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Vol-IV Part-3

March, 2009

IMPORTANT CASE LAWS

Compiled by

Tamil Nadu State Judicial Academy Chennai ­ 28

SUPREME COURT CITATIONS

(2009) 2 SC 562 S.SATNAM SINGH AND OTHERS Vs. SURENDER KAUR AND ANOTHER. A. Civil Procedure Code, 1908 ­ Sections 2(2), 97, 152 & Or.20R. 18(2) ­ Inclusion of property in the list of properties after a preliminary decree is passed in a partition suit ­ Permissibility of, discussed ­ In a suit for partition, written statement was filed and subsequently amended whereby another property known as BCC was also included ­ In preliminary decree, the property BCC left out by trial court ­ Application filed by the defendant under Section 152 Or. 20R.18 for inclusion of BCC in the preliminary decree allowed by trial court and decree amended accordingly ­ In revision High court set aside order of trial court ­ Held, as no issue regarding BCC was framed, trial court rightly rectified its mistake by amending the decree to that effect ­ Order of High Court not sustainable ­ Further held, courts must be ready and willing to rectify their mistakes ­ Maxims ­ Actus Curiae neminem gravabit B. Civil Procedure Code, 1908 ­ Sections 2(2), 97, 151 & ORd.20 R.18(2) ­ Preliminary decree, finality of ­ Subsequent events, regard to ­ Courts may in certain situation amend the preliminary decree ­ Section 97, held not a bar to entertain an application for amendment of a decree. C. Civil Procedure Code, 1908 ­ Section 2(2) ­ "Decree", ingredients of and test to be applied to ascertain whether an "order" is a "decree" or not, explained.

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(2009) 2 SC 570 ROOP SINGH NEGI Vs. PUNJAB NATIONAL BANK AND OTHERS A. Service Law ­ Departmental enquiry ­ Nature of ­ Held, is a quasijudicial proceeding B. Service Law ­ Departmental enquiry ­ Enquiry officer ­ Function of ­ Held, is quasi-judicial in nature C. Service Law ­ Departmental enquiry ­ Documentary evidence ­ Manner in which required to be proved ­ Held, mere production of documents is not enough ­ Contents of documentary evidence has to be proved by examining witnesses ­ Further held, FIR in itself is not an evidence without actual proof of facts stated therein ­ Criminal Procedure Code, 1973, S.154. D. Service Law ­ Departmental enquiry ­ Admission / Confession Proof of ­ Appellant alleged to have confessed to police that he was involved in stealing of bank draft book ­ Held, so-called confession itself was not sufficient ­ Some evidence ought to have been brought on record that appellant was involved in stealing ­ Evidence Act, 1872 ­ S.25 E. Service Law ­ Departmental enquiry ­ Duty to record reasons ­ Held, orders of disciplinary authority and appellate authority entails civil consequences ­Hence, the orders must be based on recorded reasons.

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F.

Service Law ­ Departmental enquiry ­ Admission/Confession of charged employee ­ Held, if admission made by charged employee before police authorities was taken into consideration, his subsequent acquittal by Criminal court on the selfsame evidence could not be ignored ­ Evidence Act, 1872, S.25

G.

Service Law ­ Departmental enquiry ­ Appreciation of evidence ­ Conclusions to be based on evidence ­ Held, enquiry report, if based conjectures and surmises, cannot be sustained.

H.

Service Law ­ Departmental enquiry ­ Standard of proof ­ Suspicion howsoever high, held, cannot be a substitute for legal proof.

I.

Service Law ­ Departmental enquiry ­ Applicability of Evidence Act, 1872 ­ Held, said Act is not applicable but enquiry has to be conducted according to principles of natural justice ­ Evidence Act, 1872.

J.

Service Law- Reinstatement ­ Back wages ­ Full back wages ­ Awarding of, when justified ­ Appellant, a Peon in respondent Bank, found to have been dismissed from service without proper enquiry ­ Reinstatement ordered with full back wages.

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2009 (2) MLJ 716 (SC) CHANDRASHEKAR Vs. STATE OF KERALA Constitution of India (1950), Article 226 ­ Writ ­ Service ­ State ­ Public Undertaking ­ Non-Pensionable post ­ Officer ­ Resignation ­ Subsequent revision of pay scales by Union Government for top executives ­ No directive to apply to Public Undertaking ­ Not to apply to officer ­ Resignation and retirement ­ Distinction. 2009 (2) MLJ 724 (SC) C.JACOB Vs. DIRECTOR OF GEOLOGY & MIN. INDUS EST. AND ANOTHER WITH L.A.NO.1 Tamil Nadu Civil Services (Discipline and Appeal) Rules ­ Tamil Nadu Pension Rules (1978), Rule 43(2) ­ Termination of service of petitioner / employee in 1982 ­ Petitioner kept quiet for 18 years after termination and made representation in 2000 claiming that he should be taken back to service ­ On rejection of said representation, he filed writ petition of said representation, he filed writ petition in 2005 claiming service benefits by referring said order of rejection as cause of action ­ Writ petition disposed of by declaring that petitioner deemed to have retired form service and directing pension to be sanctioned ­ Impugned order allowing writ appeal by holding that petitioner was not entitled to pension ­ Modus of representation adopted by petitioner to get over bar of limitation/delay and laches not proper ­ Provision relating to retiring pension makes it clear that minimum of 20 years qualifying service required for retiring pension ­ It does not entitle a Government servant to retiring pension on completion of ten years service ­ As such, Petitioner / employee not entitled to pension ­ Special leave petition dismissed as having no merit.

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2009 (2) MLJ 750 (SC) GULLIPILLI PAVANI SOWRIA RAJ VS. BANDARU PAVANI @ GULLIPILLI

Hindu Marriage Act (25 of 1955), Sections 2,4,5,8,11 ­ Validity of marriage entered between a Hindu with Christian under the Hindu Marriage Act, 1955 ­ Marriage registered under Section 8 of the Act ­ High Court by the impugned order held marriage is void ab initio ­ Appellant / Husband was and still a Christian belonging to the expression `may' in Section 5 of the Hindu Marriage Act, 1955 ­ Indicates that a marriage can be solemnized between two Hindus if the conditions indicated were fulfilled ­ Expression `may' used in Section 5 is mandatory and nonfulfillment would not permit a marriage under the Hindu Marriage Act, 1955 between two Hindus ­ Marriage was a nullity ­ Order of High Court justified.

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HIGH COURT CITATIONS

2009 (2) CTC 45 N.Balammal Vs. Perinbamuthu and Others. Specific Relief Act, 1963 (47 of 1963) ­ Law of Contracts ­ Document projected as an Agreement of Sale ­ Whether it amounts to Agreement of Sale ­ Absence of signature of both parties and even bare or minimal recitals relating to Agreement to Sell and also description of property document cannot be said to be an Agreement of Sale ­ Held, Agreement to sell not proved. 2009 (2) CTC 65 V.Srinivasan Vs. E.S.Gunasekar. Evidence Act, 1872 (1 of 1872), Section 45 ­ Negotiable Instruments Act, 1881 (26 of 1881), Section 138 ­ Proceedings pending under Section 138 of Negotiable Instruments Act ­ Accused seeking to send cheques to handwriting expert ­ Defence not taken during initial questioning or during Section 313, Cr.P.C. questioning or in reply to statutory notice ­ Application, held, belated and order of Judicial Magistrate confirmed. 2009 (2) CTC 68 1.Sivagangai Municipality, rep. by its President, Sivagangai Municipality, Sivagangai 2. Sivagangai Municipality, rep. by its Commissioner, Sivagangai Municipality, Sivagangai. Tamil Nadu District Municipalities Act, 1920 (5 of 1920) ­ Law of Injunctions ­ Effect of cancellation of license pending Suit ­ License period valid up to 31st March 2009 ­ Licensee filing Suit to restrain Municipality/licensor from preventing collection of amount from daily market ­ Notice ordered in Injunction Application ­ Licensor / Municipality after entering appearance and taking time for counter choosing to cancel license ­ Trial Court granting interim injunction ­ Held, in Revision, by Municipality that action of Licensor / Municipality acts overreaching Court proceedings not to be permitted ­ Revision dismissed confirming injunction granted by Trial Court.

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2009 (2) MLJ 665 S.M.Narasingam and Other Vs. S.M.Sridharan and Others. Code of Civil Procedure (5 of 1908), Order 26 Rule 9 and Section 151 ­ Rejection of prayer for comparing signatures in admitted documents to decide issues involved in suit regarding disputed signatures ­ Also rejection of prayer for appointing Advocate Commissioner ­ Request for sending documents out of Court for verification in presence of Advocate Commissioner rejected ­ Revision Petitions ­ Court bound to do justice to parties which can be achieved only on verification of signatures by Handwriting expert ­ Reason given by Court below that on any circumstance documents cannot be sent out of Court, unsustainable ­ Court below ought to have appointed Advocate Commissioner to get documents from Court and ought to have directed Government Expert to verify same in presence of Advocate Commissioner ­ Revision Petitions allowed. 2009 (1) TLNJ 425 (CIVIL) S.Priya Vs. K.Satish Kumar Hindu Marriage Act 1955 ­ Section 24 ­ In husband's divorce petition wife sought interim maintenance ­ Family Court awarded Rs.2000/- - on revision High Court expressed that wife and child are entitled to live in commensurate with the status of the husband ­ Interim maintenance not an eyewash or "sheer namkevasta" but should be reasonable and to live comfortably ­ CRP is allowed. 2009 (1) TLNJ 449 (CIVIL) Palaniyandi Chettiar Vs. 1. C.Natarajan, Family Manager 2. Arumugham Chettiar Civil Procedure Code 1908 as amended ­ Section 100 ­ The Normal Rule is that concurrent findings should not be interfered with ­ A person having an easementary right by grant cannot claim absolute right ­ Both easementary right and right of adverse possession cannot go together ­ Hence Second Appeal dismissed.

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2009 (1) TLNJ 454 (CIVIL) Bajaj Allianz General Insurance Co. Ltd., Vs. 1. K.Sundararaj 2.Minor S.Selvamani 3. Minor S.Selvakumar (Minors 2 and 3 through their father and next friend, the 1st respondent) 4. The Group Manager, The Bombay Burmah Trading Corporation Limited, Singampatti Group. Workmen's Compensation Act 1923 ­ Section 30 ­ Award of the DC Workmen Compensation set aside since the award is not based on proper material ­ The Post Mortem Report which is an important document was not produced ­ Hence in the absence of Post Mortem Report, casual connection between injury and accident in the course of Employment not established ­ Hence CMA is disposed, remitting the matter back to DC for proper disposal based on the production of Post Mortem Report by the claimants. 2009 (1) L.W.997 Sambhaji & Others Vs. Gangabai & Others. Code of Civil Procedure (1908), as amended by Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976), Order 8, Rule 1, Section 122 ­ Rule 1 after the amendment casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days ­ Such provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for ­ Object is to expedite the hearing and not to scuttle the same. 2009-1 L.W.1002 Komalam Amma Vs. Kumara Pillai Raghavan Pillai and Others Hindu Adoptions and Maintenance Act (1959), Section

3(d)/"Maintenance", includes food, clothing, residence, T.P.Act (1882), Section 39/Statutory charge, Scope - Held: Maintenance must encompass a provision for residence ­ Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed ­ The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head.

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(2009) 2 MLJ 555 St.Mary Goretty Higher Secondary School, rep. by its Correspondent, Kanyakumari Dist. Vs. Government of Tamil Nadu, rep. by its Secretary, School Education Department, Chennai and others. Tamil Nadu recognized Private Schools (Regulation) Act (29 of 1974), Section 26 ­ Teachers appointed in sanctioned posts and granted necessary approval ­ They are entitled to salaries, even if the school is having less number of students ­ Director of School Education not correct in declaring that the posts were surplus ­ Writ petitions partly allowed. (2009) 2 MLJ 560 A.Padmanabhan Vs. Joint Commissioner of Labour, (Appellate Authority under the Payment or Gratuity Act), Labour welfare Buildings, Teynampet, Chennai and Another. Payment of Gratuity Act (39 of 1972), Section 4(6)(b)(II) ­ Gratuity ­ Forfeiture of ­ Employee dismissed from service for misconduct ­ Order of dismissal confirmed till the stage of Supreme Court ­ Gratuity for feited for the proven dishonesty ­ Order challenged in writ petition ­ Misconduct of the employee cannot be said to be depravity of character involving moral turpitude ­ Gratuity payable, cannot be deprived ­ Writ petition allowed. (Readed.) (2009) 2 MLJ 589 Mohammed abdur Raheem @ Ramuvel Vs. State Bank of India, rep. by its Chief General Manager, Chennai and Another. Constitution of India (1950), Article 226 ­ Banking Regulation Act 10 of 1949), Section 10(1)(b)(i) ­ Discharge from Service ­ Petitioner's services were dispensed with on ground of his conviction by Criminal Court under section 498A IPC and Section 4 of Dowry Prohibition Act (28 of 1961) ­Contention of petitioner that his conviction for said offences does not involve moral turpitude ­ Said contention not acceptable ­ Demanding and accepting dowry is certainly an offence involving moral turpitude ­ So also contention that he cannot be discharged from service since he had his sentence suspended pending appeal, is not acceptable ­ Writ petition dismissed.

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(2009) 2 MLJ 593 P.Varadharajan Vs. Unit Officer, National Project Construction Corporation Ltd., Chennai and Another. Constitution of India (1950), Article 226 ­ NPCC Employees (Payment of Gratuity) Rules (1975), Rule 6 (c) - Payment of Gratuity ­ Writ Petition seeking direction to respondents to pay petitioner's gratuity ­ Petitioner retired on voluntary retirement in 1994 ­ Delay in filing writ petition ­ Moreover having regard to Rule 6(c) of Rules of 1975, petitioner not entitled to relief sought for in writ petition ­ Petition dismissed. (2009) 2 MLJ 600 Sri Sabanayagar Temple, Chidambaram, Rep. by its Secretary of Podhu Dikshidar, Chidambaram and others. Vs. State of Tamilnadu, Rep. by Secretary, Department of Tamil Development, Religious Endowments & Information Department, Chennai and Others. (A) Constitution of India (1950), Article 26 ­ Tamil Nadu Hindu Religious and Charitable Endowments Act (22 of 1959), Section 107 ­ Impugned Government Order appointing Executive Officer for the temple under challenge ­ Respondents contended appointment was only to streamline administration and not to replace Podhu Dikshidars from the Temple ­ About the temple and the priests of the temple, `Dikshidars' ­ Suit temple is a public Institution and not a private temple as per findings recorded in earlier litigations ­ Temple established by `Chola Kingdom' ­ Nothing to show that Podhu dikshidars have established the temple, concerned temple is shown to be a `denomination temple' ­ Regulation in administration of properties ­Distinction between religious practice and secular activities of religious Institution ­ Form of worship may be protected under Article 25 and 26(a) of Constitution ­ But right to manage the temple or offerings or Kattalais (endowments) are amenable to statutory control, as has been held by the Supreme Court that the secular activities are subject to statutory control- Appointment of Executive

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officer not ultra vires the Article 25 and 26 of the Constitution of India ­ Commissioner satisfied himself as to the necessity of appointing Executive Officer ­ Acts of mismanagement are writ ­ Large and not imaginary one ­ Failure to perform the lawful duties under Section 28 of the Act ­ No action taken by petitioners for enforcement of Kattalais ­ It is not as if by the appointment of Executive Officer, Podhu Dikshidars are displaced from the temple in performance of rituals or administration ­ Order has not infringed the rights of Podhu Dikshidars nor violative of provisions of Hindu Religious Endowments Act, 1959 warranting interference ­ As per the Government Order, reciting Devaram and Thiruvasagam inside the temple is a valuable right of devotees - Impleading petitions allowed ­ Writ petition dismissed. (B) Constitution of India (1950), Article 26 ­ For the purpose of invoking Article 26 Podhu Dikshidars have to prove that they established the temple and maintained it ­Burden of proof lies upon them. ­ No piece of evidence produced by them. (C) Tamil Nadu Hindu Religious and Charitable Endowments Act (22 of 1959), Sections 45, 45(1) ­ Power of Commissioner ­ To be exercised in terms of the policy of the Act ­ Natural justice and fair play require that Commissioner should properly exercise the power after being satisfied that the Institution is not properly managed and the administration requires toning up or improving.

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