Whether person in possession of immovable property can be declared as owner of it?

The decision in Abdul Latif and Ors. V. Nagar Vikas Pranyas, Udaipur (Supra) case is also helpful to the appellants. When the plaintiffs had shown their longstanding possession, defendants failed to prove the title as well as had not come with a case that plaintiffs are trespassers or encroachers; under such circumstance merely because name of one Shrirang was shown as 'Pattedar', will not confer a title in him. The maxim "possession follows title" ought to have been invoked by virtue of Section 110 of Evidence Act by both the Courts below. Another fact is also required to be considered is that, ownership of a land cannot remain in abeyance. Here a third party is not coming forward to claim ownership. If both the parties to the proceeding are held to be 'not the owners', then such situation leads to a chaos which is not expected and especially to avoid such situation provisions like Section 110 of Evidence Act have been enacted. Therefore, the substantial question of law is answered in the affirmative. In consequence the second appeal succeeds.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 924 of 2005

Decided On: 26.04.2019

 Dhondiba  Vs.  Maruti and Ors.

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation: 2019(6) MHLJ 254

1. Present appeal has been filed by the legal heirs of original plaintiff No. 1. Plaintiff had filed Regular Civil Suit No. 230 of 1982 before Civil Judge, Junior Division, Beed for declaration of ownership and permanent injunction.

2. The plaintiff along with original defendant No. 2, who was later on deleted by order dated 22-08-1989, had come with a case that, they are the owners of portion of land Survey No. 16/E/5 and Survey No. 22/E/6 admeasuring 12 Acres 12 Gunthas and 10.06 Gunthas respectively situated at village Karchundi Tq. Dist. Beed. It is stated that, they are the joint owners and possessors of the suit land shown in the map appended to the land in Red colour. It was their ancestral property. They are in actual possession and cultivation of the same since their forefathers. Their names have been recorded in the revenue record. Defendants No. 1 and 2 are the real brothers inter se. They have no right, title and interest over the suit lands. However, in collusion with each other, they are interested in denying the ownership of the plaintiffs as well as disturbing the possession of the plaintiffs over the suit land. By way of amendment, defendant No. 3 was added to the suit and it was pleaded that, defendant No. 3 has no right, title or interest over the suit land. He ascertained his title and possession over the suit land on 22-07-1988, and therefore, cause of action arose against him also. Plaintiffs therefore prayed for declaration and perpetual injunction.

3. Defendants No. 1 and 2 have filed written statement at Exhibit 23; whereas defendant No. 3 has filed written statement at Exhibit 80. They all have denied the contents of the plaint. It has been stated that the description of the suit property is wrong. Plaintiffs are not in possession of the suit land as shown in the map appended to the plaint. It is stated that, the names of the plaintiffs are entered in the 7/12 extract but they are not in actual possession. It is stated that, plaintiffs are in possession to the extent of 1/4th share in both the suit properties. One Harinarayan was the original owner of Survey No. 16 and 22. After his death, his two sons Bhujanga and Lahanu became owners. Bhujanga was survived by his sons Shrirang and Hari. Lahanu had two sons, they are defendants No. 1 and 2. It is stated that, Bhujanga had given 1/4th share from both the survey numbers to one Babaji Kengre. After death of Babaji Kengre, the said share was given to the father of the plaintiffs for cultivation. It is stated that, plaintiff No. 2 and his sons went to the land of the defendants which is in their possession and tried to take possession on 11-06-1982. It is stated that, defendants No. 1 and 2 together have half share in Survey No. 16 and 22, whereas defendant No. 3 is having rest of the half share. On these grounds they prayed for dismissal of the suit.

4. Parties have led oral as well as documentary evidence. After hearing both sides and taking into consideration the evidence on record, the learned trial Court has held that, plaintiffs have failed to prove their ownership over the suit land, however they are in possession of the property to the extent that is shown in the map with Red colour, and therefore, it was held that the plaintiffs are entitled to get injunction as prayed.

5. Being aggrieved by the Judgment and decree, both the parties i.e. plaintiffs as well as defendants filed Regular Civil Appeal No. 05 of 1993 and Regular Civil Appeal No. 270 of 1992 respectively before District Court, Beed. Both the appeals were heard by learned District Judge, Beed. Both the appeals came to be dismissed on 27-11-2003. Hence, now the legal representatives of original plaintiff No. 1 have filed present second appeal to the extent of the refusal of the decree by the learned trial Court as well as First Appellate Court. It will not be out of place to mention here that, original defendants have not filed any appeal challenging the Judgment and decree passed by the learned District Judge, Beed, therefore the scope of this appeal is very much limited.

6. The Second Appeal was admitted by order dated 28-04-2009 by this Court on following substantial question of law;

"Whether the trial Court and the First Appellate Court committed error in refusing declaration of ownership to the plaintiffs even though long standing possession as owner is proved through revenue record?"

7. Heard learned Advocate Mr. V.D. Sapkal for appellants and learned Advocate Mr. R.A. Deshmukh for respondent No. 3A to 3D. It has been vehemently submitted on behalf of the appellants that, the second appeal is restricted only to the prayer of rejection of declaration of ownership to the plaintiff, and therefore, the substantial question of law is also limited to that extent. Plaintiffs are claiming ownership over the suit properties stating that, it is ancestral property. Their names are entered in the revenue record since their predecessor. Under such circumstance the document of ownership could not have been expected by both the Courts below. There is admittedly longstanding possession of the plaintiffs over the suit land, and therefore in view of Section 110 of Evidence Act, it ought to have been considered by both the Courts that this is a fit case where the declaration should be granted. Since admittedly there is possession of the plaintiffs since long over the suit property, the burden was on the defendants to prove that plaintiffs are not the owners of the suit land. In fact it ought to have been held that, defendants have failed to discharge this burden. So also they have not proved their ownership over the suit land. The automatic finding ought to have been granted that the plaintiffs are the owners of the suit properties. In order to support his arguments, he relied on the decision in, State of A.P. & Ors. Versus Star Bone Mill & Fertiliser Co., reported in MANU/SC/0190/2013 : AIR 2013 (SC) (Supp) 921, wherein it has been held that,

"The principle enshrined in Section 110 of Evidence Act, is based on public policy with the object of preventing persons from committing breach of peace by taking law into their own hands, however good their title over the land in question may be. It is for this purpose that the provisions of Section 6 of Specific Relief Act, 1963, Section 145 of Code of Criminal Procedure, 1973, and Sections 154 and 158 of Indian Penal Code were enacted. All the aforesaid provisions have the same object. The said presumption is led under Section 114 of the Evidence Act, and applies only in a case where there is either no proof, or very little proof of ownership on either side. The maxim, possession follows title is applicable in cases where proof of actual possession cannot reasonably be expected, for instance, in case of waste land, or where nothing is known about possession one-way or another. Presumption of title as a result of possession, can arise only where facts disclose that no title vests in any party. Possession of plaintiff is not prima facie wrongful, and title of plaintiff is not proved. It certainly does not mean that, because a man has title over some land, he is necessarily in possession of it. It in fact means, that if at any time a man with title was in possession of the said property, the law allows the presumption that such possession was in continuation of the title vested in him. A person must establish that he has continued possession of the suit property, while the other side claiming title, must make out a case of trespass/encroachment etc. Where the apparent title is with the plaintiff, it is incumbent upon defendant, that in order to displace this claim of apparent title and to establish beneficial title in himself, he must establish by way of satisfactory evidence, circumstances that favours his version. Even a revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of the possession and/or continuity thereof both forward and backward can also be raised under Section 110 of the Evidence Act."

8. Further reliance has been placed on Abdul Latif and Ors. Versus Nagar Vikas Pranyas, Udaipur, reported in MANU/RH/0234/2006 : AIR 2006 Rajasthan 215, wherein it has been also held that,

"A document on record proved long, peaceful and settled possession over the suit property. Defendant could not make out case of trespass over its land in that case. The presumption of title on basis of possession could be drawn, on the basis of Section 110 of Evidence Act."

9. Per contra, the learned advocate appearing for the respondents No. 3A to 3D supported the reasons given by both the Courts below, especially paragraph No. 43 from the Judgment of the First Appellate Court wherein there is discussion in respect of Section 110 of the Evidence Act. It has been observed that, though the plaintiffs have shown various documents stating that they are in possession of the land since long, but the cultivation is not traceable to any definite title. It was said that, mere entries in Khasra Pahani Patrak as Kabjedar do not certify the source of title, and therefore the learned Courts below have rightly refused to draw the presumption under Section 110 of the Evidence Act by holding plaintiffs as owners of the suit lands.

10. As aforesaid the scope of the second appeal is very much limited. It is restricted to the relief which was not granted to the plaintiff in respect of ownership over the suit lands. Original defendants have not filed any second appeal challenging the Judgment and decree passed by the First Appellate Court after the dismissal of their Regular Civil Appeal No. 270 of 1992. Under such circumstance in the light of the above said submissions, it is required to be seen as to whether both the Courts below have committed error or not. Both the Courts below have held that, plaintiffs are possessing the suit land since many years. Though the title was not traced but the oldest document was Exhibit 111 in respect of Survey No. 16 which was Pahani Patrak for the year 1955-1956. Name of Shrirang Bhujanga Shinde was shown as 'Pattedar' and name of plaintiffs' predecessor were shown as possessor. It was specifically mentioned in the same that the right, title or interest of Dhondiba Nagu and Dnyandeo Nagu are not traceable. Same is the case in respect of Pahani Patrak of Survey No. 22 Exhibit 126. On the basis of these documents, the further entries have been recorded. Name of plaintiffs have been shown in the cultivation column and there are longstanding entries in the name of plaintiffs and predecessor. It is to be noted that, defendants have not produced any document of title. Only on the basis of entry as 'Pattedar' it appears that they were claiming ownership. In their written statement itself they had stated that, after death of Harinarayan Survey Nos. 16 and 22 devolved on his two sons Bhujanga and Lahanu. Bhujanga had two sons by name Shrirang and Hari. Name of Shrirang can be traceable to said Khasra Pahani Patrak as 'Pattedar', but then it is stated that Bhujanga during his lifetime gave 1/4th share from both the survey numbers to one Babaji Kengre for cultivation and after death of Babaji Kengre, it was given to father of the plaintiffs for cultivation. Defendants are not coming with a case that, father of plaintiffs was inducted as tenant in respect of the said portion. Under such circumstance even the defendants are not explaining as to how plaintiffs or their predecessor have got the possession of suit lands, if they want to claim ownership over the suit properties. Therefore, now the appellants are claiming that by taking advantage of the provisions under Section 110 of Evidence Act, both the Courts below ought to have declared plaintiffs as owner of the suit lands. The learned First Appellate Court took note of the provision but then observed that, though plaintiffs have shown various documents to support claim of cultivation of the suit lands. It is stated that, the cultivation is not traceable, that means it is not traceable to the title, but then at the same time it was stated that same is the case with the original defendants. Source of their ownership, title is also not traceable.

11. Defendants in this case have not come with a case that, plaintiffs are the trespassers, and therefore, definitely the ratio laid down in State of A.P. & Ors. Versus Star Bone Mill & Fertiliser Co., (Supra) would be applicable. In this case the Apex Court had taken note of the decisions of certain pronouncements in the past, they were;

"10. In Gurunath Manohar Pavaskar & Ors. V. Nagesh Siddappa Navalgund & Ors., MANU/SC/8191/2007 : AIR 2008 SC 901, this Court held as under:--

A revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof both forward and backward can also be raised under Section 110 of Evidence Act."

"11. In Nair Service Society Ltd. V. K.C. Alexander & Ors. & Ors., MANU/SC/0144/1968 : AIR 1968 SC 1165, dealing with the provision of Section 110 of the Evidence Act, this Court held as under: -

Possession may prima facie raise a presumption of title no one can deny but this presumption can hardly arise when the facts are known. When the facts disclose no title in either party, possession alone decides."

"12. In Chief Conservator of Forests, Govt. of A.P. V. Collector & Ors., MANU/SC/0153/2003 : AIR 2003 SC 1805, this Court held that:

Presumption, which is rebuttable, is attracted when the possession is prima facie lawful and when the contesting party has no title."

Based on these pronouncements the observation above stated (para 7) has been made.

12. The decision in Abdul Latif and Ors. V. Nagar Vikas Pranyas, Udaipur (Supra) case is also helpful to the appellants. When the plaintiffs had shown their longstanding possession, defendants failed to prove the title as well as had not come with a case that plaintiffs are trespassers or encroachers; under such circumstance merely because name of one Shrirang was shown as 'Pattedar', will not confer a title in him. The maxim "possession follows title" ought to have been invoked by virtue of Section 110 of Evidence Act by both the Courts below. Another fact is also required to be considered is that, ownership of a land cannot remain in abeyance. Here a third party is not coming forward to claim ownership. If both the parties to the proceeding are held to be 'not the owners', then such situation leads to a chaos which is not expected and especially to avoid such situation provisions like Section 110 of Evidence Act have been enacted. Therefore, the substantial question of law is answered in the affirmative. In consequence the second appeal succeeds.

ORDER

1) Appeal is hereby allowed as follows;

i) The Judgment and decree passed in Regular Civil Appeal No. 05 of 1993, passed by learned District Judge, Beed on 27-11-2003 and Judgment and decree passed in Regular Civil Suit No. 230 of 1982 by 3rd Jt. Civil Judge, Junior Division, Beed on 31-07-1992 is hereby set aside to the extent of refusal of granting ownership over the suit lands. The said suit stands decreed in entirety.

ii) Plaintiffs i.e. present appellants are declared as owners of land Survey No. 16/E/5 and Survey No. 22/E/6 to the extent as shown in the map appended to the plaint in Red colour.

iii) It is clarified that there is no change in the judgment and decree passed in Regular Civil Appeal No. 270 of 1992.

2) For the above said reasons, parties to bear their own cost of the proceeding. Decree be drawn accordingly.

The trial court rightly allowed the application and condoned delay in filing of the written statement.

The instant petition is directed against the order dated 7 May 2019 passed by Revisional Court in Civil Revision No.177 of 2018 whereby the revisional court has allowed the revision and has set aside the order dated 12 November 2018 passed by the trial court. The trial court, by the said order, had allowed the application Paper No.94-C and condoned delay in filing of the written statement by the petitioner (defendant No.2).

In short, the facts giving rise to the instant petition are as follows: -

The plaintiff-respondent instituted Original Suit No. 261 of 2016 against the petitioner and respondent No.2 for specific performance of an agreement for sale dated 18/19 February 1988 and for permanent injunction restraining the defendant-petitioner from executing any sale deed in respect of the suit property. The petitioner entered appearance in the suit on 29 April 2016. She filed an application on 6 May 2016 under Order 7 Rule, 11 CPC praying for rejection of the plaint on the ground that the suit is barred by the law of limitation.

The petitioner did not file any written statement. She kept on pursuing her application under Order 7, Rule 11 CPC. Ultimately, it was not pressed, resulting in its dismissal on 28 August 2018. She thereafter filed an application 94-C with prayer to take on record the written statement filed along with it after condoning the delay in filing the same. The application was opposed by the plaintiff-respondent on the ground that the petitioner deliberately did not file the written statement for more than twenty eight months since she entered appearance with oblique motive of delaying the proceedings. She was aware that the plaint could not be rejected on the plea of limitation but still she chose not to file the written statement.

The trial court as noted above, allowed the application relying mainly on the decision of the Supreme Court in Salem Bar Association vs Union of India, (2005) 6 SCC 635. The trial court held that a very strict and technical view is to be eschewed otherwise it will result in serious prejudice to the petitioner. The trial court accepted the explanation offered by the petitioner in not filing written statement within prescribed time. The trial court also held that the plaintiff-respondent could be compensated by cost and accordingly allowed the application subject to payment of a cost of Rs.2000/- to the plaintiff-respondent. The plaintiff-respondent being aggrieved thereby filed a revision, which has been allowed by the impugned order.

Learned counsel for the petitioner submitted that the impugned order is manifestly illegal. The trial court had rightly allowed the application 94C. According to him, once an application under Order 7 Rule 11 CPC is filed, it is bounden duty of the trial court to decide the same before commencing the trial. Consequently, till the time application remained pending, the defendant was not obliged to file the written statement nor there was any question of delay. In support of the said submission, learned counsel for the petitioner has placed great emphasis on the judgement of the Supreme Court in R K Roja versus US Rayudu and another, 2016 (14) SCC 275. It is also urged that as soon as the petitioner realized that it would be better to press the point relating to limitation after issues are framed, she immediately got the application dismissed as not pressed and also filed her written statement. In the circumstances, the trial court was fully justified in condoning the delay in filing of the written statement. The revisional court has taken a very technical view in directing the written statement to be taken off the record. Reliance has also been placed on the judgments of the Supreme Court in Kailash Vs. Nanhku and others, AIR 2005 SC 2441 and Zolba Vs. Keshao and others, AIR 2008 SC 2099.

Per contra, learned counsel for the plaintiff-respondent urged that the revisional court has rightly allowed the revision in as much as the petitioner failed to disclose any exceptional reason for not being able to file written statement in time. He placed reliance on the judgement of the Supreme Court in SCG Contracts India Pvt. Ltd. Vs. K.S. Chamankar Infrastructure Pvt. Ltd. and others, AIR 2019 SC 2691 and judgement of this Court in Bonton Plastics Pvt. Ltd. Delhi Vs. Ramesh Chawla and another, 2016 (6) ALJ 490 .

I have considered the submissions advanced by learned counsel for the parties.

The legal position that provision of Order 8 Rule 1 CPC being in the realm of procedure is not mandatory but directory, is now well settled by a catena of judgments of the Supreme Court. The delay in filing of the written statement could not be condoned as a matter of course but by way of exception, for reasons which are of exceptional nature occasioned by factors beyond the control of the defendant, to be recorded in writing. In this regard, a brief reference to certain decisions would be of help. In Kailash versus Nanhku, the Supreme Court, after considering the legislative intent in amending Order 8 Rule 1 CPC prescribing initial period of 30 days for filing written statement, extendable by a further period of 90 days, held as follows:-

"40. Considering the object and purpose behind enacting Rule 1 of Order VIII in the present form and the context in which the provision is placed, we are of the opinion that the provision has to be construed as directory and not mandatory. In exceptional situations, the court may extend the time for filing the written statement though the period of 30 days and 90 days, referred to in the provision, has expired. However, we may not be misunderstood as nullifying the entire force and impact - the entire life and vigour - of the provision. The delaying tactics adopted by the defendants in law courts are now proverbial as they do stand to gain by delay. This is more so in election disputes because by delaying the trial of election petition, the successful candidates may succeed in enjoying the substantial part, if not in its entirety, the term for which he was elected even though he may loose the battle at the end. Therefore, the judge trying the case must handle the prayer for adjournment with firmness. The defendant seeking extension of time beyond the limits laid down by the provision may not ordinarily be shown indulgence.

41. Ordinarily, the time schedule prescribed by Order VIII, Rule 1 has to be honoured. The defendant should be vigilant. No sooner the writ of summons is served on him he should take steps for drafting his defence and filing the written statement on the appointed date of hearing without waiting for the arrival of the date appointed in the summons for his appearance in the Court. The extension of time sought for by the defendant from the court whether within 30 days or 90 days, as the case may be, should not be granted just as a matter of routine and merely for asking more so, when the period of 90 days has expired. The extension can be only by way of an exception and for reasons assigned by the defendant and also recorded in writing by the Court to its satisfaction. It must be spelled out that a departure from the time schedule prescribed by Order VIII, Rule 1 of the Code was being allowed to be made because the circumstances were exceptional, occasioned by reasons beyond the control of the defendant and such extension was required in the interest of justice, and grave injustice would be occasioned if the time was not extended.

42. A prayer seeking time beyond 90 days for filing the written statement ought to be made in writing. In its judicial discretion exercised on well-settled parameters, the Court may indeed put the defendants on terms including imposition of compensatory costs and may also insist on affidavit, medical certificate or other documentary evidence (depending on the facts and circumstances of a given case) being annexed with the application seeking extension of time so as to convince the Court that the prayer was founded on grounds which do exist.

43. The extension of time shall be only by way of exception and for reasons to be recorded in writing, howsoever brief they may be, by the court. In no case, the defendant shall be permitted to seek extension of time when the court is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel. The court may impose costs for dual purpose: (i) to deter the defendant from seeking any extension of time just for asking and (ii) to compensate the plaintiff for the delay and inconvenience caused to him."

Again in Salem Bar Association, the apex court reiterated the legal position that the provision of Order 8 Rule 1 CPC is directory not mandatory and the court in appropriate cases can extend time for filing written statement even beyond the prescribed period of 90 days. Once again, it was held that the provision being procedural in nature has to be interpreted in a manner so as to advance the cause of justice and not to defeat it. A construction of the rule of procedure which promotes justice and prevents miscarriage of justice has to be preferred. The observations made in paragraph 21 are worth reproducing:-

"21. ...There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The court has wide power to "make such order in relation to the suit as it thinks fit". Clearly, therefore, the provision of Order 8 Rule 1 providing for the upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time-limit of 90 days. The discretion of the court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order 8 Rule 1."

In Atcom Technologies Limited Vs. Y.A. Chunawala and Company and others, (2018) 6 SCC 639, the Supreme Court held that the onus is upon the defendant to plead and satisfactorily demonstrate a valid reason for not filing written statement within prescribed time-

"21. In such a situation, onus upon the defendant is of a higher degree to plead and satisfactorily demonstrate a valid reason for not filing the written statement within thirty days. When that is a requirement, could it be a ground to condone delay of more than 5 years even when it is calculated from the year 2009, only because of the reason that Writ of Summons were not served till 2009?"

It is thus well settled that:- (a) Order 8 Rule 1 CPC is a provision which deals with the procedural law and not substantive rights of the parties; (b) the provision though couched in a negative language is not mandatory but directory; (c) the court has enough power to condone delay in filing written statement even beyond the stipulated period; (d) however, it could be for exceptional reasons beyond the control of the party and only when the court is of the opinion that by condoning delay, it would advance the cause of justice; and (e) in such a case, the plaintiff should be adequately compensated by cost.

It was urged by learned counsel for the petitioner with great emphasis that since the application under Order 7 Rule 11 remained pending, consequently, the stipulation regarding time prescribed under Order 8 Rule 1 CPC would not get attracted. The said submission was made relying on the judgement of the Supreme Court in R K Roja. For understanding the ratio of the said judgement, I would like to allude to the facts of that case. The appellant had approached the Supreme Court with two grievances; (i) the High Court did not dispose of the application filed by her under Order 7 Rule 11 CPC for rejection of the election petition but had posted the same alongwith main petition; and (ii) she was denied opportunity to file written statement. In the election petition, the appellant filed a counter affidavit and prayed for rejection of the election petition in exercise of power under Order 7 Rule 11 CPC. The court did not consider the request on the ground that no formal application was filed in that regard and hence, proceeded with the trial. At that stage, the appellant filed a formal application under Order 7 Rule 11 CPC. The court posted the said application for disposal alongwith the main petition. Aggrieved thereby, the matter was taken up in appeal before the Supreme Court. The Supreme Court accepted the contention of the appellant that an application under Order 7 Rule 11 CPC could be filed at any stage. The Supreme Court also held that once an application is filed under Order 7 Rule 11 CPC, the court is bound to dispose of the same before proceeding with the trial. Consequently, the course taken by the High Court in declining to consider the application under Order 7 Rule 11 CPC before proceeding further in the matter was held to be unsustainable in law. While taking the above view, the Supreme Court added a caveat to it:-

"However, we may hasten to add that the liberty to file an application for rejection under Order VII Rule 11 CPC cannot be made as a ruse for retrieving the lost opportunity to file the written statement. "

In SCG Contracts India Private Limited, the Supreme Court duly considered R K Roja and held that: -

"14. Learned counsel appearing for the respondents also relied upon R.K. Roja vs. U.S. Rayudu and another (supra) for the proposition that the defendant is entitled to file an application for rejection of plaint under Order VII Rule 11 before filing his written statement. We are of the view that this judgment cannot be read in the manner sought for by the learned counsel appearing on behalf of the respondents. Order VII Rule 11 proceedings are independent of the filing of a written statement once a suit has been filed. In fact, para 6 of that judgment records "However, we may hasten to add that the liberty to file an application for rejection under Order 7 Rule 11 CPC cannot be made as a ruse for retrieving the lost opportunity to file the written statement".

Although the Supreme Court was considering the amendments made in the CPC in reference to its applicability to the Commercial Courts, Commercial Division and Appellate Division of High Courts Act, 2015 and whereunder there was a specific bar for taking on record written statement filed beyond 120 days from the date of service of summons but exposition of law and the interpretation given to the previous judgment in R K Roja would be fully applicable to the proceedings of any ordinary civil suit. The time limit prescribed for filing of written statement under the proviso to Order 8 Rule 1 CPC would in no manner get extended or compromised for the reason that the defendant had filed application under Order 7 Rule is 11 CPC and it remained pending beyond the period of 120 days from the date of service of summons upon the defendant. If the defendant chooses to take risk of not filing the written statement while his application under Order 7 Rule 11 CPC is pending, he should be ready to face the consequences if the application is ultimately rejected. As rightly observed by the Supreme Court in SCG Contracts, the obligation of filing written statement as per the provision of Order 8 Rule 1 CPC is quite independent of the proceedings under Order 7 Rule 11 CPC. It cannot be made a ruse for retrieving the lost opportunity to file the written statement, as observed by the Supreme Court in R.K. Roja. Any other interpretation would be contrary to the legislative intent and would provide a safe path to a chronic procrastinator to defeat the provisions of law by filing frivolous application under Order 7 Rule 11 CPC and thereafter delaying its disposal.

In Bonton Plastics Pvt. Ltd. Delhi, a learned Single Judge of this Court had the occasion to consider exactly the same argument. The Court repelled the same observing that filing of application under Order 7 Rule 11 CPC would in no manner be an impediment in the way of the defendant in filing written statement within stipulated period. It has been observed as follows:-

"23. The defendant-revisionist had filed application under Order 7 Rule 11 C.P.C. on 24.7.2015 and the same was rejected on 18.1.2016. The explanation that the defendant-revisionist could not file the written statement on account of pendency of the above application is completely irrelevant and not material. The period of 30 days for filing written statement as well as the extended period of 90 days had expired much before the application under Order 7 Rule 11 was filed. There is no explanation or material on record to justify the non-filing of the written statement by the defendant-revisionist within the above period. Therefore, the defendant-revisionist even if entitle to exclusion of time spent in pursuing the application under Order 7 Rule 11 C.P.C. has miserably failed to submit any explanation or justification for not filing the written statement within 90 days of its appearance which had expired before the filing of application under Order 7 Rule 11 C.P.C.

24. Moreover, the filing of the aforesaid application under Order 7 Rule 11 C.P.C. in no way had stopped the defendant-revisionist from filing the written statement. The said application was rejected on 18.1.2016 but the written statement was presented in the Court on 4.3.2016 and in the meantime the defendant-revisionist had moved two applications seeking time to move to the High Court and for filing written statement. The manner and conduct in which the defendant-revisionist handled the suit and took time for filing of written statement speaks for itself that the intention was to prolong the matter rather to contest it on merit and get it concluded. These facts do not justify to make out an exceptional and rare case fit for extending time for filing written statement beyond the period of 90 days."

Now, reverting to the facts of the instant case, it is noteworthy that generally an issue as to whether suit is barred by limitation, is a mixed question of law and fact. The plaint could be rejected as barred by limitation only if a plain reading thereof would show that the suit was instituted beyond the prescribed time. It is also well settled that in a suit for specific performance of an agreement for sale of immovable property, time is generally not the essence of contract. Although, the defendant-petitioner had prayed for rejection of the plaint on the ground of limitation in exercise of power under Order 7 Rule 11 CPC, but it seems that she was well aware or at least well advised that it would not be possible to get the plaint rejected by invoking the power of the court under Order 7 Rule 11 CPC. The determination of the said question would require evidence. This is clear from the application filed by the petitioner dated 6.5.2016 wherein she stated that during pendency of application under Order 7 Rule CPC, she realized that it would be better to get the said application dismissed as not pressed and instead pray for decision on the issue of limitation after filing the written statement. It is not a case where the petitioner could be said to be harbouring under any misconception of law on account of which she was prevented from filing the written statement. The petitioner filed the application under Order 7 Rule 11 CPC on 6.5.2016 and got it rejected as not pressed on 28.8.2018 i.e. after more than two years and during this period, she did not file her written statement. The petitioner herself is to be blamed for having adopted the course which she knew would ultimately result in failure and consequently, she has to face the consequences flowing out of it. The revisional court has rightly observed that the petitioner has failed to disclose any good reason, much less any exceptional reason for not filing the written statement within prescribed time. The petitioner by filing application under Order 7 Rule 11 CPC, which she knew would not bear any fruit, had succeeded in delaying the trial for more than two years. It is to curb such kind of practices that the Legislature had provided a time limit by amending Order 8 Rule 1 CPC by Act No.22 of 2002. The power to extend the time limit could not be exercised in a casual manner, for mere askance, so as to nullify the period stipulated by Order 8 Rule 1 CPC.

In Atcom Technologies Ltd. (supra), where the High Court condoned the delay in filing written statement, although there was no valid ground, was not approved by the Supreme Court, observing thus:-

"22. We fail to persuade ourselves with this kind of reasoning given by the High Court in condoning the delay, thereby disregarding the provisions of Order 8 Rule 1 of the Code of Civil Procedure, 1908 and the spirit behind it. This reason of the High Court that delay was condoned ''by balancing the rights and equities' is far-fetched and, in the process, abnormal delay in filing the written statement is condoned without addressing the relevant factor, viz. whether the respondents had furnished proper and satisfactory explanation for such a delay. The approach of the High Court is clearly erroneous in law and cannot be countenanced. No doubt, the provisions of Order 8 Rule 1 of the Code of Civil Procedure, 1908 are procedural in nature and, therefore, hand maid of justice. However, that would not mean that the defendant has right to take as much time as he wants in filing the written statement, without giving convincing and cogent reasons for delay and the High Court has to condone it mechanically."

In Zolba (supra), there was a delay of thirty five days in filing written statement in a suit for partition. The explanation furnished by the defendant for not being able to file written statement within prescribed time was that he was advised by his counsel that the written statement could be filed after the decision of an appeal pending at that stage before the District court challenging the grant of temporary injunction in favour of the plaintiff. It was also the specific case of the defendant therein that the office record was handed over to the counsel through whom appeal was filed in the District court at Chandrapur, whereas the suit was pending before Civil Judge (Junior Division) Nagbhid. It is in the aforesaid backdrop that the Supreme Court interfered with the order refusing to condone delay in filing the written statement holding that:-

"8. ....In the application, it has been stated that on instruction of his counsel in the trial court, the written statement was not filed within the period of limitation as the appellant was under bonafide belief that the written statement shall be filed after the decision of the appeal by the District Court. The written statement was, however, filed and the records of the case were called from his lawyer who has been conducting his case in the appeal pending before the District Court. The facts disclose that the misc. appeal has been filed against an order of injunction before the District Court Chandrapur whereas the suit is pending before the Civil Judge, Junior Division, Nagbhid. Since the appeal was pending, the records of the appellant were then lying with the lawyer at Chandrapur. Therefore, the file was not available with the lawyer of the appellant at Nagbhid and therefore, the written statement could not be filed within the period of limitation. Such being the position, in our view, the facts stated would constitute sufficient cause for condoning the delay in filing the written statement and it has to be taken that the non-availability of records at Nagbhid had prevented the appellant from filing the written statement within the period of limitation which in our view was an exceptional case constituting sufficient cause for condoning the delay in filing the written statement."

On the other hand, in the instant case, the petitioner did not file the written statement knowing well the fate of the application under Order 7 Rule 11 CPC as well as the consequences flowing out of non filing of the written statement within time stipulated by Order 8 Rule 1 CPC. This Court fully concurs with the view taken by the revisional court that there did not exist any exceptional reason beyond the control of the petitioner which prevented her from filing the written statement within time and the trial court acted with material irregularity in exercise of its jurisdiction in condoning the delay.

In consequence and as a result of the discussion made above, the petition lacks merit and is dismissed.

Criminal case and Complaint case u/s138 may proceed togather.

The  present  appeal  is  directed  against  an  order  passed  by  the  High Court  of  Gujarat  on  11th  December,  2017  whereby  the  petition  for quashing  of  FIR  No.  3  of  2007  registered  at  PS  Mehsana  for  offence punishable  under  Sections  420,  406,  419,  467,  468,  379,  465,  475, 120-B  and  114  of  the  Indian  Penal  Code, 18601  was  dismissed. The  appellants  had  filed  a  complaint  for  an  offence  under  Section 138  of  the  Negotiable  Instrument  Act,  18812  alleging  that  cheque No.  567889  dated  1st  March,  2005  in  the  sum  of  Rs.4,50,000/-  was issued  by  respondent  No.2,  which  was  dishonoured  on  presentation with  the  remarks  that  the  account  closed  on  28th  May,  2005. 

A complaint  bearing  private  criminal  case  No.  33537  of  2006  was f iled  by  appellant  No.2  in  the  Court  of  Judicial  Magistrate,  Surat  on 26th  July,  2005. 3. 4. 5. It   is   thereafter,   the   complainant   (respondent   No.   2)   filed   a complaint  against  the  appellants  for  offences  under  Sections  420, 406,  419,  467,  468,  379,  465,  475,  120-B  and  114  of  IPC  bearing Criminal  Case  No.  9490  of  2008  on  17th  October,  2007.    The learned  Magistrate  forwarded  the  said  complaint  to  the  Police  in terms  of  Section  156(3)  of  the  Code  of  Criminal  Procedure,  19733. FIR  No.  3  of  2007,  as  mentioned  above,  was  lodged  on  the  basis  of such  order. The  appellants  had  sought  quashing  of  the  said  FIR  in  a  petition under  Section  482  of  the  Code  which  was  dismissed  by  the  High Court.     

The  respondent  No.2  had  alleged  that  three  cheques bearing  Nos.567888,  567889  and  567890  were  misplaced  along with  letter  heads,  rubber  stamps  and  other  important  documents from  the  office  of  the  Company  and  one  of  the  cheques  had  been used  by  the  appellants  which  was  dishonoured  on  presentation. Therefore,  the  appellants  have  been  rightly  facing  the  prosecution of  the  offences  as  mentioned  in  the  FIR. The  stand  of  the  appellants  is  that  such  cheque  was  given  to  them along  with  letter  dated  25th  November,  2002  in  view  of  the  fact  that the  Company  had  not  issued  shares  for  which  the  appellants  had contributed  a  sum  of  Rs.4,50,000/-.    The  cheque  in  question  was issued  since  the  shares  could  not  be  issued,  therefore,  cheque  was issued  payable  after  a  long  period.  No  one  has  put  in  appearance  on  behalf  of  respondent  No.  2  even though  served.  We  have  heard  learned  counsel  for  the  parties.  We  find  that  the  issue  in  both  the  complaints  pertains  to  cheque No.  567889  which  was  said  to  be  from  the  cheque  book  of  the Company  of  which  respondent  No.  2  is  the  officer.    The  appellants rely  upon  the  said  cheque  in  a  complaint  for  an  offence  under Section   138   of   the   NI   Act   whereas   the   respondent   No.2complainant  alleges  that  said  cheque  along  with  two  other  cheques had   been   misplaced   which   were   used   by   the   appellants fraudulently. The  complaint  filed  by  the  appellants  under  Section  138  of  the  NI Act  is  earlier  in  point  of  time.    The  complaint  filed  by  respondent No.2  is  more  than two  years  later.   Since  the  issue  in both the  cases revolves  around  the  same  cheque,  therefore,  we  find  that  instead of  quashing  the  FIR  No.  3  of  2007,  the  ends  of  justice  would  meet  if proceedings  arising  out  of  FIR  No.  3  of  2007  are  transferred  to  the Court  of  Judicial  Magistrate,  Surat,  where  the  proceedings  of  other complaint  under  Section  138  of  the  NI  Act  are  pending  so  that  the complaint  filed  by  the  appellants  and  the  proceedings  arising  out  of FIR  alleged  by  respondent  No.  2  are  decided  together  to  avoid contradictory  judgments  and  to  facilitate  the  issues  which  are

common in  both.  

9. Consequently,  the  appeal  is  disposed  of  with  the  direction  that  the proceedings  arising  out  of  FIR  No.  3  of  2007  PS  Mehsana  shall stand  transferred  to  the  Court  of  Judicial  Magistrate,  Surat  where the  proceedings  of  complaint  No.  33537  of  2006  is  pending.    Both the  cases  shall  be  heard  and  decided  together. 

10. The  parties  are  directed  to  appear  before  the   Court  of  Judicial Magistrate,  Surat  on  16th  March,  2020  for  further  proceedings  in accordance  with  law. 

NEW DELHI; FEBRUARY  28,  2020.

सरकारी कब्जे से मुक्त हों हिंदुओं के मंदिर, सभी धार्मिक स्थलों के प्रबंधन के लिए एक समान कानून बनाने के लिए सुप्रीम कोर्ट में याचिका

भारत संविधान से चलता है माने कि सभी के लिए विधान यानी कि कानून सबके लिए समान है, लेकिन विडंबना देखिए एक भी मजार, एक भी दरगाह, एक भी मस्जिद सरकार के कंट्रोल में नहीं है, एक भी चर्च सरकार के कंट्रोल में नहीं हैं, लेकिन 4 लाख मंदिर सरकार के कंट्रोल में हैं. इसी भेदभाव को समाप्त करने और सभी धार्मिक स्थलों के प्रबंधन के लिए एक समान कानून बनाने के लिए सुप्रीम कोर्ट (Supreme Court) में चाचिका दाखिल की गई है. यह याचिका बीजेपी नेता और वरिष्ठ अधिवक्ता अश्विनी उपाध्याय (Ashwini Upadhyay) ने दायर की है. उपाध्याय की ओर दाखिल अर्जी में केंद्र सरकार के होम मिनिस्ट्री, लॉ मिनिस्ट्री और देश भर के तमाम राज्यों को प्रतिवादी बनाया गया है।

अश्विनी उपाध्याय ने अपनी याचिका में कहा कि हिंदू, सिख, बौद्ध और जैन कम्युनिटी को धार्मिक स्थलों के रखरखाव और मैनेजमेंट का वैसा ही अधिकार मिलना चाहिए जैसा कि मुस्लिम, पारसी और क्रिश्चियन को मिला हुआ है. याचिका में कहा गया है कि हिंदुओं, सिख, जैन और बौद्ध के धार्मिक संस्थानों और स्थलों के रखरखाव और मैनजमेंट राज्य सरकार के हाथों में है और इसके लिए जो कानून बनाया गया है उसे खारिज किया जाए क्योंकि ये कानून संविधान के प्रावधानों के खिलाफ है।

याचिकार्कता के मुताबिक वर्तमान कानून के मुताबिक राज्य सरकारें हिंदुओं, सिख, जैन और बौद्ध के धार्मिक स्थलों को कंट्रोल करता है. इसके लिए सबसे पहले अंग्रेज ने 1863 में कानून बनाया था और इसके तहत मंदिर, मठ सहित हिंदुओं, सिख, जैन व बौद्ध के धार्मिक स्थलों के कंट्रोल को सरकार के हाथ में दे दिया था. इसके बाद से दर्जनों कानून और भी बने जिसके तहत हिंदुओं, सिख, बौद्ध और जैन के धार्मिक स्थल व संस्थानों के मैनेजमेंट और रखरखाव सरकार के हाथ में है. मौजूदा कानून के तहत राज्य सरकार के अधिकार में तमाम मंदिर, गुरुद्वारा आदि का कंट्रोल है लेकिन मुस्लिम, पारसी और क्रिश्चियन के धार्मिक स्थल का कंट्रोल सरकार के हाथों में नहीं है. सरकारी कंट्रोल के कारण मंदिर, गुरुद्वारा आदि की स्थिति कई जगह खराब है।

दरअसल, हिंदू रिलिजियस चैरिटेबल एनडोमेंट्स एक्ट के तहत राज्य सरकार को इस बात की इजाजत है कि वह मंदिर आदि का वित्तीय और अन्य मैनेजमेंट अपने पास रखे. इसके लिए राज्य सरकार का डिपार्टमेंट है और मंदिर आदि का मैनेजमेंट अपने पास रखते हैं. उपाध्याय ने अपनी याचिका में संविधान के अनुच्छेद-14 समानता की बात करता है और अनुच्छेद-15 कानून के सामने भेदभाव को रोकता है. लिंग, जाति, धर्म और जन्म स्थान आदि के आधार पर किसी से कोई भेदभाव नहीं हो सकता. वही अनुच्छेद-25 धार्मिक स्वतंत्रता की बात करता है और अनुच्छेद-26 गारंटी देता है कि तमाम समुदाय के लोग अपने संस्थान का रखरखाव और मैनेजमेंट करेंगे. लेकिन राज्य के कानून के कारण हिंदू, सिख, जैन और बौध इस संवैधानिक अधिकार से वंचित हो रहे हैं।

याचिका में गुहार लगाई गई है कि हिंदू, सिख, जैन और बौद्ध को धार्मिक स्थल के रखरखाव और मैनेजमेंट का वैसा ही अधिकार मिले जैसा कि मुस्लिम आदि को मिला हुआ है. साथ ही हिंदुओं, सिख, जैन और बौद्ध को धार्मिक स्थल के लिए चल व अचल संपत्ति बनाने का भी अधिकार मिले. यह भी गुहार लगाई गई है कि अभी मंदिर आदि को कंट्रोल करने के लिए जो कानून है उसे खारिज किया जाए. साथ ही केंद्र व लॉ कमिशन को निर्देश दिया जाए कि वह कॉमन चार्टर फॉर रिलिजियस एंड चैरिटेबल इंस्टीट्यूट के लिए ड्राफ्ट तैयार करे और एक यूनिफॉर्म कानून बनाए।

अश्विनी उपाध्याय ने कहा कि भारत में एक भी मजार, एक भी दरगाह, एक भी मस्जिद सरकार के कंट्रोल में नहीं है, एक भी चर्च सरकार के कंट्रोल में नहीं हैं, लेकिन 4 लाख मंदिर सरकार के कंट्रोल में हैं. 1863 में अंग्रेजों ने मंदिरों पर नियंत्रण के लिए पहला कानून बनाया था जिसके कहते हैं रिलीजियस एंडोमेंट एक्ट. वहीं आजादी के बाद उस कानून को खत्म करने के बयाय 29 और कानून बना दिए गए हैं, आज के समय में 30 कानून हो चुके हैं जो मठ और मंदिर को कंट्रोल कर रहे हैं. ये सेक्युलरिज्म नहीं है, आर्टिकल 26 में बहुत साफ-साफ लिखा हुआ है कि सभी धर्मों को अपने मठ, मंदिर और धार्मिक स्थानों को अपने तरीके से मैनेज करने का पूरा अधिकार है, उसमें केवल मुसलमानों को ही अधिकार नहीं मिला हुआ है, वो सबके लिए बना हुआ है।

उपाध्याय ने कहा कि हमारे देश में संविधान में जो अधिकार अल्पसंख्यकों को है वही बहुसंख्यकों को भी है. आर्टिकल 14 का मतलब सब समान है, आर्टिकल 15 का मतलब है कि भेदभाव नहीं होगा, और सबसे बड़ी बात कि संविधान में लिखा है कि जो टैक्स लिया जाएगा उसे लेते समय न तो धर्म देखा जाएगा और न ही उसे खर्च करते समय मज़हब देखा जाएगा. वहीं देश में इसका एकदम उल्टा हो रहा है. हिंदुओं के मंदिरों से उनका चढ़ावा लिया जा रहा है, धर्म के आधार पर टैक्स लिया जा रहा है, और मज़हब के आधार पर खर्च किया जा रहा है. संविधान की शपथ लेकर संविधान की धज्जियां उड़ाई जा रही हैं, इसी को हमने सुप्रीम कोर्ट में चैलेंज किया है।

उन्होंने कहा कि हमने सभी 30 कानूनों को सुप्रीम कोर्ट में चैलेंज किया है, हमे पूरा विश्वास है कि कोर्ट इन सभी कानूनों को खत्म करेगा. कोई भी धार्मिक स्थल सरकार के कब्जे में नहीं होना चाहिए. केंद्र सरकार एक यूनिफॉर्म एंडोमेंट एक्ट बनाए जो मजार, दरगाह, मस्जिद, चर्च, गुरूद्वारा और मंदिर पर भी लागू हो, या तो सब सरकार के नियंत्रण में हो या कोई सरकार के नियंत्रण में न हो, ये भेदभाव बंद होना चाहिए।

अलीगढ़ के डॉक्टर पर इलाज में लापरवाही बरतने के लिए जिला उपभोक्ता आयोग संभल ने लगाया ₹2,00,000 का जुर्माना

अलीगढ़ के डॉक्टर पर इलाज में लापरवाही बरतने के लिए जिला उपभोक्ता आयोग संभल ने लगाया ₹200000 का जुर्माना 

ग्राम नाधोस निवासी शिवकुमार पुत्र श्री प्रेम शंकर का दिनांक 26 अप्रैल 2009 को ट्रैक्टर से गिरकर दुर्घटना हो गई थी जिससे उनके कूल्हे में चोट आई थी जिसके लिए उन्होंने प्राथमिक उपचार बहजोई में कराते हुए अपने शेष उपचार के लिए अलीगढ़ के शांति नर्सिंग होम रामघाट रोड में अपना इलाज कराने के गए, जहां शांति नर्सिंग होम के डॉक्टर द्वारा उनका इलाज कर कुल्हा जोड़ा गया जो सही प्रकार से नही जुड़ा था और उसमें पस पड़ गया था जिस कारण उन्हें काफी परेशानी हुई और उन्होंने इसके संबंध में दिल्ली ,लखनऊ और संयुक्त चिकित्सालय मुरादाबाद में भी दिखाया और अपने इलाज में डॉक्टर द्वारा बरती गई लापरवाही की शिकायत उत्तर प्रदेश सरकार के तत्कालीन मंत्री श्री रामहेत भारती से की उनके द्वारा मुख्य चिकित्सा अधिकारी मुरादाबाद को एक टीम गठित कर मामले की जांच के लिए कहा गया तो मुख्य चिकित्साधिकारी  की देखरेख में 5 सदस्य टीम का गठन कर जांच की गई तो जांच में पाया गया कि अलीगढ़ के डॉक्टर द्वारा इलाज में लापरवाही बरती गई है जिस कारण शिवकुमार का कुल्हा खराब हो गया है और उसे बदलने की सलाह पैनल के डॉक्टरो द्वारा दी गई परंतु  अलीगढ़ के डॉक्टर ने शिव कुमार की कोई भी बात नहीं सुनी तब शिवकुमार ने अपने अधिवक्ता देवेंद्र वार्ष्णेय व लव मोहन वार्ष्णेय द्वारा एक परिवाद जिला उपभोक्ता आयोग संभल में दर्ज कराया जहां एकपक्षीय आदेश डॉक्टर के विरुद्ध सुनाया गया तब डॉक्टर ने उसके विरुद्ध राज्य आयोग में अपील की राज्य आयोग द्वारा डॉक्टर की बात को सुनने के लिए जिला उपभोक्ता आयोग को आदेशित किया कि डॉक्टर का पक्ष सुनकर परिवाद को गुण दोष के आधार पर निस्तारित करे। जिस पर परिवादी के अधिवक्ता देवेंद्र वार्ष्णेय व लव मोहन वार्ष्णेय ने अपना पक्ष फोरम के समक्ष रखा और परिवादी को न्याय मिल सका और आयोग के अध्यक्ष  श्रीराम अचल यादव व सदस्य श्री आशुतोष ने अपना निर्णय सुनाते हुए डॉक्टर व इंश्योरेंस कंपनी को आदेशित किया कि वह सयुक्तता व पृथक पृथक परिवादी को ₹2,00,000 चिकित्सा क्षतिपूर्ति के रूप में तथा ₹2,00,000 मानसिक कष्ट व आर्थिक हानि के मद में परिवाद संस्थान की तिथि से वास्तविक अदायगी तिथि तक 9% वार्षिक ब्याज सहित दो माह में अदा करें इसके अलावा विपक्षीगण परिवादी को ₹20,000 वाद व्यय भी अदा करेंगे।

शिव कुमार  बनाम शांति नर्सिंग होम आदि।

निर्णय दिनाँक- 17 अगस्त 2021

सुप्रीम कोर्ट ने कोरोना से हुई हर मौत को इलाज में लापरवाही मानने से किया इनकार, खारिज की मुआवजे की याचिका

कोरोना की दूसरी लहर के दौरान हुई मौतों के मामले में सुप्रीम कोर्ट ने बुधवार को अहम टिप्पणी की। कोर्ट ने मौखिक रूप से कहा कि ऐसा अनुमान नहीं लगाया जा सकता है कि महामारी की दूसरी लहर के दौरान कोरोना की वजह से होने वाली सभी मौतों के लिए चिकित्सकीय उपेक्षा जिम्मेदार है। ऐसा कहते हुए कोर्ट ने उस याचिका पर विचार करने से इनकार कर दिया, जिसमें महामारी के मुश्किल वक्त में ऑक्सीजन की कमी और जरूरी स्वास्थ्य सुविधाओं के अभाव में जान गंवाने वाले लोगों के परिजनों को मुआवजा देने की मांग की गई थी। याचिका दीपक राज सिंह की ओर लगाई गई गई थी। जस्टिस डी वाई चंद्रचूड़, जस्टिस विक्रम नाथ और जस्टिस हेमा कोहली की पीठ ने याचिकाकर्ता से अपने सुझावों के साथ सक्षम अधिकारियों के पास जाने और अपनी बात रखने के लिए कहा।

कोर्ट ने पाया कि कोरोना की दूसरी लहर ने पूरे देश को प्रभावित किया और ऐसे में इलाज में लापरवाही जैसे आम अनुमान का लगाया जाना ठीक नहीं होगा। पीठ के मुताबिक, जैसाकि याचिका में कहा गया है कि कोरोना की वजह से हुई सभी मौतें इलाज में लापरवाही की वजह से हुई, ऐसा अनुमान कोर्ट नहीं लगा सकता।

कोर्ट ने कोरोना महामारी से जुड़े उन मामलों का भी हवाला दिया, जिस पर स्वत: संज्ञान लिया गया है। कोर्ट ने कहा कि महामारी से जुड़े सभी पक्षों को देखने के लिए ही नेशनल टास्क फोर्स बनाई गई है। पीठ ने यह भी कहा कि शीर्ष कोर्ट ने कोरोना से पीड़ित परिवारों को मुआवजा देने के लिए 30 जून को आदेश भी जारी किया था। अपने 30 जून के फैसले में सुप्रीम कोर्ट ने माना था कि राष्ट्रीय आपदा प्रबंधन प्राधिकरण का एक वैधानिक दायित्व है कि वह कोरोना महामारी के पीड़ितों के लिए न्यूनतम अनुग्रह सहायता की सिफारिश करने के लिए दिशा-निर्देश तैयार करे।

इसके बाद याचिका पर विचार करने से इनकार करते हुए कोर्ट ने कहा कि उस फैसले में अदालत ने मानवता के संबंध में विचार किया है न कि लापरवाही के कारण। सरकार अभी तक नीति के साथ सामने नहीं आई है। यदि आपके पास उस नीति के कार्यान्वयन के संबंध में कोई सुझाव है, तो आप सक्षम प्राधिकारी से संपर्क कर सकते हैं।

Information sought by the husband to be placed before the District Court- Should be provided by Information officer- Bombay Highcourt

1. The petitioner is aggrieved by the direction dated 17.7.2017 issued by respondent No.1, directing the petitioner to submit the details about the salary /PF accumulations of the wife to respondent No.2 herein, who is litigating against his estranged wife.

 2. The strenuous submissions of the learned counsel for the petitioners is that no public interest is involved in the information sought by the second respondent / husband in relation to the earnings of the wife. Section 8(1)(e) and 8(1)(j) of the Right to Information Act, 2005 (RI Act) would absolve the petitioner from submitting any information to the said husband. WP/10690/2017 Reliance is placed on the judgment delivered by the Delhi High Court in the matter of Vijay Prakash Vs. Union of India and others [AIR 2010 Delhi 7], especially paragraph Nos. 20 to 23.12.2013. 

3. It is strenuously contended that the EPF Account holder under the Employees' Provident Fund and Miscellaneous Provisions Act, 1952 is the wife of respondent No.2. She is employed in Aditya Birla Minacs World Wide Limited. The details of her PF account have been supplied by the husband including the account number, establishment id and the name of the employee. What is sought is an information regarding the account statement of her PF accumulation. 

4. Shri Choudhary strenuously submits that no public interest is involved and the husband cannot seek this information as his case is covered by Section 8(1)(e) and (j) of the RI Act.

5. Having considered his submissions and having gone through the judgment cited, it needs mention that the husband is litigating against his estranged wife. In the ongoing litigation, with the intention of defending himself before the District Court, the husband moved the petitioner for seeking information as WP/10690/2017 regards the PF accumulations of his wife. By a cryptic order dated 19.5.2016, which does not contain reasons, except that the information sought is not required in public interest under Section 8(1)(e), his application was rejected. 

6. The first appellate authority by order dated 15.7.2016, again by a cryptic and unreasoned order, rejected the application of the husband under Section 8(1)(e) claiming that no public interest is involved. By the order dated 17.7.2017, the Central Information Commission has allowed the appeal of the husband and has concluded that the information sought is personal information and it needs to be supplied.

 7. Section 8(1)(e) and (j) of the RI Act reads as under:"8. Exemption from disclosure of information.-(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,                           (a)    .....................                            (b)    .....................                            (c)    .....................                            (d)    .....................                            (e)    information   available   to   a   person   in                             his   fiduciary   relationship,   unless   the  competent authority is satisfied that the WP/10690/2017 larger public interest warrants the disclosure of such information; (f) (g) (h) (i) (j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person."

8. Information available to a person in his fiduciary relationship can be withheld. There is no fiduciary relationship between a husband and his wife. Section 8(1)(e) would therefore, not entitle the petitioner for withholding the information regarding PF accumulation. 

9. Learned counsel for the petitioner has canvassed Section WP/10690/2017 8(1)(j) by contending that there would be no obligation on the petitioner to give any citizen any information which relates to the relationship or privacy of an individual as it would cause unwarranted invasion of the privacy of the individual. 

10. The Delhi High Court was dealing with the information being sought by a husband in relation to his wife, who was an employee of the Indian Air Force. The said information was sought under Section 8(1)(j) and that was in relation to her services with the Indian Air Force. The Air Vice Marshall of the Indian Air Force, who was the designated appellate authority, refused to supply the information sought as it was, firstly, not in public interest and secondly, it was in relation to her service with the Indian Air Force. On the basis of the 'public interest argument' of the husband, the information pertaining to her service with the Indian Air Force was not supplied as the same could not have been used in a private dispute. 

11. In the instant case, the husband is seeking information with regard to his wife, specifically in relation to a private dispute, which is said to be under the Protection of Women from Domestic Violence Act, 2005. It also cannot be ignored that in matters of statutory contributions under acts like the Payment of WP/10690/2017 Gratuity Act, 1972 and the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 ("1952 Act"), a nominee of the employee has to be stated. This indicates that the husband or wife in their inter se relations, could be a nominee of the partner who is in employment. 

12. Though this information is not before this Court, the contention of the petitioner will have to be tested as to whether the said contention could be referable to Section 8(1)(e) or 8(1) (j) contending that personal information cannot be disclosed to a citizen if it is not in public interest. The claimant / husband cannot be termed as a third party citizen. He is the husband of the employee, whose PF details are being sought. The petitioner's case, within the framework of Section 8(1)(e), fails. 

13. Section 8(1)(j) was never canvassed by the petitioner before any of the authorities below, except in this Court for the first time. I am considering the submissions of the petitioner even under Section 8(1)(j) since law need not be pleaded.

 14. Testing the case of the petitioner under Section 8(1)(j), the petitioner would not be obliged to give any information to an unrelated citizen if it causes unwarranted invasion on the privacy WP/10690/2017 of an individual. 

15. The Honourable Apex Court in the matter of Bihar Public Service Commission Vs. Saiyed Hussain [2012 (13) SCC 61], has considered Section 8 and has concluded that the Act provides for a free access to information with the object of making governance more transparent and accountable. Information sought is normally to be supplied unless the right to information is subjected to inbuilt restriction within the Statute itself. The right to information would not be an uncontrolled right and the constitutional limitation enshrined in Article 21 of the Constitution of India would have to be balanced with the right to privacy. The authority withholding information has to apply it's mind and form an objective opinion. 

16. It is further held in the Bihar PSC case (supra) that fiduciary relationship refers to a person having the duty to act for the benefit of another, showing good faith and candour when such other person reposes complete trust and special confidence in a person discharging duties. Disclosure of personal information could be restricted so as to avoid unwarranted invasion of the privacy of an individual by supplying information to a third party. WP/10690/2017 

17. In the matter of R.K.Jain Vs. Union of India [2013 (14) SCC 794], the Honourable Apex Court concluded that the authority has to decide whether confidential information could be disclosed to a third person. It also has to consider whether such disclosure would amount to the invasion of the privacy of a public servant. It is the prerogative of the competent authority to decide whether the disclosure of such information would open gates of privacy to a third party. 

18. It cannot be lost sight of in this case that the relation between the person seeking information of the lady, who is employed in a private company, is that of a husband and wife. On account of a marital discord, the wife has dragged the husband before the District Court. For the purposes of his litigation, the husband requires the information about the salary and provident fund accumulations of the wife. Such information could also be acquired by the husband by making an application before the District Court. Rather than perpetuating the hardships of the husband, the CIC has found it fit to direct the petitioner to disclose the said information. 

19. In this backdrop, it is imperative that the petitioner must WP/10690/2017 first come to a conclusion, either under sub-clauses (e) or (j) of Section 8(1) that the information is confidential and cannot be disclosed. It is only when the competent authority justifies the non-disclosure under the first part of sub-clauses (e) or (j) that that the second part in the said sub-clauses would have to be considered to the extent of whether the information is required to be disclosed in larger public interest. In my view, the petitioner has failed in the first place to justify it's refusal to disclose the information. The husband seeking information cannot be said to be a stranger or a third party. The information sought by him also cannot be said to be confidential. 

20. In my view, if matrimonial matters are being prosecuted by the parties, there should not be any embargo on divulging the PF accumulations of the wife since the said information is sought by the husband to be placed before the District Court. It also cannot be ignored that the wife is not before this Court and has not challenged the impugned order.

21. Considering the above, I do not find that the stand taken by the petitioner would fall either under Section 8(1)(e) or Section 8(1)(j). 

 22. This petition being devoid of merits is, therefore, dismissed.

Amendment application to amend reply-rejected- Rajasthan High court

Civil Procedure Code, 1908, Order 6, Rule 17 - Amendment of reply - Petitioner tenant produced notice alleged to have been sent by landlord to co-sharer regarding rent due and security deposit of tenants - Petitioner preferred application seeking leave to amend reply so as to incorporate pleadings relating to said notice - Petition submitted by petitioner reveals that factum of default in payment of rent has been specifically denied by him - In additional pleas, specific averment has been made that sum of Rs. 2,41,000 was deposited by petitioner with landlord - Documents produced, if same have any evidentiary value, can always be relied upon by petitioner in support of defence set out in reply to petition - No specific pleadings in respect of documents in question need to be incorporated inasmuch as, relevance thereof is pleaded by petitioner in respect of specific stand already taken in reply to petition - Petition dismissed.

SC registers PIL based on a young girl’s letter to CJI Ramana

The Supreme Court of India has registered a PIL to consider issues surrounding the reopening of courts for physical hearings.

The PIL is based on a letter written by a young girl to CJI NV Ramana stating how schools have reopened, but courts are reluctant to resume physical hearings.

SC Judge Vineet Saran released this information during a Bar Council of India function to facilitate CJI Ramana.

Since the onset of the pandemic, courts in the country have been functioning through virtual hearing mode. Even though many courts have resumed limited physical hearing, the bulk of the cases are heard virtually

From 1st September, the Apex Court has resumed limited physical hearing through hybrid mechanisms. As per the hybrid mechanism, lawyers now have the option to either appear physically or virtually.

It cannot be said that the hybrid model has been perfect, as many lawyers still prefer to argue cases virtually.

In another matter pending in the Apex Court, it is stated that the right to appear virtually is a fundamental right under Article 19(1)(a) of the Indian Constitution.

Civil Suit regarding public nuisance and wrongful act

Civil Procedure Code, 1908 Section 91 Suit for declaration and injunction or for such other relief - With regard to the public nuisance or other wrongful act affecting or likely to affect the public may be instituted with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act - Provision, prescribed under Section 91 of Civil Procedure Code deals with public nuisance or other wrongful act which affects a considerable number of people - Advocate General or two or more persons with the leave of the Court may bring a suit either for a declaration or injunction or for any other relief irrespective of any special damage - It, appears from aforesaid provision that for the institution of a valid suit, leave of the Court is a condition precedent and there would be no properly instituted suit under the aforesaid provision before the leave is granted.

(LMASLFD1757210)