Monthly Archives: October 2012

Orders Passed Under Section 145(1) and 146(1) Crpc – Maintainability of Revision under Section 397

Interlocutory Order
Halsbury’s Laws of England defines the term interlocutory Order as under:
“An order which does not deal with the final rights of the parties, but either:
(1) is made before judgment and gives no final decision on the matter in dispute but is merely on a matter of procedure or
(2) is made after judgment and merely directs how the declarations of right already given in the final judgment are to be worked out s termed “interlocutory”. An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals.”
In Amar Nath and Others v. State of Haryana and others, AIR 1977 SC 2185, it was held as under:
“The term interlocutory order denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order.”
The word “interlocutory order” as defined in the Law Lexicon by P. Ramanatha Aiyar, 1997 Edition, is an order made pending the cause and before a final hearing is concluded on merits. Such an order is made to secure some end and purpose necessary and essential to the progress of the litigation and generally collateral to the issues framed by the pleadings and not connected with the final judgment. It has been termed as a purely interim or temporary nature of an order which does not include the important rights and liabilities of the parties.
Intermediate Order
The word intermediate order as defined in the Law Lexicon is an order granted before entry of judgment, made between the commencement of an action and the final pronouncement. The word ‘Intermedium’ means between or in the middle. It is something intermediate in position or an intervening action or performance before the final conclusion. That which is situated or occurring between two things is intermediate. It holds the middle place or degree between two extremes interposed in between.
Interlocutory Order and Intermediate Order – Distinction Between
The distinction between the two would be that the former does not bring about any consequence of moment and is an aid in the performance of the final act. It does not affect any existing rights finally or to the disadvantage of either extremes. An intermediate order can touch upon the rights of the parties or be an order of moment so as to affect any of the rival parties or be an order of moment so as to affect any of the rival parties by its operation. Such an order affecting the rights of a person or tending to militate against either of the parties even at the subordinate stage can be termed as an intermediate or an intermediary order.
Final Order
The term “final order” means a decision finally affecting the rights of the contending parties. It is an issue which goes to the foundation of a trial and can never be questioned if it has been allowed to stand. It would therefore be final. The test of such finality would depend upon the facts of a case indicating termination of proceedings and ultimately affecting the fate of the parties. A final order is one which leaves nothing more to be decided by its own force.
The word ‘Final’ connotes that which comes at the end. It marks the last stage of a process leaving nothing to be looked for or expected. It is something ultimate in nature. It puts an end to something or in other words, it brings to a close any strife or uncertainty. It is the conclusion of an event, that which comes last. It connotes the finishing of some act and completion of some beginning. It does not allow the inclusion of anything or something that might be possible thereafter. A decisive stroke that cannot be reversed or altered is final.
Maintainability of Revision
Thus it would depend on the facts and circumstances of each separate individual case where the revising authority will have to examine as to whether the Magistrate has proceeded to exercise his judicious discretion well within his jurisdiction or has travelled beyond the same, keeping in view the various shades of litigation in such matters where the Apex Court and the High Court has held that an intermediate order, which is not necessarily an interlocutory order, could be subjected to revision. An order not conclusive of the main dispute, but conclusive of the subordinate matters with which it deals is not a purely interlocutory order even though it may not finally adjudicate the main dispute between the parties. Therefore a revision would not be barred under sub-section (1) of Section 397 of the Code if the orders impugned before the revising authority fall within the tests indicated above. It was further held that orders under Section 145(1) and 146(1) of the Code are not in every circumstance, orders simplicitor, and therefore a revision would be maintainable depending upon the facts involved in each case. Munna Singh v. State of U.P. and others, (2012) 1 UPLBEC 1 (Full Bench).

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Filed under Criminal Law, Revision

Evidence of deaf and dumb person

Section 119 of the Indian Evidence Act, reads as under:
119. Dumb Witnesses. A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence.”
In a recent Judgment of the Hon’ble Supreme Court, viz., State of Rajasthan v. Darshan Singh, it was held as under:
“A deaf and dumb person is a competent witness. If in the opinion of the court, oath can be administered to him/her, it should be so done. Such a witness, if able to read and write, it is desirable to record his statement giving him questions in writing and seeking answers in writing. In case the witness is not able to read and write, his statement can be recorded in sign language with the aid of interpreter, if found necessary. In case the interpreter is provided, he should be a person of the same surrounding but should not have any interest in the case and he should be administered oath.
Language is much more than words. Like all other languages, communication by way of signs has some inherent limitations, since it may be difficult to comprehend what the user is attempting to covey. But a dumb person need not be prevented from being a credible and reliable witness merely due to his/her physical disability. Such a person though unable to speak may convey himself through writing if literate or through signs and gestures if he is unable to read and write.”

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Filed under Criminal Law, Evidence Act

Post Against Promotee Quota – Can only be filled by Promotion

In a recent Judgment of the Allahabad High Court in Sita Kumar v. State of U.P., while dealing with the issue of Promotion on the Post of Promotee Quota, it was held as under:
“That a candidate eligible for appointment against the promote quota would be appointed against the promotee quota subject to fulfilling all the eligibility qualifications for the said post and that the said post could not be filled up by a candidate on compassionate grounds by allocating the post of the promotee quota to a direct recruitment candidate.”

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Filed under Employment Law, Promotion

Divorce by Mutual Consent – Cooling off period

Section 13-B of the Hindu Marriage Act, 1955 states as under:
13-B. Divorce by mutual consent.—(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
In a recent judgment of the Supreme Court – Devinder Singh Narula v. Meenakshi Nangia, it was held as under:
Section 13-B itself provides for a cooling off period of six months on the first motion being moved, in the event the parties change their minds during the said period. Accordingly, after the initial motion and the presentation of the petition for mutual divorce, the parties are required to wait for a period of six months before the second motion can be moved and at that point of time, if the parties have made up their minds that they would be unable to live together, the court, after making such inquiry as it may consider fit, grant a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
It is no doubt true that the Legislature had in its wisdom stipulated a cooling off period of six months from the date of filing of a petition for mutual divorce till such divorce is actually granted, with the intention that it would save the institution of marriage. It is also true that the intention of the legislature cannot be faulted with, but there may be occasions when in order to do complete justice to the parties it becomes necessary for this Court to invoke its powers under Article 142 in an irreconcilable situation. In fact, in Kiran v. Sharad Dutt, (2000) 10 SCC 243, which was considered in Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415, after living separately for many years and 11 years after initiating the proceedings under Section 13 of the Hindu Marriage Act, the parties filed a joint application before the Court for leave to amend the divorce petition and to convert the same into a proceeding under Section 13-B of the Act. Treating the petition as one under Section 13-B of the Act, the Court by invoking its powers under Article 142 of the Constitution granted a decree of mutual divorce at the stage of the SLP itself. In different cases, in different situations, the Court has invoked its powers under Article 142 of the Constitution in order to do complete justice between the parties.

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Filed under Divorce, Family Law

Recovery of excess salary paid

In a recent judgment of the Supreme Court in Chandi Prasad Uniyal v. State of Uttarakhand, while dealing with the issue of recovery of excess salary paid to an employee and after considering various authorities it was held thus :
“The excess payment of public money which is often described as “taxpayers money” belongs neither to the officers who have effected overpayment nor to the recipients. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake or not. Possibly, effecting excess payment of money by the government officers may be due to various reasons like negligence, carelessness, collusion, favouritism, etc., because money in such situation does not belong to the payer or payee. Situations may also arise where both the payer and payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.

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Impleadment of necessary party – Principles of

Order I Rule 10 of the CPC reads as under:

10. Suit in name of wrong plaintiff.— (1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.

(2) Court may strike out or add parties.—The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

(4) Where defendant added, plaint to be amended.—Where a defendant is added, the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendant.

(5) Subject to the provisions of the Indian Limitation Act, 1877 (15 of 1877), Section 22, the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons.

Necessary Party and Proper Party

A necessary party is one without whom no order can be made effectively. A proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. The addition of parties is generally not a question of initial jurisdiction of the court but of a judicial discretion which has to be exercised in view of all the facts and circumstances of a particular case.

A necessary party is a person who ought to have joined as a party and in whose absence no effective decree could be passed at all by the court. If a necessary party is not impleaded, the suit itself is liable to be dismissed. A proper party is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff.

Principles governing disposal of an application for impleadment:

The broad principles are:

  1. The court can, at any stage of the proceedings, either on an application made by the parties or otherwise, direct impleadment of any person as party, who ought to have joined as plaintiff or defendant or whose presence before the court is necessary for effective and complete adjudication of the issues involved in the suit.
  2. A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court.
  3. A proper party is a person whose presence would enable the court to completely, effectively and properly adjudicate upon all matters and issues, though he may not be a person in favour of or against whom a decree is to be made.
  4. If a person is not found to be a proper or necessary party, the does not have the jurisdiction to order his impleadment against the wishes of the plaintiff.
  5. In a suit for specific performance, the court can order impleadment of a purchaser whose conduct is above board and who files application for being joined as party within time of his acquiring knowledge about the pending litigation. Vidur Impex and Traders Pvt. Ltd. V. Tosh Apartments Pvt. Ltd., (2012) 8 SCC 384.

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Filed under Civil Law, Impleadment of parties