Jail Will Not Be Held On Social Media Posts, SUPREME COURT Quashes Section 66A

JAIL WILL NOT BE HELD ON SOCIAL MEDIA POSTS, SUPREME COURT QUASHES SECTION 66A

 Sonali Posted 4 hour(s) ago 

* Social media posts will not be jailed, Section 66A revoked. *
Supreme Court quashed the historic decisions on Section 66A of the Information Technology Act, declaring it unconstitutional.
The Court while delivering a significant judgment said that this section of the IT Act is in violation of Article 19 (1) A of the Constitution, which gives "the right to freedom of speech and expression" to every citizen of India. The court said, Section 66A is a violation of the fundamental right to freedom of expression. *
* After the court order, no post will be arrested on social media mediums like Facebook, Twitter, Linked In, WhatsApp. *

Earlier, under Section 66A, the police had the right to arrest anyone on the basis of what was written on the Internet. Section 66A of the IT Act was challenged in the petitions filed in the Supreme Court.
Petitioner Shreya Singhal termed the verdict a major victory and said, the Supreme Court upheld the right to freedom of speech and expression of the people!

Whether it is Necessary to seek Cancellation of Sale Deed if it was Executed during Pendency of Suit

Saturday, 26 October 2019

Whether it is necessary to seek cancellation of sale deed if it was executed during pendency of suit?

 In our opinion, when the sale deed had been executed during the pendency of suit the purchaser pendente lite is bound by the outcome of the suit. The provisions of Section 52 prevent multiplicity of the proceedings. It was not at all necessary to file a suit for cancellation of the sale deed as the vendor had no authority to sell land of other co-sharers. He had right to alienate his own share only which he had in the property to the extent of 14/104th. As such the right, title and interest of Bala Mallaiah were subject to the pending suit for partition in which a preliminary decree was passed in the year 1970 which had attained finality in which the vendor of Bala Mallaiah, Defendant 1 was found to be having share only to the extent of 14/104th.  { Para 48}

 Therefore, it is settled legal position that the effect of Section 52 is not to render transfer effect during the pendency of a suit by a party to the suit void; but only to render such transfers subservient to the rights of the parties to such suit and the pendente lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor as may be eventually determined by the Court. Therefore, in the present suit defendant No. 2 is bound by the decree which may be passed against defendant No. 1. Admittedly, by virtue of compromise decree in R.A. No. 272/2004 defendant No. 1 is aware that the suit property was allotted to the share of plaintiffs and he had no right title and interest so as to transfer the same in favour of defendant No. 2 by executing registered sale deed dated 02.05.1997 as per Ex. D1. In spite of knowing consequences of the same, defendant No. 1 executed the sale deed during the pendency of suit bearing O.S. No. 45/1994. Therefore, the said sale deed is hit by Section 52 of Transfer Property Act. Though, it cannot be held as void ab initio, as held by the Hon'ble Supreme Court in the judgment referred supra, Pendente lite purchaser defendant No. 2 herein is bound by the decree passed in the suit against his vendor.

IN THE HIGH COURT OF KARNATAKA (KALABURAGI BENCH)

RSA No. 1346/2007

Decided On: 24.04.2019

 Gurushantappa  Vs. Shankar and Ors.

Hon'ble Judges/Coram:

P.G.M. Patil, J.

Citation: AIR 2019 Karnat 113

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Good Legal Article on Lis Pendens ( S 52 of Transfer of Property Act)

Good legal article on Lis pendens( S 52 of Transfer of Property Act)

Lis pendens means that nothing new should be introduced in 

pending litigation.

      Where a suit or proceeding is pending between two persons with respect to immovable property and one of the parties thereto sells,or otherwise transfers subject matter of litigation, then transferee will be bound by result of suit or proceeding,whether or not, he had notice of suit or proceeding .This rule is known as the rule of lis pendens. This rule affects the purchaser not because the pending suit or proceeding amounts to notice but because the law does not allow litigants to give to others pending the litigation any right to property in dispute so as to prejudice the other party.

Thus the rule of lis pendens is based on the necessity for final adjudication: It aims at prevention of multiplicity of suits or proceedings.A transaction entered in to during pendency of a suit can not prejudice the interests of a party to suit who is not party to transaction. The object of the rule is to protect one of the parties to a litigation against act of the other.

     The doctrine of lis pendens can not be availed of by the transferor and it is really intended for the protection of the other party, that is the party in the suit other than the transferor.

Suits decreed exparte also falls within the scope of doctrine of lis pendens ,provided they are not collusive.

       Compromise decree also falls within the scope of doctrine of lis pendens, provided compromise is not result of fraud.

The rule of lis pendens does not apply to a transfer by a person who subsequent to transfer is added as a party to the pending suit. A transfer by a person before he is made a party is not affected by rule of lis pendens.

       It may be noted that the effect of the rule of lis pendens is not to invalidate or avoid the transfer,but to make it subject to the result of the litigation. This provision operates even if the transferee pendente lite had no notice of pending suit or proceeding at the time of transfer.

     Its essentials-In order to constitute a lis pendens, the following six elements must be present:

1.There should be a suit or a proceeding.

2.The suit or proceeding must be one in which a right to immovable property is directly and specifically in question.

3.The suit or proceeding must not be a collusive one .

4.The suit or proceeding must be pending.

5. The property directly and specifically in question in the suit must be transferred during such pendency.

Pending litigation-

The pendency continues from the time the plaint is presented to the proper court till it is finally disposed of, and complete satisfaction or discharge of the decree is either obtained or has become unobtainable.

It may be noted here that pendency of suit must be in competent court in India. The reason behind this rule is that in foreign court, not only the procedure, but even the remedy may be different from that prevailing in India.

Bonafide litigation-

The suit or proceeding must not be collusive.

Right to property must be in dispute-

The right to an immovable property must be directly and specifically in issue in the suit or proceeding.This will happen in a suit for specific performance of contract to transfer immovable property.

Transfer during pendency of litigation only-

For the purpose of this doctrine, the transfer must be made only during pendency of suit or proceeding. Naturally there a transfer before the suit will not be affected by lis pendens.It does not matter that the deed is registered after suit is filed, provided it was executed prior to its institution.

The decree of first court does not always put an end to the litigation.Therefore,even after dismissal of a suit,a purchaser is subject to lis pendens if an appeal is thereafter fled. Thus the rule of lis pendens applies to a transfer made after decree of the court but before filing of an appeal.

 In greater Bombay,however it is necessary to register the notice of lis pendens under S 18 of Indian Registration Act. Otherwise a pendency does not affect any transaction.

Important judgments on Lis pendens

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Appeal cannot be Disposed Of without Trial Court Record - Supreme Court

Appeal cannot be disposed of without Trial Court record: SC

November 20, 2019

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The Supreme Court recently set aside a judgment of Delhi High Court which disposed of a criminal appeal without the record of the trial court before it.

The bench considering an appeal against a Delhi High Court order which upheld the conviction and sentence imposed on a man under Sections 498A and 304 IPC by the trial court without the record of the trial court, which was lost during the pendency of the appeal before it.

One of the issue raised in the appeal was whether the order of High Court disposing of the criminal appeal in the absence of original record can be held sustainable in the eyes of law. In this regard, the bench observed:

The High Court has disposed of the appeal filed by the appellant herein without the record of the trial court, which was lost during the pendency of the appeal before it.

The bench then remanded the matter back to the High Court for hearing of the appeals afresh after reconstruction of the record of the trial court.

Source : Livelaw.com

Whether a Person who Contributed Money in Purchase of the Immovable Property can Retain its Possession

Whether a person who has contributed money in the purchase of the immovable property can retain its possession?

A contributor to the purchase consideration for immovable property, only has rights if any, to recover the said purchase consideration from the purchaser and does not acquire any rights in the immovable property or any right to retain possession thereof. 

IN THE HIGH COURT OF DELHI

CS (OS) 2585/2012

Decided On: 24.01.2013

 K.L. Garg   Vs.  Rajesh Garg and Ors.

Hon'ble Judges/Coram:

Rajiv Sahai Endlaw, J.

Citation: MANU/DE/0321/2013

1. The plaintiff has instituted this suit for recovery of possession of a portion consisting of two bedrooms, common drawing-dining, kitchen and bathroom of flat on the second floor of property No. 21/13, Old Rajinder Nagar, New Delhi and for mesne profits/damages for use and occupation. It is the case of the plaintiff, that he is the owner of the said flat vide registered Sale Deed dated 18th October, 2004 copy whereof is filed along with the plaint; that the defendants no. 1 to 4 are the son, daughter-in-law and grandchildren of the plaintiff; that the plaintiff on account of the said relationship had allowed the defendants to reside with him in the said flat; however the relationship between the plaintiff and the defendants has soured and the plaintiff does not want the defendants to reside in his flat and though called upon the defendants to vacate the same, the defendants failed to do so. Summons of the suit and notice of the application for interim relief to restrain the defendants from parting with the possession of the said flat to any other person were issued though no interim relief granted.

2. The defendants have filed the written statement pleading, that the suit has been filed merely to harass them; that no cause of action has accrued to the plaintiff against the defendants; that the plaintiff has not approached the Court with clean hands and has concocted the story of the defendants ill treating or harassing the plaintiff; that the defendants no. 1 and 2 had contributed to the purchase consideration of the flat and the defendant no. 1 also used to pay the electricity bills of the said flat; that the plaintiff is a habitual litigant and had also lodged a complaint against another son namely Shri Pankaj Garg and with whom he subsequently compromised; that similarly earlier disputes had arisen between the plaintiff and the defendants and which have subsequently been compromised; that the suit is undervalued; that in fact the defendants had started living in the flat only at the instance of the plaintiff and that the defendants are looking after and caring for the plaintiff. The defendants however do not dispute the receipt of legal notice from the plaintiff demanding possession but allege the same to be false.

3. The suit was listed on 14th January, 2013 when finding that the defence of the defendants in the written statement of having contributed to the purchase consideration of the said flat while admitting the Title Deed with respect thereto to be in the name of the plaintiff only did not constitute any defence in law to the claim of the plaintiff for possession, the counsel for the defendants was asked to argue. On his request the matter was adjourned to today.

4. The counsel for the defendants, who states that he is the new counsel though has filed his Vakalatnama, has argued that the plaintiff has not approached the Court with clean hands. He has drawn attention to para 4 of the plaint and contended that the plaintiff has falsely stated that the defendants had harassed the deceased wife of the plaintiff. It is argued that the relationship of the defendants with the deceased wife of the plaintiff, being the mother of the defendant no. 1 and mother-in-law of the defendant no. 2 was very good.

5. It has been enquired from the counsel for the defendants as to whether the said argument even if were to be accepted constitutes a defence to a suit for possession; a decree for suit for possession is not a discretionary one; if the plaintiff is found entitled to possession of a property, relief cannot be denied to him/her merely because he may have on some other aspects not relatable to possession, lied.

6. No reply is forthcoming.

7. This argument, also does not constitute any defence to the claim for possession.

8. Though the defendants have not filed any documents whatsoever, the counsel for the defendants has during the course of hearing handed over photocopy of a letter purported to be written by the plaintiff to the Editor of Veer Arjun Newspaper on 19th December, 2003 withdrawing the earlier advertisement disinheriting the defendants and stating "Shri Rajesh Garg and my grand children has full legal rights for moveable/immoveable property stands in my name i.e. K.L. Garg". A right in the property, on the basis of the said document is claimed.

9. The said document is taken on record.

10. Even though the procedure adopted by the defendants of handing document across the bar is not in consonance with the prescribed procedure but I am afraid even the said document does not show that the defendants have any right to retain possession of the flat aforesaid. All that the said document purports to do is to recall the earlier notice disinheriting the defendants. However, such inheritance can happen only on the demise of the plaintiff and not prior thereto.

11. A contributor to the purchase consideration for immovable property, only has rights if any, to recover the said purchase consideration from the purchaser and does not acquire any rights in the immovable property or any right to retain possession thereof. The only defence thus raised in the written statement is not a material one so as to invite framing of an issue and the plaintiff has become entitled to a decree for possession and mesne profits.

12. The dispute raised in the written statement of under valuation of the suit is a vexatious one, bereft of any particulars. Nothing is stated, as to on the basis of which sale/purchase transaction, the valuation given by the plaintiff is incorrect.

13. Faced with the aforesaid, the counsel for the defendants states that a Memorandum of Understanding (MoU) was entered into between all the family members and the original thereof is in the custody of the plaintiff though a copy thereof is in the custody of the sister of the defendant no. 1 and who is out of station and owing whereto the counsel could not bring the said MoU to the Court today.

14. There is no plea also in the written statement to the said effect.

15. The counsel for the defendants then seeks adjournment by seven days to amend the written statement.

16. The aforesaid request cannot be entertained. Suits cannot be kept pending after they have been heard and to allow parties to amend their pleadings.

17. The suit is thus decreed for possession in favour of the plaintiff and against the defendants no. 1 and 2 for possession of flat aforesaid on the second floor of property No. 21/13, Old Rajinder Nagar, New Delhi. As per Bhagwati Prasad Vs. Chandramaul MANU/SC/0335/1965 : AIR 1966 SC 735 and R.S. Maddanappa Vs. Chandramma MANU/SC/0356/1965 : AIR 1965 SC 1812, a decree for mesne profits follows a decree for possession. However an inquiry under Order 20 Rule 12 has to be held to determine the rate of mesne profits. Considering the nature of the dispute, it is not deemed appropriate at this stage to order such inquiry in as much as the suit has been decreed within six months of institution thereof. Liberty is however given to the plaintiff to apply for such inquiry if the defendants no. 1 and 2 resist the execution of the decree. The plaintiff shall also be entitled to costs equivalent only to court fee of Rs. 25,785/- paid on the plaint. Decree is confined against defendants no. 1 and 2 since the defendants No. 3 and 4 are minors and no steps were taken for appointment of their guardian. The decree sheet be drawn up.

18. The counsel for the defendants at this stage states that he has instructions from the defendants to state that they are willing to give an undertaking to vacate the said flat after the examination of the children (defendants no. 3 and 4) scheduled in March-April, 2013 are over. Liberty is granted to the defendants No. 1 and 2 to file affidavits of undertaking to the said effect and on filing whereof this request shall be considered.

Can Court Recall or Review its Judgment Obtained by Fraud

Can Court Recall/Review it’s Judgment Obtained by Fraud?

February 22, 2019

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February 22, 2019

The statutory provisions pertaining to recalling or reviewing of judgment is contained in Section 362 of Code of Civil Procedure and Section 44 of the Indian Evidence Act, 1872.

The provision under Section 362 of CrPC provides for the Court not to alter judgment. Thus, it puts a bar for altering or reviewing of judgment or final order on merits only. The only power given to the Court is to correct any clerical or arithmetical error.

Though the aforesaid provision puts a bar on altering judgment but the Indian Judiciary has time and again reiterated that Court can vacate any judgment or order, if it is proved to have been obtained by fraud.

Hence, in such cases, the intriguing concern that is raised is that if the fraud is played upon the court whether the hands of the court are tight? Whether court cannot take any action? Whether it remains silent spectator in a matter where an order was obtained by playing a patent fraud upon the court? A person impersonate himself and dare to appear before the court with a false identity whether he can be left open?

In the aforementioned circumstances, Section 44 of the Evidence Act comes to rescue. The provision under section 44 of Evidence Act enables a party otherwise bound by a previous adjudication to show that it was not final or binding because it is vitiated by fraud. The provision therefore gives jurisdiction and authority to a court to consider and decide the question whether a prior adjudication is vitiated by fraud[1].

Judiciary on Recalling of Judgment Obtained by Fraud

In order to have a better understanding of the subject it would be relevant to refer to case laws wherein the Supreme Court and High Courts were confronted with the issue of recalling or reviewing of an order obtained by fraud.

Paranjpe Vs. Kanade[2]– In this one of the earlier judgment of the Court on the subject it was ruled that it is always competent to any Court to vacate any judgment or order, if it be proved that such judgment or order was obtained by manifest fraud.

Lakshmi Charan Saha Vs. Nur Ali[3]–  The Court in the case observed that the jurisdiction of the Court in trying a suit [questioning the earlier decision as being vitiated by fraud] was not limited to an investigation merely as to whether the plaintiff was prevented from placing his case properly at the prior trial by the fraud of the defendant. The Court could and must rip up the whole matter for determining whether there had been fraud in the procurement of the decree.

Proof of Fraud

Manindra Nath Mittra Vs. Hari Mondal[4]– The Court explained the elements to be proved before a plea of a prior decision being vitiated by fraud could be upheld. The Court with respect to the question as to what constitutes fraud for which a decree can be set aside, enumerated two propositions. Firstly, it is not permitted to show that the Court (in the former suit) was mistaken, it may be shown that it was misled, in other words where the Court has been intentionally misled by the fraud of a party, and a fraud has been committed upon the Court with the intention to procure its judgment, it will vitiate its judgment. Secondly, a decree cannot be set aside merely on the ground that it has been procured by perjured evidence.

Esmile Uddin Biswas and Anr. Vs. Shajoran Nessa Bewa & Ors.[5]– In this case it was held that it must be shown that fraud was practised in relation to the proceedings in Court and the decree must be shown to have been procured by practising fraud of some sort upon the Court.

Nemchand Tantia Vs. Kishinchand Chellaram (India) Ltd.[6]– In this case it was held that a decree can be re-opened by a new action when the court passing it had been misled by fraud, but it cannot be reopened when the Court is simply mistaken; when the decree was passed by relying on perjured evidence, it cannot be said that the court was misled.

S.P. Chengalvaraya Naidu (Dead) by LRs. Vs. Jagannath (Dead) by LRs & Ors.[7]– The Supreme Court in the case stated that it is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non-est in the eyes of law. Such a judgment/decree — by the first court or by the highest court — has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.

The Court went on to observe that the High Court in that case was totally in error when it stated that there was no legal duty cast upon the plaintiff to come to the Court with a true case and prove it by true evidence and opined that “The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands.”

Ram Preeti Yadav Vs. U.P. Board of High School and Intermediate Education & Others[8]– The Apex Court reiterated that fraud avoids all judicial acts.

Suppression of a Material Document is Fraud

State of A.P. & Anr. Vs. T. Suryachandra Rao[9]– The Supreme Court in the case held that suppression of a material document could also amount to a fraud on the Court. A similar observation was also made by the Supreme Court in the case of Bhaurao Dagdu Paralkar Vs. State of Maharashtra & Ors.[10], wherein it was noted that suppression of a material document would also amount to a fraud on the court. Although, negligence is not fraud, it can be evidence of fraud.

Hamza Haji vs. State of Kerala and Another[11]– The Supreme Court in the case has held that no court will allow itself to be used as an instrument of fraud, and no court, by the application of rules of evidence or procedure, can allow its eyes to be closed to the fact that it is being used as an instrument of fraud.

Union of India vs. Ramesh Gandhi[12]– In this case it was held that fraud vitiates everything including judicial acts.

S.P. Chengalvaraya Naidu (Dead) By Lrs. Vs. Jagannath (Dead) By Lrs. & Ors.[13]– The Supreme Court in the case observed that fraud-avoids all judicial acts, ecclesiastical or temporal. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and nonest in the eyes of law. Such a judgment/decree – by the first court or by the highest court – has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.

A.V. Papayya Sastry and Ors. Vs. Government of A.P. and Ors.[14]–  The Supreme Court noted in the case that once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non- existent and non-est and cannot be allowed to stand.

From the aforesaid judicial dictum it is abundantly clear that a judgment or decree that has been obtained by playing fraud on the court is null and void. Hence, if the Court is not entrusted with the power to recall a judgment obtained by fraud it would amount to the travesty of truth and justice. 

[1] Paranjpe Vs. Kanade [ILR 6 (1882) BOMBAY 148]

[2] ILR 6 (1882) BOMBAY 148

[3] [ ILR (1911)38 Calcutta 936]

[4] [(1919) 24 Calcutta Weekly Notes 133]

[5] 132 INDIAN CASES 897

[6] (1959)63 Calcutta Weekly Notes 776

[7] (1993) Supp. 3 SCR 422

[8] (2003) Supp. 3 SCR 352

[9] (2005) 6 SCC 149

[10] 2005 (7) SCC 605

[11] (2006) 7 SCC 416

[12] 2012 (1) SCC 476

[13] (1994) 1 SCC 1

[14] AIR 2007 SC 1546