CUSTOM SEARCH

AN ORDER EVEN IF VOID NEEDS TO BE CHALLENGED BEFORE APPROPRIATE FORUM

In a case before The Supreme Court Of India, Krishnadevi Malchand Kamathia & ... vs Bombay Enviornmental Action ... Decided on 31 January, 2011 By bench consisting of Justice P Sathasivam, and Justice Dr B.S. Chauhan, It is settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil (dead) & Ors., AIR 1996 SC 906; Tayabbhai M. Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd. etc, AIR 1997 SC 1240; M. Meenakshi & Ors. v. Metadin Agarwal (dead) by L.Rs. & Ors. (2006) 7 SCC 470; and Sneh Gupta v. Devi Sarup & Ors., (2009) 6 SCC 194, this Court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum. In State of Punjab & Ors. v. Gurdev Singh, Ashok Kumar, AIR 1991 SC 2219, this Court held that a party aggrieved by the invalidity of an order has to approach the court for relief of declaration that the order against him is inoperative and therefore, not binding upon him. While deciding the said case, this Court placed reliance upon the judgment in Smith v. East Ellore Rural District Council, [1956] 1 All ER 855 wherein Lord Radcliffe observed:- "An order, even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders." In Sultan Sadik v. Sanjay Raj Subba & Ors., AIR 2004 SC 1377, this Court took a similar view observing that once an order is declared non-est by the Court only then the judgment of nullity would operate erga omnes i.e. for and against everyone concerned. Such a declaration is permissible if the court comes to the conclusion that the author of the order lacks inherent jurisdiction/competence and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity. Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person.

CROSS EXAMINATION AND ITS EFFECT IN APPRECIATION OF EVIDENCE

Sat Paul vs Delhi Administration AIR 1976 SC 294 “It is important to note that the English statute differs materially from the law contained in the Indian Evidence Act in regard to cross-examination and contradiction of his own witness by a party. Under the English Law, a party is not permitted to impeach the credit of his own witness by general evidence of his bad character, shady antecedents or previous conviction. In India, this can be done with the consent of the court under Section 155. ………. the grant of such leave has been left completely to the discretion of the Court, the exercise of which is not fettered by or dependent upon the "hostility" or "adverseness" of the witness. In this respect, the Indian Evidence Act is in advance of the English law………………….. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as Washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto.”


Ennen Castings Pvt. Ltd. (In Liquidation) vs M.M. Sundaresh And Ors. AIR 2003 Kant 293, JUSTICE N KUMAR Considering the question whether a co-respondent can cross-examine the other respondent, who has given evidence against him observed that:- “The essence of cross-examination is that it is the interrogation by the advocate of one party of a witness called by his adversary with the object either to obtain from such witness admissions favourable to his cause or to discredit him. Cross-examination is the most effective of all means for extracting truth and exposing falsehood. The object is to impeach the accuracy, credibility and general value of the evidence given in chief to sift the facts already stated by the witness to detect and expose discrepancies or to elicit suppressed facts which will support the case of the cross-examination party. The exercise of his right is justly regarded as one of the most efficacious tests, which the law has devised for the discovery of truth. It is beyond any doubt the greatest legal engine ever invented for the discovery of truth. The right of cross-examination belongs to an adverse party and parties who do not hold that position should not be allowed to take part in the cross-examination.”……….. As a general rule, evidence is not legally admissible against a party, who at the time it was given had no opportunity to cross-examine the witness or of rebutting their testimony by other evidence. When two or more persons are tried on the same indictment and are separately defended any witness called by one of them may be cross-examined on behalf of the others, if he gives any testimony to incriminate them. A defendant may cross-examine his co-defendant who gives evidence or any of his co-defendant's witnesses, if his co-defendant's interest is hostile to his own…………………..Though there is no specific provision in the Indian Evidence Act providing for such an opportunity for a defendant-respondent to cross-examine a co-defendant/co-respondent, however, having regard to the object and scope of cross examination, it is settled law that when allegations are made against the party to the proceedings, before that evidence could be acted upon, that party should have an ample opportunity to cross-examine the person who had given the evidence against him. It is only after such an opportunity is given, and the witness is cross examined that evidence becomes admissible……………. Therefore, it is very clear from the aforesaid passages that it is the settled law that no evidence should be received against one who had no opportunity of testing it by cross-examination ; as it would be unjust and unsafe not to allow a co-accused or co-defendant to cross-examine a witness called by one whose case was adverse to him, or who has given evidence against. If there is no conflict of interest, such an opportunity need not be given. Therefore, the condition precedent for giving an opportunity to a defendant-respondent to cross-examine a co-respondent or a defendant is either from the pleadings of the parties or in the evidence, there should exist conflict of the interest between them. Once it is demonstrated that their interest is not common and there is a conflict of interest and evidence has been adduced, affecting the interest of the co-defendant/co-respondents, then before the court could act on that evidence, the person against whom the evidence is given should have an opportunity to cross-examine the said witness, so that ultimately truth emerges on the basis of which the court can act.


Madarbi, W/O Mahaboob Sab vs Mulla Sab Mardan Sab ILR 1996 KAR 1674, Referring a case of PANCHAPPA v. STATE OF KARNATAKA, I.L.R 1989 Karnataka 974 wherein it has been held that any minor discrepancy in the order which does not affect the merits and does not result in miscarriage of justice is to be overlooked. Right to cross-examine the witness is a fundamental right of a party against whom the witness has deposed. If a party is not given an opportunity to cross-examine the witness, then it cannot be said to be a minor discrepancy which does not go to the root of the matter. In such a context, the Court cannot brush it aside as a minor contradiction or minor discrepancy and confirm the order of the Tribunal based on such evidence.

MARY M.D'SOUZA v. MUNICIPAL COMMISSIONER, MANGALORE CITY MUNICIPALITY, 1968(1) Kar.L.J. 90, wherein this Court has held that a plea which has not been raised in the affidavit in support of the Writ Petition cannot be permitted to be raised at the hearing without the leave of the Court.

LEGAL REPRESENTATIVES IN CIVIL LAW

Ramachandra vs Laxmana Rao AIR 2000 Kant 298, ILR 2000 KAR 2341, Section 146 of the CPC. This provision reads: "146. Proceedings by or against representatives.--Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him". On an analytical reading of Section 146, one legal position which clearly emerges is that where any legal proceeding may be taken or an application for a legal proceeding may be made by or against any person, then, that proceeding may also be taken or application for the same may be made by or against any persons claiming under him. This provision deals with legal proceedings by or against representatives of the parties to a dispute or to a decree or final order of any competent Court. Its operation is general in nature, except that it is circumscribed by the beginning saving clause "save as otherwise provided by this Code or any law for the time being in force".

The Supreme Court in the case of Jugalkishore Saraf v Raw Cotton Company Limited, AIR 1955 SC 376 has, in regard to the curtailing effect of this saving clause on the scope of Section 146, said: "The effect of the expression "save as otherwise provided in this Code" contained in Section 146 is that a person cannot make an application under Section 146 if other provisions of the Code are applicable to it".


Karnataka High Court has held in Hajaresab -v.- Udachappa, since deceased by his L.Rs., and others. ILR 1984 KAR 900 " Therefore, under these circumstances, what emerges is that though the decree for injunction does not run with the land, still under Section 50 of the Code of Civil Procedure, the legal representatives of the deceased defendant, against whom the decree for injunction is passed, would be liable for violation of that decree. However, their liability, as held in Sakarlal's Case, would be limited to the attachment of the property of the deceased, which has come to their hands. The other penalty imposed by Order 21 Rule 32 of the Code of Civil Procedure, by arrest and detention in Civil prison cannot be enforced in the case of the legal representatives at all."

No oral testimony can be considered satisfactory or valid unless it is tested by cross-examination

AIR 1989 SC 162 Supreme Court in the case of Modula India v. Kamakshya Singh Deo, and has held as under.- "It is a well-established proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross-examination. The mere statement of the plaintiffs witnesses cannot constitute the plaintiffs evidence in the case unless and until it is tested by cross-examination. The right of the defence to cross-examine the plaintiffs witnesses can, therefore, be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiffs evidence cannot be acted upon. Looked at from this point of view it should be possible to take the view that, though the defence of the tenant has been struck out, there is nothing in law to preclude him from demonstrating to the Court that the plaintiffs witnesses are not speaking the truth or that the evidence put forward by the plaintiff is not sufficient to fulfill the terms of the statute". Further, it held.- "We, therefore, think that the defendant should be allowed his right of cross-examination and arguments. But, we are equally clear that this right should be subject to certain important safeguards. The first of these is that the defendant cannot be allowed to lead his own evidence. None of the observations or decisions cited have gone to the extent of suggesting that, in spite of the fact that the defence has been struck off, the defendant can adduce evidence of his own or try to substantiate his own case"…… Supreme Court had to say.- "Again under Rule 10 when any party from whom a written statement is required fails to present the same within the time permitted or fixed by the Court, the Court "shall pronounce judgment against him or make such order in relation to the suit as it thinks fit". It will be seen that these rules are only permissive in nature. They enable the Court in an appropriate case to pronounce a decree straightaway on the basis of the plaint and the averments contained therein. Though the present language of Rule 10 says that the Court "shall" pronounce judgment against him, it is obvious from the language of the rule that there is still an option with the Court either to pronounce judgment on the basis of the plaint against the defendant or to make such other appropriate order as the Court may think fit. Therefore, there is nothing in these rules, which makes it mandatory for the Court to pass a decree in favour of the plaintiff straightaway because a written statement has not been filed".

CONSEQUENCES OF NOT FILING WRITTEN STATEMENT

Basalingappa Chinnappa Goudar And Ors. vs Shantavva And Ors ILR 2002 KAR 260, 2001 (6) KarLJ 460 “In a suit the defendant has the right to show that the case pleaded by the plaintiff is false or cannot be acted upon and in addition to that he can put forth his defence to defeat the claim of the plaintiff. By not filing the written statement he loses his right to put forth his defence to defeat the claim of the plaintiff only but he does not lose his right to demolish the case of the plaintiff by cross-examination. The defendant by cross-examination of the plaintiff and his witnesses can demolish the case of the plaintiff and also address arguments on the basis of the evidence led by the plaintiff, and also make submission on law and satisfy the Court that on the material on record, the plaintiffs case cannot be accepted and no decree can be passed in favour of the plaintiff……….. However, it is made clear that the defendant would not be entitled to lead any evidence nor his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weakness of the plaintiffs case, and he be permitted to project his defence either directly or indirectly or in the form of suggestions to the plaintiffs witnesses.”

RIGHT OF CROSS EXAMINATION

In STATE OF MADHYA PRADESH v. CHINTAMAN SADASHIVA WAISHAMPAYAN, AIR 1961 SC 1623 the Supreme Court while finding flaw in the procedure of the enquiry held thus: "6..... Thus, it was of very great importance for the defence to cross-examine these two witnesses, and for that: purpose the respondent wanted copies of their prior statements recorded by Mr. Ghatwal in his preliminary enquiry. It is difficult to understand how these statements could be regarded as secret papers, for that alone is the reason given for not supplying their copies to the respondent. Failure to supply the said copies to the respondent made it almost impossible for the respondent to submit the said two witnesses to an effective cross-examination; and that in substance deprived the respondent of a reasonable opportunity to meet the charge……….. 10. It is hardly necessary to emphasise that the right to cross-examine the witnesses who give evidence against him is a very valuable right and if it appears that effective exercise of this right has been prevented by the enquiry officer by not giving to the officer relevant documents to which he is entitled, that inevitably would be that the enquiry had not been held in accordance with rules of natural justice."

AIR 1977 SC 170 the Apex Court has held that: "A party will not normally be allowed to cross-examine its own witness and declare the same hostile, unless the Court is satisfied that the statement of the witness exhibits an element of hostility or that he has resiled from a material statement which he made before an earlier authority or where the Court is satisfied that the witness is not speaking the truth and it may be necessary to cross-examine him to get out the truth."

AMENDMENT OF WRITTEN STATEMENT & FILING OF ADDITIONAL WRITTEN STATEMENT

P.A. Jayalakshmi VS H. Saradha & Ors. JUSTICE S.B. Sinha JUSTICE Deepak Verma, New Delhi; July 21, 2009, Code of Civil Procedure, 1908: Or. VIII, r. 9 and proviso to Or. VI, r. 17 - Additional pleadings - Suit
for partition - Application filed by defendant-appellant seeking leave to file additional written statement - Rejected by Courts below - Justification of - Held: On facts, justified - The application was filed at a much belated stage - Statutory limitations brought about by reason of amendments in CPC to be kept in mind. Respondents filed suit for partition in the year 2004. Appellant filed written statement in 2006 and on 1-3-2007, filed application purportedly in terms of Or.VIII, r.9 CPC seeking leave to file additional written statement with regard to a Will in regard to the suit property, which was not mentioned in the written statement. By that time examination of one witness was over. The Will was purportedly executed in 1993 and it was urged by the appellant that she discovered the existence of Will only on 5-2-2007. The said application was dismissed by the Trial Court. Revision petition filed by appellant was dismissed by the High Court. It was contended that the Courts below failed to take into consideration that in effect and substance, appellant's application should have been treated to be one for amendment of written statement as envisaged under Order VI, r.17 CPC and not one for leave to file additional pleadings as envisaged under Or.VIII, r.9 thereof; that the appellant having raised a contention that she discovered the existence of Will only on 5-2-2007, even the requirements of the proviso appended to
Or.VI, r.17 CPC must be held to have been satisfied and that by reason of the said application, the appellant did not bring about any change in the principal contention raised in her written statement as the said Will was sought to be brought on record wherefor requisite pleadings were necessary only to support her case that the property in question was not a joint family property. Dismissing the appeal, the Court held, With a view to put an end to the practice of filing applications for amendments of pleadings belatedly, a proviso was added to Order VI Rule 17 CPC. Order VI Rule 17 speaks of amendment of pleadings whereas Order VIII Rule 9 CPC provides for subsequent pleadings by a defendant. The distinction between the two provisions is evident. Whereas by reason of the former unless a contrary intention is expressed by the court, any amendment carried out in the pleadings shall relate back to the date of filing original thereof, subsequent pleadings stand on different footings.


In the present case, for reasons best known to the appellant, she had chosen to file her application seeking leave to file additional pleadings. Such a stand might have been taken by her with a view to obviate the bar created by reason of the proviso appended to Order VI, Rule 17 of CPC. The firm stand taken by the appellant both before the Trial Court as also the High Court was that her application was under Order VIII, Rule 9 of CPC . At no point of time, a contention was raised that she wanted to amend her pleadings.

Ordinarily at such a belated stage, leave for filing additional written statement is usually not granted. Noticeably one of the plaintiffs was examined on 1.3.2007. Despite the fact that the appellant is said to have discovered the existence of the Will on or about 5.2.2007, no question was put to the said witness with regard to the said Will or otherwise. It is only at a later stage that the aforementioned application for grant of leave to file additional written statement was moved. There cannot be any doubt or dispute that the courts should be liberal in allowing applications for leave to amend pleadings but it is also well settled that the courts must bear in mind the statutory limitations brought about by reason of the Code of Civil Procedure (Amendment) Acts; the proviso appended to Order VI Rule 17 being one of them.

WRITTEN STATEMENT AND ADDITIONAL WRITTEN STATEMENT – DELAY AND CHANGE IN STAND EXPLAINED BY SUPREME COURT

The Hon’ble Supreme court of India in Olympic Industries VS Mulla Hussainy Bhai Mulla Akberally & Ors. JUSTICE Tarun Chatterjee, JUSTICE H.L. Dattu, July 07, 2009. CODE OF CIVIL PROCEDURE, 1908: Or.8, r.9 - Subsequent pleadings - Additional written statement - Held: Even by filing an amendment or additional written statement, it is open to defendant to add a new ground of defence or to substitute or alter the defence or even to take inconsistent pleas in the written statement so long as the pleadings do not result in causing grave injuries/irretrievable prejudice to plaintiff - Mere delay is not sufficient to refuse amendment of pleadings or an additional written statement. Mere delay is not sufficient to refuse to allow amendment of pleadings or filing of additional written statement under Order 8 Rule 9 of the Code of Civil Procedure, 1908 where no prejudice was caused to the party opposing such amendment or acceptance of additional written statement which could easily be compensated by cost. That apart, the delay in filing the additional written statement has been properly explained by the appellant. Even if the examination of PW-1 or his cross-examination was over, then also, it was open to the court to accept the additional written statement filed by the appellant by awarding some cost against the appellant. Even by filing an amendment or additional written statement, it is open to the defendant to add a new ground of defence or substituting or altering the defence or even taking inconsistent pleas in the written statement as long as the pleadings do not result in causing grave injustice and irretrievable prejudice to plaintiff or displacing him completely. It is well settled that courts should be more generous in allowing the amendment of written statement than in the case of plaint. While allowing additional written statement or refusing to accept the same, the court should only see that if such additional written statement is not accepted, the real controversy between the parties could not be decided. In the instant case, by filing additional written statement, no injustice/prejudice would be caused to the respondents, but that would help the court to decide the real controversy between the parties.

COURT CANNOT IMPOSE COSTS EXCEEDING ITS LIMITS UNDER CPC AND ALSO IT CANNOT DIRECT THE COSTS TO BE PAID TO LEGAL SERVICES AUTHORITY

The Hon’ble Supreme court of India in ASHOK KUMAR MITTAL VS. RAM KUMAR GUPTA & ANR. 2009(1) SCALE 321 , Justice R V Raveendran, Justice J M Panchal, New Delhi; January 9, 2009 “Exemplary costs - Imposition of - Courts should not exceed the limitations placed by CPC in this regard - Principles and practice relating to administrative law matters cannot be imported mechanically to civil litigation governed by the Code - Levy of huge costs in selected matters made payable to legal Services Authorities or non-party charitable organizations should be avoided - As regards the costs, courts should not exceed or overlook the limitations placed by the Code of Civil Procedure, 1908 with reference to costs in civil litigation. The principles and practices relating to levy of costs in administrative law matters cannot be imported mechanically in relation to civil litigation governed by the Code. On the aspect of the recipient of the costs, once the High Court held that costs had to be paid to the State, it should not have directed payment of the costs to the High Court Legal Services Committee, which being a statutory authority under the Legal Services Authorities Act, 1987, is not the 'State' that spends money on providing judicial infrastructure. Levy of huge amounts as costs in selected cases, made payable to Legal Services Authorities, may invite adverse comments and evoke hostility to legal services in general. The Court has also come across cases of costs being levied and made payable to some non-party charitable organizations. Levy of such costs should be avoided.”

CLARIFICATIONS REGARDING COPY RIGHT QUERIES AND SUGGESTIONS RECIEVED

Regarding copyright queries being asked by many I quote Supreme court Judgement observations herein below in the case of Eastern Book Company & Ors. Vs D.B. Modak & Anr. AIR 2008 SC 809, the Hon’ble Supreme court headed by Justice B.N. AGRAWAL & Justice P.P. NAOLEKAR observes in the following words and explains in detail and clarifies the position of law as to the copyright in Judgements of courts “In the absence of any agreement to the contrary, the Government shall be the first owner of the copyright in the judgments of the Supreme Court, the same being a Government work in terms of Section 2(k) of the Act. …………… The judicial pronouncements of the Apex Court would be in the public domain and its reproduction or publication would not infringe the copyright. The reproduction or publication of the judgments delivered by the Supreme Court by any number of persons would not be infringement of a copyright of the first owner thereof, namely, the Government, unless it is prohibited…………………. The judicial pronouncements of the Apex Court would be in the public domain and its reproduction or publication would not infringe the copyright. That being the position, the copy-edited judgments would not satisfy the copyright merely by establishing amount of skill, labour and capital put in the inputs of the copy-edited judgments and the original or innovative thoughts for the creativity are completely excluded. Accordingly, original or innovative thoughts are necessary to establish copyright in the author's work. The principle where there is common source the person relying on it must prove that he actually went to the common source from where he borrowed the material, employing his own skill, labour and brain and he did not copy, would not apply to the judgments of the courts because there is no copyright in the judgments of the court, unless so made by the court itself. ………………………... To secure a copyright for the judgments delivered by the court, it is necessary that the labour, skill and capital invested should be sufficient to communicate or impart to the judgment printed in the Report, SCC, some quality or character which the original judgment does not possess and which differentiates the original judgment from the printed one. The Copyright Act is not concerned with the original idea but with the expression of thought. Copyright has nothing to do with originality or literary merit. Copyrighted material is that what is created by the author by his own skill, labour and investment of capital, maybe it is a derivative work which gives a flavour of creativity. The copyright work which comes into being should be original in the sense that by virtue of selection, co-ordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author. ……………………….. It is clarified that the decision of this Court would be confined to the judgments of the courts which are in the public domain as by virtue of Section 52 of the Act there is no copyright in the original text of the judgments……………………… Although for establishing a copyright, the creativity standard applies is not that something must be novel or non-obvious, but some amount of creativity in the work to claim a copyright is required. It does require a minimal degree of creativity. Arrangement of the facts or data or the case law is already included in the judgment of the court. Therefore, creativity of the Report, SCC, would only be addition of certain facts or material already published, case law published in another law report and its own arrangement and presentation of the judgment of the court in its own style to make it more user- friendly. …………… when the editor has put an input whereby different Judges' opinion has been shown to have been dissenting or partly dissenting or concurring, etc. It also requires reading of the whole judgment and understanding the questions involved and thereafter finding out whether the Judges have disagreed or have the dissenting opinion or they are partially disagreeing and partially agreeing to the view on a particular law point or even on facts. In these inputs put in by the appellants in the judgments reported in the Report, the appellants have a copyright and nobody is permitted to utilize the same. …………….. It is further directed that the defendant-respondents shall not use the paragraphs made by the appellants in their copy-edited version for internal references and their editor's judgment regarding the opinions expressed by the Judges by using phrases like `concurring', `partly dissenting', etc. on the basis of reported judgments in SCC.”

KARNATAKA LAND LAWS

CASE LAW ON LAND LAWS