs Raghu Menon 2023 DHC 6586] Section 24 HMA – The wife is highly qualified and has an earning capacity, but in fact she has been earning, though has not been inclined to truthfully disclose her true income. Such a person cannot be held entitled to maintenance – [Niharika Ghosh Niharika Kundu vs Shankar Ghosh – 2023 DHC 6553] Section 7A HMA (applicable in Tamil Nadu) – Section 7A required the intending spouses to declare and express to each other their willingness to take each other as spouses and symbolically garlanding each other and tying a “Thali”. In S. Balakrishnan Pandiyan v Inspector of Police, 2014 (7) MadLJ 651, Madras High Court interpreted the procedure of declaration by the intending spouses “in the presence of relatives, friends or other persons”. Now, the Supreme Court held that this view is erroneous as it is premised on the assumption that every marriage requires a public solemnization or declaration. The court observed: Such a view is simplistic because often due to parental or pressure among kinship groups, or caste/community institutions, couples intending to enter into matrimony, may not be able to, for the reasons of such opposition- hold or give such a public declaration. Doing so would imperil their lives or could in the very least likely result in danger to their bodily integrity or at worst, a forceable or coerced separation of one from the other. It is not hard to visualize other pressures being brought to bear upon two individuals, who are otherwise adults and have exercised their freewill. To superimpose the condition of a public declaration, which is absent in section 7A , in the opinion of this Court, it is not only narrowing the otherwise wide import of the statue but also would be violative of the rights under Article 21 of the Constitution of India – [Ilavarasan vs Superintendent of Police 2023 INSC 813.] Section 13 HMA- An element of subjectivity has to be applied albeit, what constitutes cruelty is objective. Therefore, what is cruelty for a woman in a given case may not be cruelty for a man, and a relatively more elastic and broad approach is required when we examine a case in which a wife seeks divorce. – [Roopa Soni vs Kamalnarayan Soni 2023 INSC 814] Section 13 HMA – Historically, the law of divorce was predominantly built on a conservative canvas based on the fault theory. Preservation of marital sanctity from a societal perspective was considered a prevailing factor. With the adoption of a libertarian attitude, the grounds for separation or dissolution of marriage have been construed with latitudinarianism – The court must also keep in mind that the home which is meant to be a happy and loveable place to live, becomes a source of misery and agony where the partners fight. When there are children they become direct victims of the said fights, though they may practically have no role in the breakdown of marriage. They suffer irreparable harm especially when the couple at loggerheads, remain unmindful and unconcerned about the psychological and mental impact it has on her/him. – [Roopa Soni vs Kamalnarayan Soni 2023 INSC 814] Hindu Marriage Act ; Section 16 – Hindu Succession Act ; Section 6 – The very concept of a coparcener postulates the acquisition of an interest by birth. If a person born from a void or voidable marriage to whom legitimacy is conferred by sub-sections (1) or (2) of Section 16 were to have an interest by birth in a Hindu Undivided Family governed by Mitakshara law, this would certainly affect the rights of others apart from the parents of the child. Holding that the consequence of legitimacy under sub-sections (1) or (2) of Section 16 is to place such an individual on an equal footing as a coparcener in the coparcenary would be contrary to the plain intendment of sub-section (3) of Section 16 of the HMA 1955 which recognises rights to or in the property only of the parents. In fact, the use of language in the negative by Section 16(3) places the position beyond the pale of doubt. We would therefore have to hold that when an individual falls within the protective ambit of sub-section (1) or sub-section (2) of Section 16, they would be entitled to rights in or to the absolute property of the parents and no other person. [Revanasiddappa v. Mallikarjun 2023 INSC 783]

An assurance in the form of an undertaking given by a counsel / advocate on behalf of his client to the court; the willful breach or disobedience of the same would amount to “civil contempt” as defined under Section 2(b) of the Contempt of Court Act 1971 -An undertaking given to a party to the lis by way of an agreement of settlement or otherwise would not attract the provisions of the Act 1971 –The apology tendered should not be accepted as a matter of course and the court is not bound to accept the same. The apology may be unconditional, unqualified and bona fide, still if the conduct is serious, which has caused damage to the dignity of the institution, same should not be accepted. There ought not to be a tendency by courts, to show compassion when disobedience of an undertaking or an order is with impunity and with total consciousness – Although the transfer of the suit property pendente lite may not be termed as void ab initio yet when the court is looking into such transfers in contempt proceedings the court can definitely declare such transactions to be void in order to maintain the majesty of law. Apart from punishing the contemnor, for his contumacious conduct, the majesty of law may demand that appropriate directions be issued by the court so that any advantage secured as a result of such contumacious conduct is completely nullified. This may include issue of directions either for reversal of the transactions by declaring such transactions to be void or passing appropriate directions to the concerned authorities to ensure that the contumacious conduct on the part of the contemnor does not continue to enure to the advantage of the contemnor or any one claiming under him.– The beneficiaries of any contumacious transaction have no right or locus to be heard in the contempt proceedings on the ground that they are bona fide purchasers of the property for value without notice and therefore, are necessary parties. Contempt is between the court and the contemnor and no third party can involve itself into the same – [Balwantbhai Somabhai Bhandari Vs Hiralal Somabhai Contractor – 2023 INSC 805]

Practice and Procedure – Although the opposite party had not filed its version and may not have participated in the proceedings before the NCDRC, nevertheless, had the right to address final arguments before the NCDRC- [ARN Infrastructure India Limited vs Hara Prasad Ghosh CA (Diary) 31182 of 2023] Section 2(1)(d) of the Consumer Protection Act, 1986 – Interpretation of the word and expression “Commercial Purpose” – When there is an assertion in the complaint filed before the Consumer Court or Commission that such goods are purchased for earning livelihood, such complaint cannot be nipped at the bud and dismissed. Evidence tendered by parties will have to be evaluated on the basis of pleadings and thereafter conclusion be arrived at. Primarily it has to be seen as to whether the averments made in the complaint would suffice to examine the same on merits and in the event of answer being in the affirmative, it ought to proceed further. On the contrary, if the answer is the negative, such complaint can be dismissed at the threshold. Thus, it would depend on facts and circumstances of each case. There cannot be any defined formula with mathematical precision to examine the claims for non-suiting the complainant on account of such complaint not falling within the definition of the expression ‘consumer’ as defined under Section 2(1)(d) – [Rohit Chaudhary vs Vipul Ltd 2023 INSC 807]