Mortgage - Redemption - Ingredients

 - Mortgage - Redemption... Requirement....!

- Basically mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt , or the performance of an engagement which may give rise to a pecuniary liability.

- Also the transaction shall be mortgage if condition of redemption or re - purchase is embodied in the same document. Even though document titled as conditional sale or right of repurchase shall be exercised within stipulated period , if not exercised within stipulated period it become absolute sale.

- The relationship of debtor and crediror shall be established.

- The intention of the parties to document has to be seen when document is executed.

- If condition of redemption or re - purchase is embodied in different or separate document question of mortgage does not arise even though all other conditions of mortgage are fulfilled.

- Right of redemption of mortgage is to be exercised within 30 yenar . If if document contains some period ( like 2, 5, 10, 20,.... years ) then right of redemption begins after expiry of that period means additional period of redemption will gate to mortgagor.

- Relevant Provision - 

- Section 58(C) of The Transfer of Property Act 1882.

- Article 61 of The Limitation Act 1963.

== Relevant Latest Judgement===

- Bhimrao Ramchandra Kalate v/s Nana Dinkar Yadav 2021 SAR 924 ... Decided on 13 August 202 in numbers of S.C. judgements are referred.

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Suit Stamp Duty - Ready-Reckoner Rate

Suit - Valuation - Ready Reckoner- Suit Stamp Duty.....

                                  

                                    

- Basically Suit Valuation Act 1887 & Maharashtra (Bombay) Court Fee Act 1959 be peruse for suit valuation and suit stamp duty for every type of suit.

- For calculating market value of suit property property the procedure is provided in the Maharashtra Court Fee  Act if dispute arise before court in the suit.

- Market value for the Indian Stamp Act 1899 or Maharashtra (Bombay) Stamp Act 1958 determined as Ready Reckoner for purpose of assessment of stamp duty for Registration of instrument .

- Ready Reckoner value of Property is not the same as suit valuation for the purpose of Jurisdiction & Court-Fee in suit before court.

- Suit Valuation Act & Stamp Act operate in different fields but many people confuses while calculating Suit Valuation & Court Fee .

= Relevant Law==

- Indian Stamp Act 1899.

- Suit Valuation Act 1887.

- Maharashtra (Bombay) Court Fee Act 1959.

==Relevant Judgement=

- Add.Distt.Sub-Registrar Siliguri v/s Pawan Kumar Verma & Ors 2013 SAR 569=A.I.R 2013 S.C.1886.

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Pre emption - Mohammedan Law

Pre-Emption right under Mohammedan Law.....

                             

- The right of pre-emption is customary under Mohammed Law.

- It is a right to acquire by compulsory purchase of property.

- Basic concept is to obviate in convenience or disturbances which would arise by conjunction of stranger.

- Also to preserve the integrity of the village and community, to avoid fragmentation, to reduce chances of litigation is concept of eight of pre emotion.

- Right of pre - emotion arises only in case of sale.

- It's not applicable to leased, gift, waqf, inheritance, bequest property.

- It be claimed by co - sharer in the property sold.

- It be claimed by person who is participating in the immunities and appendages in the property, such as a right of way or discharge of water.

- It be claimed by the adjoining owner of immovable property.

== Relevant Provision =

- Provision of Pre - Emption under Mohammedan Law.

== Relevant Judgement =

- Raghunath v/s Radha Mohan 2021 SAR 26.

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Questions of Limitation & O.7.R.11

Limitation & Order 7 Rule 11 of C.P.C.

                                  

- Basically averments in the plaint are to be looked into while deciding an application.

- Also question of limitation is a triable issue and it can be decided only after taking evidence.

- Issue  of limitation for filing of suit being a mixed question of facts and law .

- So issue of limitation can not be decided under order 7 rule 10 of C.P.C. and plaint cannot be be rejected under it.

- Plaint could be rejected under above order on the basis of averments in the plaint . The pleas defence taken by the defendant in written statement would be wholly irrelevant .

= Relevant Provision = =

- Order 7 Rule 11 of C.P.C.

= = Relevant Judgement =

- Chotaben and another v/s Kirtibhai J. Thakkar 2018 SAR 587= 2019(2) M.L.J.17

- Urvashiben & And v/s Krishnakant M. Trivedi 2019 SAR 241.

- M/S Shakti Bhog Food Industries Ltd v/s The Central Bank of India & And 2020 SAR 924.

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Counter-Claim against Co-Defendant.....?

Counter - Claim against Co - defendant....!

                                 

- Basically counter claim may be filed against plaintiff if any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired.

- Counter claim may be filed in respect of any relief.

- It be filed along with written statement or after filing of it with permission of court.

- It be filed against plaintiff but in which relief can be claimed against co defendant along with plaintiff.

- Counter claim solely against co defendant is not maintainable in the eyes of law.

== Relevant Provision ==

-Order 8 Rule 6A of C.P.C.

= Relevant Judgement =

- Rohit Singh & Ors v/s State of Bihar A.I.R.2007 S.C.10= 2006 SAR 85.

- Communidade of Pirla v/s Government of Goa 2010(6) M.L.J.433.

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Arbitration - Award - interim measures....

Arbitration - Award - Interim measures........... !

                             

       

                                  

- For arbitration basically clause of arbitration required in the agreement between the parties.

- Arbitration agreement means patties to agreement to submit all or certain disputes between them to arbitration.

- Arbitration agreement shall be in writing , signed by parties.

- An exchange of letter , telex , telegram , telecommunication , statements , claim defence in which existence of agreement alleged by one party and not denied by other is an arbitration agreement.

- Civil court have no jurisdiction in respect of arbitration agreement but refer dispute to arbitration.

- A party to arbitration agreement may before or during arbitral proceeding or at any time after the making of the arbitral award but before it's enforcement according to section 36 may apply to a court for interim measures like appointment of guardian , preservation , interim custody ,  sale  of subject matter , securing amount, detention, preservation, inspection of subject matter, interim injunction , appointment of receiver, other interim measure of protection which are just , convenient.

- The parties to arbitration agreement may appoint arbitrator as per agreement.

- If parties to agreement fails to appoint arbitrator as per agreement then chief justice of India , different high courts , designated judges of high or supreme court have jurisdiction to appoint arbitrator.

- Arbitration award may challenged by filing application for setting aside before district court within 3 months.

- But after above 3 months within further 30 days application for setting aside award may be entertained if sufficient cause is shown but not thereafter.

= Relevant Provision = =

- Section 1 to 36 of The Arbitration and Conciliation Act 1996.

=== Relevant Judgement =

-Dakshin Haryana Bijili Vitran Nigam Ltd. v/s M/S Navigant Technologies Pvt. Ltd. 2021 SAR 369.

- Greaves Cotton Ltd v. United Machinery and appliance 2017 SAR 183.

- Mrs Hema v. Shiv Khera 2017 SAR 627.

- Suresh Dhanuka v. Sunita Mohapatra 2012 SAR 119.

- Yograj Infras v. SSAMG Yong Eng & Construction Co. Ltd 2012 SAR 200.

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Amendment - Judgements/Decrees/Orders - Limitation

- Amendment - Judgements, Decrees, Orders.. 

                                 

- The court either of its own motion or on the the application of any parties may amend clerical or arithmetical mistake in judgements , decrees or orders or errors arising therein from any accidental slip or omission at any time be corrected.

- Above power of amendment or rectification or correction may be exercise at any time by court.

- But the court may exercise above power within reasonable time.

- The above power of court may be exercised in respect of compromise decree also.

- The court has no power to correct omission which goes to merit of the case.

- The court has no power to modify or set aside any judgement, decree or order as per above provision.

- In fact the period of limitation is not prescribed in C.P.C. for amendment of judgements, decrees or orders by court as per above power.

= = Relevant Provision ===

- Section 152 of C.P.C.

- section 29 of The Limitation Act 1963.

== Relevant Judgement ==

-State  or Maharashtra v/s Shyamkant Dattatraya Patil 2006(3) M.L.J.577.

Jaylaxmi Narayan v/s Oswald Coelho and another A.I.R 2001 S.C.1084=2001(3) M.L.J.498.

- Latabai N.Telang v/s Suresh N.Telang 2006(1) M.L.J.440.

- Peethai Suryanarayana v/s Repaka V. R.Kishore A.I.R.2009 S.C.2141.

- Srihari v/s Sayed Maqdoom Shah 2015(3) M.L.J.582(S.C.).

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Civil M.A. - procedure/provision applicability

 - Civil Miscellaneous Application - - - - - Procedure - Applicability of Provision

                                     

                          

- Basically if we peruse all Orders of The Code Of Civil Procedure 1908 we find that those are provided for suit or applicable to the suit.

- For example if we peruse Order 1,2, 4 , 9, 10, 11, 13, 14,16, 23, 26 to 34, 38, 39, 40 of The Code Of Civil Procedure 1908 those shows that all are applicable to suit.

- In fact the procedure provided in the The Civil Procedure Code 1908 in regard to suit shall be followed, as per as it can be made applicable, in all proceedings in any Court of civil jurisdiction.

- So in Civil Miscellaneous (Civil M.A.) party to it may  claim relief like Temporary Injunction, Court Commission, Amendment, etc which may be claimed in Civil Suit.

- In fact civil court have same jurisdiction in respect of civil miscellaneous proceeding like civil suit.

= = Relevant Provision = ==

- Section 141 of The Code Of Civil Procedure 1908.

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Continues Limitation to Suit

- Continues - Limitation - To Suit.......?

                                     

- Basically ever suit shall be filed within limitation as provided in law.

- But in the some cases  of Continuing Breach of Contract or in the case of a Continuing Tort , a fresh period of Limitation Begins to Run at every moment of the time during which the Beach or the Tort , as the case may be Continues.

- For example  suit in respect of Encroachment on Public Street - cause of action continues as long as such wrong and injury continues.

- Suit for eviction of Trespasser in such suit trespass continues so long as until title of the owner hostile.

- In suit of breach of contract non performance of obligation by party to contract can not be said to be continuing Breach.

== Relevant Provision==

- Section 22 of The Limitation Act 1963.

= Relevant Judgement==

- Vinay Ambadas Kaikini v/s Court Receiver , High Court of Judicature At Bombay 2010(6) M.L.J.407.

- Hari Ram v/s Jyoti Prasad AI.R. 2011 S.C.952 = 2011(2) ALL.M.R.457(S.C.).

- Anna Parisa Chougule v/s Sulochana Nabhiraj Chougule 2017(6)M.L.J.693. = 2017(5) ALL.M.R.525.

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Third - Party- Application.....

....  Third Party Application.......!

                                    

- Basically third party application by necessary or proper party is maintainable in any proceeding.

- The court can at any stage of the proceeding either on the application made by the parties or otherwise direct impleadment of any person as party who ought to have been joined as plaintiff or defendant or whose presence is necessary for effective and complete adjudication of the issues involved in the suit.

- A necessary party is the person who ought to be joined as party to the suit and in whose absence an effective decree cannot be passed by the court.

- A proper party is a person whose presence would enable the court to completely effective and properly adjudicate upon all matters and issues though he may not be a person in favour or against whom a decree is to be made.

- If a person is not found to be a proper or necessary party the court does not have jurisdiction to order his impleadment against the wishes of the plaintiff.

=== Relevant Provision ==

- Order 1 Rule 10 of C.P.C.

____ Relevant Judgement ____

- Shri V.J.Thomas v/s Shri Pathrose Abraham & Ora A.I.R 2008 S.C.1503.

- Kasturi v/s Iyyamperumal and Ors A.I.R.2005 S.C.2813.

- Vidur Impex and Traders Pvt. Ltd. V/s Tosh Apartments Pvt. Ltd. A.I.R.2012 S.C.2925.

- Richard Lee v/s Girish Soni and Anr A.I.R.2017 S.C.921.

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Transposition - Defendant as Plaintiff

... Transposition..... Civil - Suit 

                               

         

- In civil suit defendant may apply application for transposition of him as Plaintiff. 

                                   

- Basically where a suit is withdrawn or abandoned by a plaintiff and a defendant applies to be transposed as a plaintiff,  the court shall in considering such application a substantial question to be decided as against any of other defendants. 

- Provision of transposition is made only to avoid another suit. 

- Transposition facility is given basically to a pro forma defendant who has identical interest with plaintiff. 

= = Relevant Provision = = =

- Order 23 Rule 1A of Civil Procedure Code 1908.

- -  - Relevant Judgement  - - - -

- K. K. Modi v/s K. N. Modi and Ors. etc. 1998 SAR 254 = 1998(3) SCC 573.

- kashibai Waman Patil v/s Taukir Ahmed Mohamed Hanif Khan 2015(6) All. M.R.340 = 2015(3) Bom. C. R. 466.

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Witness Examination Before Hearing

- Examination of Witness before Hearing and Party appear as Witness after other witness....

                         

                                  

- Basically evidence of witness or party may be recorded after framing of issues.

- But if party to suit ( plaintiff or defendant ) shows sufficient cause or a witness is about to leave the jurisdiction of the court, the court may upon the application of any party allow to record evidence of witness at any time after institution of the Suit.

- - - - Also basically party to suit himself appear as witness before other witness on his behalf.

- But with permission of the court party may appear as witness after other witness on his behalf.

------ Relevant Provision ---------

- Order 18 Rule 16 & Rule 3A of C.P.C.

= = Relevant Judgement = ==

- Vijaysingh Godhandas v/s Dwarkadas Mulji 2001(4)M.L.J.735.

- Humberto v/s Floriano 2000(1) M.LJ.690.

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... Caveat

....................... CAVEAT.....................

                                      

- Caveat is a caution or warning given by a person to the court that the court should not pass any   ex-parte order  before giving prior notice or without hearing the person who can be called caveator.

- When a caveat has been lodged, the person by whom the caveat has been lodged shall serve a notice of the caveat by Registered Post,

- Where a caveat has been lodged any interim application is filed in any suit or proceeding the court shall serve a notice of application on caveator.

- A caveat shall remain in force till 90 days from the date on which it was lodged..

- Every caveat shall be signed by the caveator or his advocate and shall be in the From prescribed.

- Where caveator is represented by an Advocate his vakalatnama shall accompany the Caveat.

- If anAdvocate instructed by party may file caveat without vakalatnama and give undertaking to file vakalatnama within a week in prescribed form duly signed by the party.

- A notice U/S 148A of C.P.C.(i.e.notice of interim application ) may be served on the Caveator or His Advocate personally or by post.The notice send by post at the address furnished by caveator shall be deemed to sufficient service on him.

- Where it appears to the court that object of granting Ad - Interim relief on the application would be defeated by delay, it may record reasons for such opinion and grant Ad - Interim relief on the application of applicant till further order after giving the Caveator an opportunity of being heard.

= = Relevant Provision = = =

- Section 148A and Order 40A (XL-A) i.e.Bombay High Court Amendment of C.P.C.

= Relevant Judgement = =

- Mahadev Govind Gharge v/s Special Land Acquisition Officer A.I.R.2011 S.C.2439 = 2011(5) M.L.J.(S.C.)532  = 2011(4) All.M.R.858(S.C.)

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Absence of Pleading of Limitation - Effect

- Absence of Pleading of Limitation...... Effect....!

                                  

- Limitation of suits , appeals and applications are provided in The Limitation Act 1963.

- Basically every suit instituted , appeal preferred , and application be made within prescribed period.

- If any suit , appeal , application is filed after prescribed period shall be dismissed ALTHOUGH LIMITATION has not been set up as a DEFENCE .

- Question of Limitation involves a question of very root of the court's jurisdiction of the court .

 

- Point of limitation though not raised before lower court it can raised in appeal or EVEN in Court of Last RESORT.

- Question of limitation is a mandate for Court , Forum irrespective of fact whether it is raised or not as defence in Pleading.

= = Relevant Provision = =

- Section 3 to 24 of The Limitation Act 1963 .

= Relevant Judgement = = =

- Kamlesh Babu & Ors v/s Lajpat Rai Sharma & Ors A.I.R.2008 S.C.(Supp) 1931 = 2008 SAR 542.

- Foreshore Co-operative Housing Society Ltd v/s Praveen D. Desai (D) through LRS and others A.I.R.2015 S.C.2006 = 2015 SAR 789.

- State of Gujarat v/s Kothari and Associates 2016 All.SCR 857 .

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Court Fee Stamp.. Use , Refund

- Court Fee - Stamp - Use , Refund....!

                                 

- Court fee stamp is levied to as for collection of tax for government.

- Court fee stamp is paid in various civil , criminal , revenue, arbitration , tax , trust , etc judicial as well as quasi judicial proceeding.

- Basically no period of limitation is fixed or provided for using it.

- Means court fee stamp may be used at any time after purchase of it.

 

- Refund of court fee stamp in certain circumstances is provided in section 43 of Maharashtra Court Fees Act 1959.

- In case suit is Remand in appeal , Review of Judgement , Reverse or modification of firmer decision on ground of mistake Court shall refund Court fee stamp wholly by way of Refund Certificate.

- Refund certificate granted by court shall be encashed within 2 year from the date of issue of the certificate by court.

- If the suit is settled in any mode under section 89 of C.P.C. ( also in Lok Adalat ) the plaintiff shall be entitled refund of whole court fee by way of refund certificate.

- But General Stamp ( i.e. other than court fee ) shall be used within 6 month from the date of purchase.

 = = Relevant Provision = = =

-Section 15, 16 , 16A ,17 , 17 A , 43 0f Maharashtra Court Fee Act 1959.

- Section 21 of The Legal Services Authorities Act 1987.

- 89 of Code of Civil Procedure 1908.

- Section 52B of Maharashtra Stamp Act 1958.

- - - - - Relevant Judgement  - - 

- Vilas Rambhau Nakade v/s Civil Judge , Senior Division , Nagpur and others. 2006(3) M.L.J.146.

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Exhibition of Document in Civil Suit...?

- Exhibition of Document....... !

                                       

     

- Exhibition of document is for is for purpose of the identification .

- Exhibition of document is an administrative work of the court.

- Mere exhibition of document would not amount to proof of contents of document.

- Mere marking of exhibit on a document does not dispense with its proof.

- Mere exhibition of document is not sufficient to read it in evidence unless document is admissible in evidence.

- Document exhibited  be endorsed following particulars the number and title of the suit , the name of the person producing the document , the date on which it was produced , a statement of its having been so admitted and the endorsement shall or initialled by the judge.

- Non exhibiting a document does not mean that the document is not proved.

= = Relevant Provision = = =

- Order 13 of C.P.C.1908.

- Chapter 5 of The Indian Evidence Act 1872.

- Para 524 of Civil Manual.

- - Relevant Judgement - - - 

- Bana Kathari Patil v/s Rohidas Arjun Madhavi 2004(2) All.M.R.290 = 2004(2) M.L.J.752.

- Saifuddin Vazir v/s Hajabai Patel A.I.R. 2003 Bombay 36.

- Sunil T. Bhardkar v/s Santosh G. Rane 2006(3)M.L.J.811.

- Rekha Bahujan v/s Shubhada bai  Keshavrao Bunage 2012 (3) M.L.J.249.

- Hemendra R. Ghia v/s Subodh Mody 2008(6) M.L.J.886.

- Abdul Rahun Majid v/s Sheikh Rashid 2010(1) M.L.J.343.

- L.I.C. of India & Anr v/s Ram Pal Singh Bisen 2010 SAR 293.

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Secondary Evidence...... !

- Secondary Evidence ....... Requirements

                                 

- Basically secondary evidence relating to documents may be given subject to fulfilment of  following condition required by Evidence Act with the permission of court.

- If the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved.

 - If original document is not produced after the notice mentioned in Section 66 of Evidence Act served.

- When the existence , condition or contents of the original have been provided to be admitted in writing by the person against whom it is proved or by his representative in interest.

- When original has been destroyed or lost or when the party offering evidence of its contents cannot , for any other reason not arising from his own default or neglect , produce it in reasonable time.

- When original is of such nature as not to be easily movable.

- When original is a public document.

- When original is document of which a certified copy is permitted by Evidence Act or by any other law in force in India to be given in evidence.

- When original consists of numerous accounts or other documents which cannot conveniently be examined in court .

= = Relevant Provision = = = 

- Section 65/66/74 of The Indian Evidence Act 1872.

_ _ _ _  Relevant Judgement _ _ _ 

-Jagmail Sing & Anr v/s Karamjit Singh & Ors 2021 SAR 86.

- Kashibai Jadhav v/s Yamunabai Jadhav 2017(7) All.M.R.525.

- Rakes Mahindra v/s Anita Beti 2016 All SCR 1.

- H.Siddiqui v/s A.Ramalingam A.I.R.2011 S.C.1492 = 2011(4)M.L.J.(S.C.) 88.

- U.Sree v/s U.Srinivas A.I.R.2013 S.C.2013= 2013 SAR 175.

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Ancestral Property - Mitakshara Law

Ancestral Property.........mitakshara law....!

                                  

- Basically property inherited from parental ancestor is ancestral property.

- All property inherited by a male Hindu from his father, father's father or father's father's father, is ancestral property.

- Essential feature of ancestral property to Mitakshara law is that the son, grandson and great grandsons of person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth.

- Share allotted on partition of ancestral property is ancestral property as regards to his male issue.(prior to amendment of 2005 in Hindu Succession Act 1956)

- But property inherited from maternal grandfather is not ancestral property.

- Property inherited from females is not ancestral property.

- Also property inherited from collaterals such as a brother, uncle, etc or from a female like mother is not ancestral property.

- Property acquired by adverse possession by father is not ancestral property.

= = Relevant Provision = = =

- Uncodified Hindu Law para on Ancestral Property.

- - - Relevant Judgement - - - -

.. Shyam Narayan Prasad v/s Krishna Prasad and Ors 2018 SAR 895.

...Arshnoor Singh v/s Harpal Kaur & Ors 2019 SAR 809.

... Valliammai Achi v/s Nagappa Chettiar A.I.R.1967 S.C.1153.

... Janarethbee v/s Pralhad A.I.R.1978 Bom 229.

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Firm Of 2 partner Dissolution

-Partnership .... Firm  of  2 partners  ....Dissolution  

                              

- Basically partnership  firm must have at least 2 partners. 

- If partnership firm have only 2 partners and 1 has  agreed to retire,  then the retirement amounts to dissolution of the firm. 

- Retirement of a partner and dissolution of a partnership firm are different to each other. 

- In retirement reconstituted firm and retiring partner is to be paid his dues.

- In dissolution accounts have to be settled and distributed as per the mode. 

= = Relevant Provision = =

- Partnership Act 1932

- - - Relevant Judgement - -  - -

- Guru  Nanak Industries,  Faridabad  and Anr v/s Amar Singh (Dead) Thr. Lrs. 2021 SAR 183.

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Trust Property - Suits

- Suit by or against - Trustees , Executors  & Administrators....

                                    

 Property Suits

- Basically suits concerning property of trust shall be filled by all trustee.

- Basically suits of trust property all trustee shall be joined as either plaintiff or defendant.

- Also as per provision of Maharashtra (Bombay) Public Trusts Act 1950 in some suit of trust property permission of Charity Commissioner is required for filing suit.

- But suit against trespassor above permission is not required.

- Also suit against third person for injunction in respect of trust property above permission is not required.

= = Relevant Provision = = =

- Order 31 of C.P.C.

- Section 50 & 51 of Maharashtra Public Trust Act 1950.

- - - Relevant Judgement - - 

- Nagar Wachan Mandir v/s M/s Akbarali Abdul Hussain & Sons 1993 Bom. C.J.810 = 1994 (1) M.L.J.280.

- Shri Cutchi Visa Oswal Derawasi Jain Pathshala v/s Shri Cutchi Visha Oswal Derawashi Jain Mahajan 2005(1) All.M.R.484 = 2005(1) Bom.C.R.105.

- Gafoor Ali Hussain v/s Ram Mahadik 2000(1) M.L.J.436.

- Pandurang S.Patil v/s Nanded Parsi Anjuman Trust 2011(1) M.L.J.524 = 2010(6) All.M.R.557.

- Yamunabai Dhankude v/s Shri Raosaheb Mohanlal Chinmanlal Maniyar Trust 2012(2)M.L.J.55 = 2012(1) All.M.R.622.

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Civil Suit Power of Attorney.....

Power of Attorney  - - - - - Civil Suit........!

                                      

- Power of attorney means any instruments empowering a specified person to act and in the name of the person executing it.

- The donee of power of attorney execute any instrument by the authority of the donor of the power.

- Every instrument executed by donee binds on the donor of power of attorney.

- Power of attorney holder can appear , apply and act in any court on behalf of donor but he cannot depose in the witness box in the places of donor in respect of matter which the donor have personal knowledge.

- But power of attorney may depose in respect of which he have personal knowledge of act of donor.

- Compromise , agreement entered by power of attorney is bonding on the donor of power of attorney.

= = = Relevant Provision = =

- The Power Of Attorney Act 1882.

- Order 3 of C.P.C.

= = Relevant Judgement = =

-Janaki Vashdeo Bhojwani and Anr v/s Indusind Bank Ltd and Ors A.I.R.2005 S.C.439.

- Man Kaur (Dead) by Lrs v/s Hartar Singh Sangha 2010 SAR 966 = 2010 AIR SCW 6198.

 

- S. Kesari Hanuman Goud v/s Anjum Jehan and Ors 2013 AIR SCW 3561 = 2013 SAR 504.

- Y. Sleebachen etc v/s Superintendent Engineering WRO/PWD & Anr 2014 AIR SCW 4898 = 2014 SAR  909.

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Transferee - Specific Performance Suit

Transferee & Suit for Specific Performance...........

                                   

- In suit for specific performance of agreement to sell transferee is necessary party to suit.

- Even though a transferee to whom the subject matter of a agreement of sale or part thereof is transferred is a necessary party to suit for specific performance.

- Such transferee must be impleaded in suit before the suit becomes time barred against him.

 = = Relevant Provision = = = 

- Section 19 of The Specific Relief Act 1963.

- Order 1 Rule 10 of C.P.C.

- Article 54 of The Limitation Act 1963.

- - - Relevant Judgement - - - -

- B. Santoshamma & Anr v/s D. Sarala & Anr 2020 S.A.R.1131.

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Tender Bidders ... Rights

Tender.............. Bidders .......... Right.......!

                                    

- Basically qualified bidder may take part in the tender.

- Bidder cannot insist that their tenders should be accepted simply because a given tender is highest or lowest depending upon contract.

- The authority publishing the tender is bound to adhere to the essential terms , norms , standards and procedures laid down by it and cannot depart or deviate from the arbitrarily much less giving relaxation.

- The authority is also free to grant any relaxation for bona fide and cogent reasons.

- The court can not generally review decision of tender .

- But the court may review decision of tender if decision maker acted improperly , for benefit of any particular renders or class of tenders.

- - - Relevant Provision - -

- Section 3 to 9 [i.e.Chapter 1 ] of The Indian Contract Act 1872.

= = = Relevant Judgement = = 

- Jalgaon Golden Transport Pvt.Ltd. v/s Union of India and Others 2020(6) Mh.L.J.532.

 - In which 18 judgements are referred most of referred judgements are of Supreme Court

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Document Referred in Cross Examination...?

Document Referred in Cross Examination...... Exhibit.......Proof of Contents....!

                                     

                  

- Basically mere referring of document during cross examination does not mean it is admitted to the party referred it in cross examination.

- Even though it is not a law that document referred in cross examination shall be exhibited by court.

- But in many States it is a consistent practice followed by court that when a document is referred in cross examination to witness , it be exhibit.

- The above practice is for convenience and for purpose of locating , identifying the document referred in cross examination.

- In such case mere marking a document as exhibit by such process does not dispense with the requirement of proof of the execution , contents , genuineness of the document in accordance with the law of evidence.

- Also it's settled position of law that mere exhibition of document doesn't dispense with proof it's contents.

-Mere a fact has not been disputed in cross examination does mean it's an admitted fact.

= Relevant Provision =====

- Chapter IV and V of The Indian Evidence Act 1872.

_ _ _ Relevant Judgement _ _ _ _ 

- Geeta Marine Services Pvt. Ltd. and another v/s State and another 2009(2) Mh.L.J.410.

- Abdul Rahim Majid v/s Shaikh Q. Rashid 2010 (1) Mh.L.J.343.

- Usha Shrikant Rege v/s Gauri Gajanan Rege 2014 (6) Mh.L.J.781.

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Defendant Died Prior to Suit - Remedy

- Defendant Died - Prior to filing of - Suit......... Remedy..................?

                                      

- Basically in case of death of one of several defendants or of sole defendant after filing of suit procedure / provision of taking legal heir/representative is provided in C.P.C.

- But if in case of death of defendant/defendants prior to filing of suit no provision is provided in C.P.C.

- In the case of death of defendant prior to filing of suit plaintiff may file an application for Impleadment of legal representative of deceased defendant as they are necessary party in order to enable court to effective and completely adjudication , settle all the questions involved in the suit.

-In such above case even application for taking legal heir on record is rejected is no bar to file application for impleadment of legal representative of defendant expired prior to filing suit.

- In such case court to take into consideration bona fide mistake , necessity of party .

- Above application may be filled at any stage of the suit.

- Basically it's not required to mention provisions in the application as per Law. But it's well settled that a mere wrong mention of the provision in the application would not prohibit a party to the litigation from getting justice.

= = Relevant Provision = = =

- Order 22 Rule 4 of C.P.C.

- Order 1 Rule 10 of C.P.C.

_ _ _ Relevant Judgement _ _ 

- Pankajbhai Rameshbhai Zalavadiya v/s Jethabhai Kalabhai Zalavadiya (Deceased) Through LRS  & Ors 2018 SAR 1. 

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Decree of Permanent Injunction - Execution........?

... Permanent Injunction Decree and it's execution against legal representative , transfree of Judgement Debtor.......? 

                                     

- Basically decree be executed as per mode provided in order 21 rule 30 to 36 of C.P.C.1908 against judgement debtor , legal representative , transfree of judgement debtor.

- But like maxim " action personalis moritur cum persona " in certain cases  personal action dies with the person has limited application like as actions for damages , assault or other personal injury not causing the death of the party.

- Normally a decree for injunction normally does not run with the land.

- Injunction decree relating to property or right which is heritable and partible may be executed against legal heir of judgement debtor , transfree of judgement debtor.

- Decree for injunction can be executed at any time till it's satisfaction , means it have no limitation.

- In enforcement of injunction decree a judgement debtor can be either be put in civil prison or his property can be attached or both .

= = = Relevant Provision = =

- Section 50 , 146 , Order 21 Rule 16 , 32 , of C.P.C.1908.

- Article 136 of The Limitation Act 1963.

_ _ _ Relevant Judgement _ _ _ _

- Prabhakara Adiga v/s Gowri & Ors  A.I.R.2017 S.C.1061 = 2017 SAR 405.

- Yashodabai G. Naik Gaunekar v/s Gopi M. Naik A.I.R. 2003 Bom 77 = 2002(3) Mh.L.J.801.

- Mohd.Osman s/o Pir Sab v/s Devid (Dr) s/o P.D.F. Sundersingh 2011(3) Mh.L.J.227.

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Mutual Consent Petition & Withdraw of Consent....... Effect

... Divorce petition by mutual consent..... Withdraw of consent by by spouse ..... Effect..... ?

                                 

        

- Consent petition for divorce by parties to marriage  may be filled on ground that they have been living separately for a period of 1 year or more and they have mutually agreed that the marriage should be dissolved.

 

- From the date of filling of petition within 18 months the court may pass decree of divorce but not later 18 months.

- Basically consent of both spouse is required till passing of decree by court.

- But no spouse can unilaterally , willfully be allowed to withdraw consent even on the grounds such as fraud , undue force , representation unless grounds are provided satisfactorily.

- If one party of mutual consent petition acted as per terms and condition of settlement, consent terms then other party is not liberty to withdraw consent without reasonable, sufficient ground, reason.

- In such case rule of estoppel is applied for equity , fairness and aid the administration of justice.

= = Relevant Provision = = =

- Section 13(B) of Hindu Marriage Act 1955.

_ _ _ Relevant Judgement _ _ _ _

- Rakesh P. Sainani v/s Mrs. Bhavna R. Sainani 2008(6) Mh.L.J.853.

- Anil Kumar Jain v/s Maya Jain A.I.R.2010 S.C.229=2009 SAR 942.

- Prakash A. Kalandari v/s Janhavi P. Kalandari 2011(4) Mh.L.J.187.

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