The establishment of a competing business which may have an adverse impact on his profitability cannot give rise to a legal wrong. Such actions are clearly barred on the principle of damnum sine injuria which essentially holds that the law does not recognize any remedy unless it is established that the person had suffered a legal wrong or to put it differently a wrong which is recognized or is recognizable in law. In the case of Jasbhai Motibhai Desai v. Roshan Kumar, (1976) 1 SCC 671 it was held as under: “Thus, in substance, the appellant’s stand is that the setting up of a cinema house in the town will adversely affect his, monopolistic commercial interest, causing pecuniary harm and loss of business from competition. Such harm or loss is not wrongful in the eye of law, because it does not result in injury to a legal right or a legally protected, interest, the business competition causing it being a lawful activity. The reason why the law suffers a person knowingly to inflict harm of this description on another, without holding him accountable for it, is that such harm done to an individual is a gain to the society at large. Amir Kumar Mishra v. Union of India, 2021 (145) ALR 1.
Category Archives: Civil Law
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
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.
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.
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.
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.
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.