Category Archives: Civil Law

Concept of – Human Error

The concept of human error or inadvertent error has been explained in brief by Hon’ble Supreme Court in Price Water, Coopers (P) Ltd. v. CIT (2012) 11 SCC 316, as under:— “The contents of the Tax Audit Report suggest that there is no question of the assessee concealing its income. There is also no question of the assessee furnishing any inaccurate particulars. It appears that all that has happened in the present case is that through a bona fide and inadvertent error, the assessee while submitting its return, failed to add the provision for gratuity to its total income. This can only be described as a human error which we are all prone to make. The calibre and expertise of the assessee has little or nothing to do with the inadvertent error. That the assessee should have been careful cannot be doubted, but the absence of due care, in a case such as the present, does not mean that the assessee is guilty of either furnishing inaccurate particulars or attempting to conceal its income.” Anand Kumar Tripathi v. State of U.P., Writ – A No. – 162 of 2020, decided on February 14, 2020

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Party Sought to be Impleaded – Must Have a Direct Interest in the Subject Matter of Litigation

It is trite that the question of addition of parties under Order I Rule 10(2) is not one of the initial jurisdiction of the Court but of a judicial discretion which has to be exercised in view of the facts and circumstances of a particular case. Under the provisions of Order I Rule 10(2), the Court is empowered to direct that a person be added as party to the suit, if his presence in court is necessary in order to enable the court to adjudicate all the questions involved in the suit effectively and completely. The real test to determine whether a party is a necessary party to the suit is, whether in the absence of the person sought to be impleaded as a party to the suit, the controversy raised in the suit cannot be effectively and completely adjudicated. It is also well recognised that the expression “to settle all questions” employed in sub-rule (2) of Rule 10 of Order I receives a liberal and wide interpretation so as to facilitate the adjudication of all the questions pertaining to the subject matter of the suit. The jurisdictional condition is that the party sought to be impleaded must have a direct interest in the subject matter of litigation in contra-distinction to a commercial interest. Obviating multiplicity of proceedings is also one of the objects of the said provision. Jayashree Chandrakant Thite v. Padmavati Mohanlal Parekh, Chamber Summons No. 1359 of 2000 in Suit No. 2231 of 1986, Decided on February 7, 2020.

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Children, Issue and Heirs

The expressions “children”, “issue” and “heirs” would ordinarily be not synonymous but sometimes they may carry the same meaning. All the aforementioned terms have to be given their appropriate meanings.

In P. Ramanatha Aiyar’s Advanced Law Lexicon at p. 2111, it is stated:

“There is doubtless a technical difference in the meaning of the two words ‘heirs’ and ‘children’, and yet in common speech they are often used as synonym. The technical distinction between the terms is not to be resorted to in the construction of a will, except in nicely balanced cases.

‘When the general term “heirs” is used in a will, it will be construed to mean “child” or “children”, if the context shows that such was the intent of the testator.’

Where the words ‘children’ and ‘heirs’ are used in the same instrument in speaking of the same persons, the word ‘heirs’ will be construed to mean ‘children’; such usage being treated as sufficient evidence of the intention to use the word ‘heirs’ in the sense of ‘children’.”

 Heirs may be lineal or collateral. When we say that the will was a carefully drafted document, evidently, the guarantor thereof was aware of the fact that as thence some of the sons having not been married, the question as to who would be their heirs was uncertain.

If they did not have any issue, the properties in terms of the law as then existing might have passed on to their brothers.

 Whether the expression “heirs” would, thus, mean legal heirs, the question specifically came up for consideration in N. Krishnammal v. R. Ekambaram, (1979) 3 SCC 273, wherein it was stated:

“It is well settled that legal terms such as ‘heirs’, used in a will must be construed in the legal sense, unless a contrary intention is clearly expressed by the testator.”

Referring to an earlier decision of the Hon’ble Supreme Court in Angurbala Mullick v. Debabrata Mullick, 1951 SCR 1125, it was  opined that the expression “heirs” cannot normally be limited to issues and it must mean all persons who are entitled to the property held and possessed by/or under the law of inheritance. In that case, the widow would not have been entitled to inherit the property of her husband as she was not an heir. However, she became an heir by reason of the provisions of the Hindu Succession Act.

The decision in N. Krishnammal v. R. Ekambaram, (1979) 3 SCC 273 is binding. The meaning of the expression “heir” in the context of the Hindu Succession Act has been considered therein. The expression “heir” would mean a legal heir. In construing a document, the Court cannot assign any other meaning. A document as is well known must be construed in its entirety.  When a document is not uncertain or does not contain an ambiguous expression it should be given its literal meaning. Only when the contents are not clear the question of taking recourse to the application of principles of construction of a document may have to be applied. It is also not a case where there exists any inconsistency between an earlier and later part of the document. What is necessary for a true, proper and effective construction of the will in question is to give effect to the intention of the propounder of the will. Bay Berry Apartments (P) Ltd. v. Shobha, (2006) 13 SCC 737.

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Suit on – Separate and Distinct Causes of Action

Dealing with Order II, Rule 2, CPC, Hon’ble Apex Court in Kewal Singh v. Lajwanti, AIR 1980 SC 161, held that this provision has no application to cases where the plaintiff has based his suit on separate and distinct causes of action and chooses to relinquish one or the other of them and that in such cases, it is always open to the plaintiff to file a fresh suit on the basis of a distinct cause of action. Lalit Kumar Upreti v. Chunni Lal Gujral, 2018 (4) AWC 3693.

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Blacklisting – Effect of

The Hon’ble Supreme Court in Raghunath Thakur v. State of Bihar, (1989) 1 SCC 229 has held as under:

        “Blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the Government for purposes of gains. The fact that a disability is created by the order of blacklisting indicates that the relevant authority is to have an objection satisfaction. Fundamentals of fair play require that the person concerned should be given an opportunity to represent his case before he is put on the blacklist.” Triveni Engineers v. Dakshinanchal Vidyut Vitran Nigam Ltd., 2020 (1) AWC 297.

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Damages – Arising out of Breach of Contract

Section 73 of the Indian Contract Act makes it clear that damages arising out of a breach of contract is treated separately from damages resulting from obligations resembling those created by contract. When a contract has been broken, damages are recoverable under Paragraph 1 of Section 73 of the Indian Contract Act. When, however, a claim for damages arises from obligations resembling those created by contract, this would be covered by Paragraph 3 of Section 73 of the Indian Contract Act. Mahanagar Telephone Nigam Ltd. v. Tata Communications Ltd., (2019) 5 SCC 341.

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Case Not Specifically Pleaded – Non-Consideration of

In Bachhaj Nahar v. Nilima Mandal, AIR 2009 SC 1103 it was held as under:

        “It is thus clear that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contain the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise. The principles laid down in the case of Bhagwati Prasad, AIR 1966 SC 735 and Ram Sarup Gupta, (1987) 2 SCC 555  and several other decisions of this Court following the same cannot be construed as diluting the well-settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo motu. Nathu Ram v. Thakur Ramjanki Virajman Mandir, 2018 (127) ALR 495.

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Defect of Jurisdiction

A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of the parties. In the case of Sushil Kumar Mehta v. Gobind Ram Bohra, (1990) 1 SCC 193, the Hon’ble Supreme Court followed the law laid down in its earlier decision in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 and observed as under:

        “It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was coram non judice, and that its judgment and decree would be nullity.”         It has been laid down that it is a well established principle that a decree passed by a Court without jurisdiction is a nullity and the plea can be setup whenever and wherever the decree is sought to be enforced or relied upon and even at the stage of execution or in collateral proceedings. Saurabh Gupta v. Union of India, 2018 (127) ALR 388.

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In case of More than One Cause of Action – Order 2 Rule 2 CPC Will Not Apply

        It is undoubtedly true that the law does not compel a litigant to combine one or more cause of action is a suit. It is open to a plaintiff, if he so wishes, however to combine more than one cause of action against same parties in one suit. However, it is undoubtedly true that the embargo in Order 2 Rule 2 CPC will arise only if the claim, which is omitted or relinquished and the reliefs which are omitted and not claimed, arise from one cause of action. If there is more than one cause of action, Order 2 Rule 2 CPC will not apply. It is undoubtedly also true that Order 2 Rule 2 CPC manifests a technical rule as it has the effect of posing an obstacle in the path of a litigant ventilating his grievance in the Courts. But there is an equally important principle that no person shall be vexed twice on the same cause of action. Pramod Kumar v. Zalak Singh, (2019) 6 SCC 621.

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Suit for – Declaration of Title and Possession

Observing that in a suit for declaration of title, the respondent-plaintiffs are to succeed only on the strength of their own title irrespective of whether the appellants-defendants have proved their case or not, in Union of India v. Vasavi Coop. Housing Society Ltd., (2014) 2 SCC 269, it was held as under: “It is trite law that, in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff.” Jagdish Prasad Patel v. Shivnath,  (2019) 6 SCC 82.

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