Monthly Archives: April 2017

Period of Limitation – Founded on the Principle of Public Policy

In Popat and Kotecha Property v. State Bank of India Staff Association, (2005) 7 SCC 510, it was held as under:
“The period of limitation is founded on public policy, it’s aim being to secure the quiet of the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. The statute, i.e. the Limitation Act is founded on the most salutary principle of general and public policy and incorporates a principle of great benefit to the community. It has, with great propriety, been termed a statute of repose, peace and justice. The statute discourages litigation by burying in one common receptacle all the accumulations of past times which are unexplained and have not from lapse of time become inexplicable. It has been said by John Voet, with singular felicity, that controversies are limited to a fixed period of time, lest they should be immortal while men are mortal.
Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So, a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae Ut Sit Finis Litium (it is for the general welfare that a period be put to litigation). The idea is that every legal remedy must be kept alive for legislatively fixed period of time.” M/s H.K. Consumer Cooperative Society Ltd. v. State of U.P., 2017 (120) ALR 855.

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Term Institution – Meaning of

The term “Institution” had been considered by House of Lords in Mayor and C. of Manchester v. Mc-Adam (Surveyor of Taxes), 1896 AC 500. A distinction was sought to be drawn up between the “Institution” and the “Property of the Institution”. It was observed as under:
“It is a word employed to express several different ideas. It is sometimes used in a sense in which the “institution” cannot be said to consist of any persons, or body of persons, who could, strictly speaking, own property. The essential idea conveyed by it in connection with such adjectives as “literary” and “scientific” is often no more than a system, scheme or arrangement, by which literature or science is promoted without reference to the persons with whom the management may rest, or in whom the property appropriated for these purposes may be vested, save in so far as these may be regarded as a part of such system, scheme or arrangement. That is certainly a well recognized meaning of the word.
In Imperial Dictionary it is defined as follows:
“A system, plan or society, established either by law, or by the authority of individuals, for promoting any object, public or social. An illustration of this use is to be found in the Libraries Act itself. When the libraries which the authorities referred to in that Act may provide are termed “Institution” the term conveys the idea of buildings stored with books, with access to them by the public for the purpose of reading, together with the arrangements made for their use.
In Kamaraju Venkta Krishna Rao v. Sub-Collector, Ongole, AIR 1969 SC 563, it was observed:
“According to the dictionary meaning, the term “Institution” means “a body or organization of an association brought into being for the purpose of achieving some object.” Oxford dictionary defines an “Institution” as “an establishment, organization or association, instituted for the promotion of some object especially one of public or general utility, religious, charitable, educational etc.” Church of North India Trust Association v. Union of India, 2017 (135) RD 36.

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Desertion vis-à-vis Wilful Separation

The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately pending the presentation of the petition where the offence appears as a cross-charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence.
The quality of permanence is one of the essential elements which differentiates desertion from willful separation. If a spouse abandons the other spouse in a state of temporary passion, for example anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) the absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. Mohan Singh Mawri v. Haripriya, 2017 (121) ALR 533.

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Termination Order – Superseded by a less severe punishment

When the termination order is superseded by a less severe punishment, the said punishment should come into effect from the date of original order of termination. As held by the Hon’ble Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and others, (2013) 10 SCC 324, ‘reinstatement’ would mean putting the workman back to the stage when he was terminated. On such reinstatement, the punishment of removal gets substituted by the punishment of withholding of three annual increments for three years with cumulative effect.
As per shorter Oxford English Dictionary, Vol. 2, 3rd Edition, the word reinstate means to reinstall or re-establish (a person or thing in a place, station, condition, etc.); to restore to its proper or original state; to reinstate afresh and the word “reinstatement” means the action of reinstating; re-establishment. As per Law Lexicon, 2nd Edition, the word “reinstate” means to reinstall; to re-establish; to place again in a former state, condition or office; to restore to a state or position from which the object or person had been removed and the word “reinstatement” means establishing in a former condition, position or authority (as) reinstatement of a deposed prince. As per Merriam-Webster Dictionary, the word “reinstate” means to place again (as in possession or in a former position), to restore to a previous effective state.
As per Black’s Law Dictionary, 6th Edition, “reinstatement” means: “The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer”. B.S. Raju v. A.P.S.R.T.C., 2017 (152) FLR 832.

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Filed under Employment Law, Termination Order

Custody of Child – Welfare Priciple

The Hon’ble Apex Court in Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, stated in detail the law relating to custody in England and America and pointed that even in those jurisdictions, welfare of the minor child is the first and paramount consideration and in order to determine child custody, the jurisdiction exercised by the court rests on its own inherent equality powers where the court acts as “parens patriae”.
The word welfare used in Section 13 of the Hindu Minority and Guardianship Act, 1956 has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases.
Second justification behind the “welfare” principle is the public interest that stand served with the optimal growth of the children. It is well recognized that children are the supreme asset of the nation. Rightful place of the child in the sizeable fabric has been recognized in many international covenants, which are adopted in this country as well. Child – centric human rights jurisprudence that has been evolved over a period of time is founded on the principle that public good demands proper growth of the child, who are the future of the nation. Vivek Singh v. Romani Singh, (2017) 3 SCC 231.

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Enquiry – Reasonable Practicability of Holding

Words “reasonably practicable” does not mean “impracticable”. Practicable means “capable of being put into practice, carried out in action, effected, accomplished, or done, feasible”. Whether it was practicable to hold enquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b) of Article 311(2), proviso. It should be looked into point of view, by an ordinary concerned, as he would have thought or opined and take a reasonable view of prevailing situations. The reasonable practicability of holding an enquiry is a matter of assessment to be made by the disciplinary authority who is competent to do so at present and available on the spot knowing each and every aspect of the facts and circumstances necessary for knowing whether an enquiry is reasonably practicable or not. A disciplinary authority however is not expected to dispense with a disciplinary enquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an enquiry since the case of Department is weak or must fail if conducted. The statutory provisions also require the disciplinary authority to record its reasons for arriving at the satisfaction that the enquiry is not reasonably practicable. Ram Gopal v. Union of India, 2017 (152) FLR 822.

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Widow Remains Legal Representative Even After Remarriage

Widow even after remarriage continues to be the legal representative of her husband as there is no provision under the Hindu Succession Act or any other law laying down that after remarriage she does not continue to be the legal representative. The right of succession accrues immediately on death of her husband and in the absence of any provision, she cannot be divested from the property vested on her due to remarriage.
Hon’ble Apex Court in the case of Manjuri Bera v. Oriental Insurance Co. Ltd., AIR 2007 SC 1474, while considering the question as to whether a married daughter could maintain a claim petition in terms of Section 166 of the Motor Vehicles Act and whether she would be entitled to any compensation as she was dependent upon the deceased, considered the provisions of Sections 166 and 168 of the Motor Vehicles Act and Section 2(11) of the Code of Civil Procedure and relying upon the earlier observations of the Court in Custodian of Branches of BANCO National Ultramarion v. Nalini Bai Naique, (1989) 2 SCR 810, observed that the definition contained in Section 2(11) of the Code of Civil Procedure in inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression ‘legal representative’. As observed in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai, (1987) 3 SCR 404, a legal representative is one who suffers on account of death of a person due to motor accident and need not necessarily be a wife, husband parent and child.
Delhi High Court in Ram Kishan v. Meena Kumari, 2011 ACJ 1211, has held that remarriage will not deprive a person from claiming compensation for the death of her/his spouse. United India Insurance Co. Ltd. v. Smt. Baby, 2017 (2) AWC 1181.

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