Civil Law Update: January-April 2016

1. Counterclaim can be filed after framing of Issues: The Supreme Court has observed that Counter claim can be filed even after framing of issues, if the recording of evidence is not concluded. Apex Court Bench made this observation in Vijay Prakash Jarath vs. Tej Prakash Jarath [SLP (C) 8536-8537 of 2008]. As per Order VIII Rule 6A (1) of the Code of Civil Procedure, 1908, right to file the counter claim is an additional right and the same must be filed in respect of any right or claim for which the cause of action must accrue either before or after filing of the suit but before the defendant must raise the defence.

2. Challenge to Section 6(2) (f) of the Passport Act: Mr. Prashant Bhushan has filed a Special Leave Petition that challenges Section 6(2)(f) of the Passports’ Act 1967 read with Notification 570(E) of the Central Government which require a person against whom there is any criminal case pending in any court to obtain an NOC from the concerned court and if the NOC is silent about the duration for which the passport may be issued, the passport shall be issued for only one year instead of normal 10 year validity. The petition has been filed on the ground that the Section 6(2)(f) of the aforesaid Act is in violation of article 14 of the Constitution of India as it does not distinguish a person between who is accused of committing a heinous crime and a person who is accused of minor crime or bailable or non-bailable offence. So, by imposing the same conditions against all those against whom criminal case is pending it would mean treating the unequal’s as equals and thereby violates of article 14 of the Constitution.

3. Transgender Bill: A draft of Transgender’s Right Bill to provide for in its preamble the formulation and implementation of a comprehensive national policy for ensuring overall development of the Transgender Persons and for their welfare to be undertaken by the State and for matters connected thereto is ready and released by ministry.

4.  Article 136 of the Constitution: A Five Judge Constitution Bench of the Supreme Court refused to revisit the scope of Article 136 of the Constitution of India or lay down guidelines regulating the power. The Constitution bench found that the issue had already been settled in various decisions of the Apex Court and that no effort should be made to restrict the power of the Supreme Court under Article 136. The Court disposed of a reference made by a two-Judge Bench on 2010, wherein it had reasoned that indiscriminate filing of petitions under the Article was flooding apex court and adding to its pendency.

5. Jurisdiction in MACT Matter: The Apex court in Malati Sardar vs. National Insurance Company Ltd. [Civil Appeal No. 10 of 2016] the question raised was whether the High Court was justified in setting aside the award of MACT Tribunal Court on the ground that it did not have territorial jurisdiction. The court held that the provisions of the MACT have been interpreted consistent with the object of facilitating remedies for victims of accident. Hyper technical approach in such matters can hardly be appreciated. The court held that there is no bar to filing the claim petition where the insurance company has the principle place of business it being the main contesting party. The decision of the court in Mantoo Sarkar vs. Oriental Insurance Company [2009] 2 SCC 244 in which the Hon’ble Court has held that the jurisdiction of the tribunal was wider than the civil court. Having regard to section 21 of CPC, objection of lack of territorial jurisdiction cannot be taken in the absence of any prejudice. Distinction was required to be drawn in subject matter in one hand and territorial or pecuniary jurisdiction on the other hand. In the former case the judgment may be a nullity but not in later case. In view of the Mantoo Sarkar judgment the court held the contrary view is not sustained.

6. Question of Fact in Second Appeal: The apex court in Damodar Lal vs. Sohan Devi [Civil Appeal of 231 of 2015] the issue was appellant case was successful in first trial court and first appellate court and was reversed by the High Court in second appeal purely on question of fact. It is settled position of law through several decisions that the trial court in first appeal under section 96 of the Code of Civil Procedure, 1908 is the last court of appeal on question of fact unless the findings are based on evidence and are perverse. The court observed in this case that it has no hesitation in saying that question of law framed by High Court are not substantial question of law. If the finding of the fact is wrong, that by itself will not constitute the question of law. The wrong finding should stem out of complete misreading of evidence or it should be based on only conjectures or surmises. Safest approach is the classic approach on the reasonable man’s interference on the facts. To him if the conclusion of facts is possible, then there is no perversity. If not finding is perverse then the inadequacy or different reading of evidence is not perverse. The apex court held that the High Court should not have interfered with the concurrent findings of the trial court and first appellate court on question of fact.

7.  Consequences of Tendering False Affidavit: The Hon’ble Supreme Court in M/s Schiemed Overseas Inc. vs. BOC India Ltd. [Appeal No. 29125 of 2008] decided recently has adjudicated on the issue whether the cost imposed on the Petitioner of Rs. 10 Lakhs for filing the false and misleading affidavit is justified or not. The court observed that there is a global increase in the number of cases relating to filing of false affidavit and therefore there is a need to discourage the unhealthy trend. The court reiterated in suo moto proceedings against R.Kurruppan Advocate (2001) 5 SCC 289 wherein it was observed that the Hon’ble court had held that the sanctity of affidavits be maintained and at the same time the false, irresponsible statements without accuracy needs to be discouraged. Similarly the apex court observed that in Muthu Karruppan vs. Hamvazhuthi [(2011) 5 SCC 496] the Hon’ble Court had said the practice of filing false affidavit needs to be curbed with strong hand.

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