Mahant Onkar Das, Guru Mahant Shalikram Das
Vs.
Sunita, Late Raju Sindhi
Second Appeal No. 225 of 1999, 28-02-2008
Code of Civil Procedure, 1908, Order 8 Rules 3 and 5 – Denial to be specific – Example of - Landlord alleged in the eviction petition that, he is the owner of the suit property – Tenant’s only reply was that, he have no knowledge about whether the plaintiff is the owner of suit property – At another place, the defendants denied the status of Landlord, to deny rent and eviction – Held that, while replying to ownership of the property, defendants had admitted the ownership, due to absence of specific denial – Landlord’s right to obtain eviction is upheld.
Held: Apart from this in a very specific manner it has been pleaded by the plaintiff in para 1 - a of the plaint that he is the owner of the suit property. The defendants in their written statement in para 1 - a have pleaded whether plaintiff is owner of the suit property, is not in their knowledge and hence denied. To me, this amounts to admission as envisaged under order viii rule 3 and 5 cpc. In this context i may profitably place reliance on the decision of supreme court jahuri sah v. D. P. Jhunjhunwala air 1967 sc 109 and division bench decision of this court dhanbai v. State of m. P. And others 1978 jlj 879. Thus the defendants are also admitting the ownership of plaintiff, and if that is the position, it cannot be said that plaintiff who is the owner of suit property is not the landlord of defendants. For all practical purposes it is hereby held that the defendants are the tenants of plaintiff. (Para 15).
====== =========
Pre-suit Notice to contain all details, including about documents, 2012 Delhi
2012 Legal Eagle Delhi HC page .. = 189 (2012) DELHI LAW TIMES 458
Asian Steels versus Shree Bihari Forgings (P) Ltd.
Co. Pet. 67/2010 and CAS 270-271/2010 and CA 208 of 2011 Decided on 23.04.2012
Pleading – Pre-suit Notice – The parties to refer documents from which the parties are getting Rights and Liabilities – Any document which is not referred to in the Notices, can be presumed as forged document for the litigation – On the facts of the case, without deciding Merits, the parties were given right to file Civil Suits – Section 433(e) of Companies Act, 1956.
Held: In the opinion of this Court if the petitioner was in possession of the aforesaid document, normal commercial prudence would require that it would refer to the same in contemporaneous document and in particular in the statutory winding up notice. However, neither in the contemporaneous letter dated 22nd July, 2007 nor in the statutory winding up notice the petitioner has relied upon the alleged confirmation of accounts statement dated 1st April, 2007. Consequently, at this stage it cannot be said that the defense set up by the respondent is a sham or moonshine. (Para 6).
(Author’s note: How much of a document to be referred, whether to write only date, document file number, quoting contents or giving true copy of entire document – it is the duty of the Advocate who is doing that work and no guideline can be given.)
====== =======
TO QUOTE COMPLETE JUDGMENT ABOUT PVT DEFENCE RIGHT.
2008 Legal Eagle Madhya Pradesh page …
Criminal Appeal No. 762 of 1993, 03-01-2008
Dulichand Vs. State of Madhya Pradesh
Indian Penal Code, 1860, Section 97 – Private Defence, right of – Appellants in danger cannot use golden scales to determine whether to use the right of pvt defence – And how much force to be used – There had been quarrel about Collection of donations for a celebration – Appellants had to use right of pvt defence to protect themselves – Conviction by Trial Court is set aside – Appeal succeeds and allowed.
Held: On the foregoing discussion, it can be said that appellants were entitled to right of private defence of the body and they have rightly exercised that right, therefore, they have not committed any offence hence entitled for acquittal. Consequently, the appeal succeeds and is allowed. The judgment of conviction and sentence passed by the trial court on 27/7/1993 is hereby set aside. The appellants are acquitted from the offence under sections 307, 307/34, 323 and 323/34. The appellants are on bail. Their bail bonds are cancelled. They be set at liberty. Fine amount, if paid, be refunded to them as per law. (Paras 42 and 43).
===== =====
Unless all the documents are filed, the defence will not be relied.
2009 Legal Eagle MP page …
Gorlibai Vs. Kailash
m .a .no. 1677 of 200, 17-06-2009
Motor Vehicles Act, 1988, Section 149(2)(a) – Insurer's right to contest - Breach of conditions of Policy – Defence that, Private vehicle was used as Commercial – Trial Court exonerated the insurer, and claimant challenged that also – There is no proof that, claimant had paid any ticket fare to travel – Vehicle daily passing through that route is no proof of being used commercially – Insurer appointed an investigator, but his report not filed in the Court – Trial Court’s order exonerating the insurer is quashed.
Held: From perusal of the record, it appears that the f. I. R. Which is exh. A1 was lodged by one ramyash tiwari who was not travelling at the relevant time in the offending jeep. In the f. I. R. It is nowhere stated that the appellant was travelling in the offending jeep as a fare - paying passenger. N. A. Nos. 2 to 9 are the statements of ramkubai, hemabai, jhulu bai, rukhdi bai, jhabar singh, sona bai and gorlibai, who is appellant, which were recorded by the police between 30. 1. 2004 and 4. 2. 2004. The appellant has examined herself as aw 1 and dr. D. P. Joshi, aw 2. While the insurance company, respondent no. 3, has examined krishnalal, naw 1; ramyash tiwari, naw 2; arun k. Singh, naw 3 and manoharlal himself has come in the witness - box as naw 1. Gorlibai (appellant herein) , aw 1 has specifically denied that she was a fare - paying passenger. She has also denied that she has given the statement to the police to the effect that she paid a sum of rs. 5 as fare. Ramyash tiwari who is the sub - inspector of police, has admitted in his statement that at the time of recording of the statement gorlibai was in the hospital and was grievously injured. S. I. Ramyash tiwari has not stated in his examination - in - chief that he has recorded the statement of gorlibai relating to payment of fare. Respondent no. 3 has not taken any steps for calling the record of criminal case and also did not controvert the appellant to the effect that she has stated to the police authorities that she was a fare - paying passenger. For the purpose of contradiction it was necessary for the respondent no. 3 to call the original record of the criminal case, which was containing the statement of appellant. Only on the basis of admission of appellant to the effect that the offending vehicle passes through that route on daily basis, it cannot be said that the appellant was a fare - paying passenger. Manoharlal who is respondent no. 2 herein, has examined himself and he has stated that he was himself travelling in the offending jeep at the relevant time. He has further stated that the appellant was working at her place and he was knowing the appellant, therefore, appellant was allowed to travel in the offending jeep. Manoharlal was cross - examined by respondent no. 3 and it has been suggested by the respondent no. 3 that in connivance with police party, statement of the appellant was got changed. Statement of the appellant, exh. Na9, is original statement or the changed statement could have been proved only by calling the original record of the criminal case for which no steps have been taken by the respondent no. 3. It is true that some other claim cases were also filed by the claimants who were travelling in the offending jeep and the matters were settled by the respondent no. 2 out of the court. But, only on the basis of this it cannot be said that the appellant was a fare - paying passenger. Respondent no. 3 did not bother to call the other passengers who were travelling at the relevant time to prove the fact that they were fare - paying passengers. It is not in dispute that respondent no. 3 has appointed an investigator who has also submitted investigation report. Neither the investigation report has been filed nor investigator was examined. In the peculiar facts and circumstances of the case, in the opinion of this court learned tribunal has committed error in exonerating the respondent no. 3. (Paras 16 to 18).
Motor Vehicles Act, 1988, Section 173 – Accident – Appeal to enhance the Compensation – The injuries suffered is correctly compensated in the order of the Trial Court – Directions issued as to disbursement of that amount.
Held: So far as the compensation is concerned, looking to the injuries sustained by the appellant, the amount awarded by the learned tribunal appears to be just and reasonable which requires no enhancement. In view of this the appeal filed by the appellant stands allowed in part. Findings of the learned tribunal so far as it relates to the exoneration of respondent no. 3 is concerned stands set aside. The liability of payment of compensation of respondent no. 3 shall be joint and several with the respondent nos. 1 and 2. Learned tribunal is directed to deposit 80 per cent of the amount awarded in the name of appellant in a nationalised bank having its branch office nearest to the residence of appellant with a further direction to the concerned branch not to allow any loan on the amount of f. D. R. And interest shall be payable to the appellant on monthly basis by crediting the same in her savings bank account. (Para 19).
======== ======
Free Passenger in Private vehicle to get Insurance cover for accident, 2009 MP
2009 Legal Eagle MP page …
Gorlibai Vs. Kailash
m .a .no. 1677 of 200, 17-06-2009
Motor Vehicles Act, 1988, Section 149(2)(a) – Insurer's right to contest - Breach of conditions of Policy – Defence that, Private vehicle was used as Commercial – Trial Court exonerated the insurer, and claimant challenged that also – There is no proof that, claimant had paid any ticket fare to travel – Vehicle daily passing through that route is no proof of being used commercially – Insurer appointed an investigator, but his report not filed in the Court – Trial Court’s order exonerating the insurer is quashed.
Held: From perusal of the record, it appears that the f. I. R. Which is exh. A1 was lodged by one ramyash tiwari who was not travelling at the relevant time in the offending jeep. In the f. I. R. It is nowhere stated that the appellant was travelling in the offending jeep as a fare - paying passenger. N. A. Nos. 2 to 9 are the statements of ramkubai, hemabai, jhulu bai, rukhdi bai, jhabar singh, sona bai and gorlibai, who is appellant, which were recorded by the police between 30. 1. 2004 and 4. 2. 2004. The appellant has examined herself as aw 1 and dr. D. P. Joshi, aw 2. While the insurance company, respondent no. 3, has examined krishnalal, naw 1; ramyash tiwari, naw 2; arun k. Singh, naw 3 and manoharlal himself has come in the witness - box as naw 1. Gorlibai (appellant herein) , aw 1 has specifically denied that she was a fare - paying passenger. She has also denied that she has given the statement to the police to the effect that she paid a sum of rs. 5 as fare. Ramyash tiwari who is the sub - inspector of police, has admitted in his statement that at the time of recording of the statement gorlibai was in the hospital and was grievously injured. S. I. Ramyash tiwari has not stated in his examination - in - chief that he has recorded the statement of gorlibai relating to payment of fare. Respondent no. 3 has not taken any steps for calling the record of criminal case and also did not controvert the appellant to the effect that she has stated to the police authorities that she was a fare - paying passenger. For the purpose of contradiction it was necessary for the respondent no. 3 to call the original record of the criminal case, which was containing the statement of appellant. Only on the basis of admission of appellant to the effect that the offending vehicle passes through that route on daily basis, it cannot be said that the appellant was a fare - paying passenger. Manoharlal who is respondent no. 2 herein, has examined himself and he has stated that he was himself travelling in the offending jeep at the relevant time. He has further stated that the appellant was working at her place and he was knowing the appellant, therefore, appellant was allowed to travel in the offending jeep. Manoharlal was cross - examined by respondent no. 3 and it has been suggested by the respondent no. 3 that in connivance with police party, statement of the appellant was got changed. Statement of the appellant, exh. Na9, is original statement or the changed statement could have been proved only by calling the original record of the criminal case for which no steps have been taken by the respondent no. 3. It is true that some other claim cases were also filed by the claimants who were travelling in the offending jeep and the matters were settled by the respondent no. 2 out of the court. But, only on the basis of this it cannot be said that the appellant was a fare - paying passenger. Respondent no. 3 did not bother to call the other passengers who were travelling at the relevant time to prove the fact that they were fare - paying passengers. It is not in dispute that respondent no. 3 has appointed an investigator who has also submitted investigation report. Neither the investigation report has been filed nor investigator was examined. In the peculiar facts and circumstances of the case, in the opinion of this court learned tribunal has committed error in exonerating the respondent no. 3. (Paras 16 to 18).
Motor Vehicles Act, 1988, Section 173 – Accident – Appeal to enhance the Compensation – The injuries suffered is correctly compensated in the order of the Trial Court – Directions issued as to disbursement of that amount.
Held: So far as the compensation is concerned, looking to the injuries sustained by the appellant, the amount awarded by the learned tribunal appears to be just and reasonable which requires no enhancement. In view of this the appeal filed by the appellant stands allowed in part. Findings of the learned tribunal so far as it relates to the exoneration of respondent no. 3 is concerned stands set aside. The liability of payment of compensation of respondent no. 3 shall be joint and several with the respondent nos. 1 and 2. Learned tribunal is directed to deposit 80 per cent of the amount awarded in the name of appellant in a nationalised bank having its branch office nearest to the residence of appellant with a further direction to the concerned branch not to allow any loan on the amount of f. D. R. And interest shall be payable to the appellant on monthly basis by crediting the same in her savings bank account. (Para 19).
======= ========
Fact to be written correctly, otherwise come back to square-one, 2012 MP
2012 LE (MP)
SMT. BHAGWATI SHARMA
Vs THE STATE OF MADHYA PRADESH
Review Petition No. 408 Of 2012, 29.6.2012
Code of Civil Procedure, 1908, Section 114 – Review – Petition by the individual respondent in Service matter case, to restore her appointment – When allowed – In the writ petition at concerned para, the Resolution date is given wrongly – Impugned order is set aside – Original writ petition restored to file – To be heard afresh.
=== ======
Psychology of rape and false accusations, 2012 MP
2012 LE(MP) page …
CRIMINAL APPEAL NO.1739 OF 2002 (Delivered on the 27th day of June, 2012)
Makhmal Khan & others.
Vs.
State of Madhya Pradesh.
Indian Penal Code, 1860, Section 376(2)(g) – Gang rape – Time to commit rape – Accused were 3 in number – At least 30 minutes might have taken by them – Victim alleges, upon her shouting, her brother-in-law came to help her – She had opportunity to shout during rape, thus her not shouting for 30 minutes, and Doctor evidence not supporting rape, means false case is presumed.
Held: The conduct of the prosecutrix appears to be unnatural as depicted by herself. She had alleged that gang rape done by three persons in turn by turn, but for such an act at least time of 30 minutes must have been spent. According to the prosecutrix, her brother-in-law Bablu (PW-7) came to the spot after hearing hue and cry of the prosecutrix, it means that Bablu came after 30 minutes of the incident. It would be natural for a woman held by any criminal to make hue and cry from the very beginning and if Bablu was present near by the spot, then he could hear the hue and cry of his sister-in-law. If he was very near to the spot, then it is unnatural that he took 30 minutes in reaching to the spot when the appellants were running from the spot. The conduct of the prosecutrix and Bablu (PW-7) shown by the prosecutrix appears to be unnatural. (Para 11).
(Submission: the time of 30 minutes given for 3 persons, as a legal presumption is not accurate – The Editor beg to compare with the case of Alleged Comfort Girls of Japanese Army of second world war, from the material of which Copyright is owned by M/s exordio.com ©2000-©2011, name of the report: Report No.49, Japanese Prisoners of war interrogation on prostitutiton, prisoners 20 Korean Comfort girls, date of interrogation 20th August to 10th September 1944; Report made by: United States, office of war information, Psychological Warfare Team, Attached to U.S. Army Forces, India Burma Theater, vide APO 689. A "comfort girl" is nothing more than a prostitute or "professional camp follower" attached to the Japanese Army for the benefit of the soldiers. The word "comfort girl" is peculiar to the Japanese. Other reports show the "comfort girls" have been found wherever it was necessary for the Japanese Army to fight. This report however deals only with the Korean "comfort girls" recruited by the Japanese and attached to their Army in Burma. The Japanese are reported to have shipped some 703 of these girls to Burma in 1942. RECRUITING: Early in May of 1942 Japanese agents arrived in Korea for the purpose of enlisting Korean girls for "comfort service" in newly conquered Japanese territories in Southeast Asia. The nature of this "service" was not specified but it was assumed to be work connected with visiting the wounded in hospitals, rolling bandages, and generally making the soldiers happy. PRIOR SYSTEM: The conditions under which they transacted business were regulated by the Army, and in congested areas regulations were strictly enforced. The Army found it necessary in congested areas to install a system of prices, priorities, and schedules for the various units operating in a particular areas. According to interrogations the average system was as follows: (1) Soldiers (= Sepoy and Lance Naik), 10 am to 5 pm, charges 1.50 yen, each soldier permitted to spend time of 20 to 30 minutes. (2) NCOs (= Naik to Subedar Major, who are Non commissioned officers of Army), 5 pm to 9 PM, charges 3.00 yen, each NCO permitted to spend time of 30 to 40 minutes. (3) Officers ( = Commissioned officers, rank of 2nd Lieutenant and above) 9 PM to 12 PM, charges 5.00 yen, each Officer permitted to spend time of 30 to 40 minutes”. By quoting this Report of 1944, the Editor beg to submit that, 3 accused may or may not leave the rape victim alone, some time, up to 2 hours – Editor, Legal Eagle).
Indian Penal Code, 1860, Section 376(2)(g) – Gang rape – Important judgment discussing the Motive, inspiration etc of the accused and victim – This judgment deserves complete reading for education purpose – Victim aged 35 years, only injuries are inside thighs, means false evidence to prove violence – One sided enemity, the daughter of victim eloped with nephew of accused – Conduct of victim not reliable – Appeal by the accused allowed – Acquitted.
Held: In the present case findings of the Court below are totally dependent upon the evidence of the prosecutrix and her conduct. Learned Additional Sessions Judge relied upon the evidence of the prosecutrix on the basis of some case laws. However, it is to be made clear that a precedent given by the upper Court may apply in the case, if facts of the case are similar. First of all, it is to be assessed on appreciation of evidence that whether the witnesses are believable or not. In the present case, there are several discrepancies visible in the evidence of the prosecutrix and her conduct. Firstly, there was no possible reason to commit gang rape by the appellants upon the prosecutrix, secondly there was one sided enmity between the parties, and therefore false implication of the appellants in the matter cannot be ruled out, thirdly Bablu (PW-7), brotherin- law of the prosecutrix did not support the evidence of the prosecutrix, fourthly the medical evidence is not in support of the prosecutrix, fifthly conduct of the prosecutrix in lodging the FIR makes her statement doubtful and lastly if discrepancies are summarized in totality, the prosecutrix appears to be unbelievable?
A rape can be committed by a mature person for the reason of lust, but for such a reason there must be some background. It is not stated by the prosecutrix that the appellants had a bad eye upon her in past or they tried to do such an act with her in the past. The prosecutrix was a mature woman aged 35 years at the time of incident. Whose daughter was married with the nephew of the appellants, and therefore it is apparent that it is not a case of lust. Secondly, a rape can be committed upon the mature woman only to embrace her, to defeat her or to insult her. In the present case, there was no enmity shown by the prosecutrix against the appellants so that they could commit such a crime to insult her. It is not a case where the prosecutrix or her husband was in possession of some property of the appellants, and therefore to pressurize her such an act was committed with her. The prosecutrix did not allege any enmity between herself or her husband with the appellants. She was suggested that her daughter Hasina left her house with one Jafar Khan and now living as a wife of Jafar Khan, whereas Jafar Khan is son of one Qasim Khan, real brother of appellant Makhmal Khan, whereas remaining appellants are uncles of said Jafar Khan. The prosecutrix admitted the fact that her daughter Hasina left her house with Jafar Khan and she is residing as a wife of Jafar Khan at present. Remaining portion of suggestions was not accepted by the prosecutrix. However, it is apparent that the appellants are beneficiaries in the relationship. Their nephew took his wife of his own choice and therefore there was no need to take any revenge by the appellants against the family of the prosecutrix. But on the other hand, the prosecutrix might have felt insulted because of that incident and hence she could implicate the appellants falsely in such a heinous matter. Under such circumstances, it is apparent that there was no object or motive with the appellants to commit a gang rape with the prosecutrix whereas she was relative to the appellants. (Paras 9 and 10).
Criminal Procedure Code, 1973, Section 313 – Statement of accused – Light in the agricultural field – To identify gang rape accused – Trial Court suo-moto held that, there was sufficient moon light – The Calendar was not brought on evidence, and not shown to the accused – Source of light and identification not proved.
Criminal Procedure Code, 1973, Section 154 – FIR – Delay – Distance between place of rape and Police Station is 25 kms – Time reached there implies, victim did not go by walk – Once went by vehicle, after she reached there, 2½ hours delay to file FIR – FIR not relied.
Criminal Procedure Code, 1973, Section 154 – FIR – Rape victim went alone to Police Station – Straight from the place of rape – Allegation in the FIR about presence of her Brother-in-law, while filing FIR is not proved – FIR not relied.
Family law – Elopment – Girl’s mother alleged rape by boy’s uncles – Complaint found to be false – Convicted by the Trial Court – Acquitted by the High Court, in Appeals – Muslim Law.
Criminal Procedure Code, 1973, Section 82 – Proclaimed offender – When can be acquitted – Accused of gang rape – Out of 3 accused, one remained without trial and declared Proclaimed offender – Two persons got convicted – Their criminal appeal was allowed and were acquitted – Benefi