Monday, July 11, 2016

Food For Thought (Writ Petition under Constitution of India)

  1. The two well recognized exceptions to the requirement of exhaustion of the statutory remedies before the extraordinary jurisdiction of the HC is invoked, are (1) where the order impugned is passed without jurisdiction, and (2) where the order is passed in violation of natural justice.

  1. The vast majority of petitions under Article 226 are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other so as to paralyze the collection of revenue.

  1. Every citizen whose fundamental right is infringed by the State has a fundamental right to approach the Court for enforcing his right.

  1. Where a party had a statutory remedy available under the relevant statute, he cannot bypass the said remedy and file a Writ Petition under Article 226. If such a procedure is allowed, it may enable the litigant to defeat the provisions of the statute.
    A Writ petition should not be entertained when statutory remedy is available under the concerned legislation unless exceptional cases are made out.

  1. Certiorari does not lie to quash the Judgments of inferior courts of civil jurisdiction.

  1. Both certiorari and prohibition are employed for the control of inferior courts, tribunals and public authorities.

  1. Certiorari was meant to supervise “judicial acts” which included quasi judicial functions of administrative bodies.

  1. It is plain that certiorari will not be issued as the cloak of an appeal in disguise.

  1. A judicial order of a competent court could not violate a fundamental right.

  1. Final order of the Apex Court cannot be challenged under Article 32 as violative of fundamental right.

Food For Thought (Constitution of India)

  1. Article 300-A Constitution of India : - … person shall be deprived of his property save by authority of law.

  1. Article 14 of the Constitution of India guarantees to every person equal treatment before law and extends protection of the laws in equal measures to all. “Equality before law” declares that every person is equal before law, no one can claim special privilege and that all classes are equal subject to the ordinary law of the land.

  1. Equality is the antithesis of arbitrariness.

  1. Equality : - There shall be no privileged person or class and that none shall be above law.

  1. All that Article 14 guarantees is the similarity of treatment and not identical treatment.

  1. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment.

  1. Arbitrariness violates Article 14.

Food For Thought (Civil Law)

  1. Time is the essence of the contract.

  1. The amendment of the plaint should be permissible only of sufficient ground thereof is made out.

  1. The Plaintiff must prove the facts which establish his entitlement before he succeeds in the suit.

  1. The order of inspection is not to be provided for collecting evidence for the parties. And such investigation is necessary only when the parties are incapable of having knowledge or inspection in view of nature of the suit.

  1. Since an adoption diverts the normal course of succession, the Court has to be extremely alert and vigilant to guard against being ensnared by schemers who indulge in unscrupulous practice out of their lust for property.

  1. The propounder of WILL is obliged to dispel the cloud of suspicion.

  1. After a document is void ab initio and is an illegal document from its very inception, it is not required either to cancel or to set aside by filing a suit, because according to law, such a document does not exist.

  1. The executing Court does not have power to go behind the decree.

  1. Review, revision or appeal is creation of a statute. Authority which is not vested with power of review, revision or appeal cannot exercise said powers.

  1. The Amin Commissioner's report, even though it is not challenged by any of the parties, is not binding on the Court.

  1. Acceptance of rent may waive claim of landlord to evict the tenant.

  1. The Court being an authority to receive a document in evidence is bound to give effect thereto. A document tendered in evidence should be duly stamped or should comply with requirements of Section 35 of the Stamp Act.

  1. Title or caption or the nomenclature of the instrument/ document is not determinative of the nature and character of the instrument/ document, though the name may usually give some indication of the nature of the document. The nature and true purpose of a document has to be determined with reference to the terms of the document which express the intention of the parties.

  1. Under Section 9 of the CPC, the Civil Court has inherent jurisdiction to try all types of civil disputes unless its jurisdiction is barred expressly or by necessary implication, by any statutory provision and conferred on any other tribunal or authority.

  1. Section 10 of the Specific relief Act, 1963 lays down, inter alia, that unless and until the contrary is proved the Court shall presume that breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money.

  1. Temporary injunction if granted would not bind persons other than those against whom it is issued.

  1. The Consolidation authorities are vested with the power under OCH & PFL Act to decide the question of right, title and interest in land and civil Court's jurisdiction to decide such questions has been ousted by virtue of Section 51 and 4 (4) of the OCH & PFL Act.

  1. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. The form is not to be emphasized whereas the substance of pleading should be considered.

  1. Section 8 TP Act : - ….......a transfer of property passes forthwith to the transferee all the interest which the transferer is then capable of passing in the property and in the legal incidents thereof.

  1. Title of land passes upon valid execution of sale-deed.

  1. A partnership is governed by the provisions of the Indian Partnership Act, 1932.

  1. According to O.15, R.3, the hearing of the suit includes both production of evidence, as well as argument.

  1. Suit must start with a plaint and culminate in a decree.

Food For Thought (Criminal Law)

  1. Sentence of imprisonment for life means jail till the end of normal life of the convict.

  1. Order of acquittal strengthens the presumption of innocence of the accused.

  1. A Court deciding a criminal case must go by the legal evidence adduced before it.

  1. An admission must be used either as a whole or not at all.

Food For Thought (Law)

  1. Each case will have to be decided on its own merits.

  1. The Supreme Court must uphold the rule of law.

  1. To facilitate grant of substantial justice procedural rigority may not be permitted to overpower the judicial discretion and in appropriate cases delay be condoned, abatement be set aside and substitution be allowed.

  1. When an Act enjoins upon a specified authority that a particular act has to be done in a particular manner so that it may have jurisdiction to act further in the matter, the Act must be done in that manner in order to be considered valid, and confer on the authority such further jurisdiction.

  1. A 'decree nisi' or 'rule nisi' (from Latin nisi, meaning “unless”) is a court order that does not have any force unless a particular condition is met, the ruling becomes a decree absolute (rule absolute), and is binding.

  1. Adhering to the procedure prescribed under the rules is sine qua non in every proceedings.

  1. In order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive Judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement.

  1. Once principles of natural justice is violated the order becomes a nullity.

  1. Where questions of law were involved, the matter should be assigned to a Division Bench of the learned Tribunal.

  1. One facet of principles of natural justice is that no body should be condemned unheard.

  1. For the fault of the Court, a party should not be allowed to suffer.

  1. The object of the Court is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their right.

  1. What cannot be done directly is not permissible to be made indirectly.

  1. The object of the rule of law is to protect the weak and the helpless, the distressed and the down-trodden and it should not be restricted to a particular class or community.

  1. Cause of action is a bundle of facts, which are required to be pleaded and proved for the purpose of obtaining relief claimed in the suit.

  1. The Court would be slow to throw out a claim on a mere technicality of pleading when substance of the thing is there. It is for the Judge to apply law to the facts of the case.

  1. Law need not be pleaded and it is the duty of the Court to apply law to the facts proved and found.

  1. Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision and fresh proceedings are left open.

  1. The reasonable opportunity is not confined only to the reply given to the show cause or the evidence adduced in its support, but it also includes the consideration of the defence taken by a person while taking a decision by the decision making authority.

  1. A citizen has a legitimate and fundamental right to get justice by setting the criminal law in motion. A citizen has right to access judicial remedy which is a constitutionally protected right.

  1. Fraud amounts to abuse of the process of Court.

  1. Court is not expected to give indulgence to such indolent person, who compete with “Kumbhakarna” or for that matter with Rip Van Winkle.

  1. Every award shall be a decree and the statement of grounds of every award shall be a Judgment.

  1. If there is a conflict, attempt should be made to harmoniously construe the provisions.

  1. The essence of a decision is its ratio, not every observation found therein.

  1. A decision between the parties, which stands, not having been appealed from, binds them and it would not be open to either of the parties to challenge its correctness by initiating fresh proceedings.

  1. Where power is to be exercised by certain authority in a certain way, it should be exercised in that manner or not at all and all other modes of performances are necessarily forbidden.

  • If an action is required to be under taken in a particular manner then that has to be done in that manner or not at all.

  • If the statute prescribes a thing to be done in a particular manner, the same should be done in the same manner or not at all.

  1. Administrative action must be supported by reasons.

  1. State action to be fair and legitimate.

  1. Law made by Central Legislation shall prevail over the State Legislation.

  1. At any stage before pronouncement of Judgment a case can be reopened to discover the truth, which is the very purpose of any judicial trial.

  1. The power of review is not inherent in a Court or Tribunal. It is a creature of the statute.

  1. Law affecting procedure is always retrospective.

  1. The High Courts are not constituted as inferior courts in our constitutional scheme.

  1. Challenge to judicial orders could lie by way of appeal or revision or under Article 227 and not by way of a writ under Article 226 and 32.

  1. Where a statutory right to file an appeal has been provided for, it is not open to the HC to entertain a petition under Article 227 Constitution of India.