My Lord, Independent of the provisions contained in Codes of Civil and Criminal Procedure is there a source of power which the Supreme Court can invoke for directing transfer of a case from or to the State of Jammu and Kashmir? Yes. “The fact that there is no such enabling provision for transfer from or […]Read more "The Real Apprehension in Transferring Cases II"
“An application under Order 7, Rule 11 can be filed at any stage. The only restriction is that the consideration of the application for rejection should not be on the basis of the allegations made in the written statement or on the basis of the allegations in the application for rejection of the plaint. The […]Read more "The Drastic Power of Rejecting a Plaint II"
“It is not open either to parties to a lis or to any third parties, to determine at their own, that an Order passed by a Court is valid or void. A party to the lis or a third party, who considers an Order passed by a Court as void or non est, must approach […]Read more "Setting Aside Orders"
‘Res judicata’ literally means a ‘thing adjudicated‘ or ‘an issue that has been definitively settled by judicial decision‘. The principle operates as a bar to try the same issue once over. It aims to prevent multiplicity of proceedings and accords finality to an issue, which directly and substantially had arisen in the former suit between the […]Read more "Res Judicata – Cause of Action – Doctrine of Ouster"
My Lord, What is the meaning of the expression “specific provision to the contrary” in Section 4(1) of The Code of Civil Procedure, 1908? The scheme of Section 4(1), as its marginal note provides, is to ‘save’ any special or local law from the applicability of The Code of Civil Procedure. The said Section therefore […]Read more "Section 4(1) of The Code of Civil Procedure, 1908"
Last month, I hesitated in characterizing why New India Assurance was an uncomfortable decision. Dave, Sen and Ghose JJ were clear that Kailash, (2005) 4 SCC 480 “ought to have respected the view expressed” in J.J. Merchant, (2002) 6 SCC 635. Kailash has been an important tool in my hands in civil suits. Procedure can […]Read more "Kailash v. Nanhku, (2005) 4 SCC 480"
My Lord, Can a High Court impose costs of Rs. 10 Lakhs for the filing of a false or misleading affidavit? Yes. “A global search of cases pertaining to the filing of a false affidavit indicates that the number of such cases that are reported has shown an alarming increase in the last fifteen years as […]Read more "Filing False Affidavits"
“Seeking transfer at the drop of a hat is inconceivable. An order of transfer is not to be passed as a matter of routine or merely because an interested party has expressed some apprehension about proper conduct of the trial. The power has to be exercised cautiously and in exceptional situations, where it becomes necessary […]Read more "The Real Apprehension in Transferring Cases I"
“What has been stated in paragraph 31 in the case of J.S. Yadav, (2011) 6 SCC 570 [as per B.S. Chauhan J.] does not even follow from the authorities referred to therein. We have explained the authority in J.S. Yadav and opined that it has to rest on its own facts keeping in view the declaratory […]Read more "A Subsequently Appointed Employee : A Necessary Party?"
My Lord, Defendant can always Defend? “In cases where the Defendant has raised a triable issue or a reasonable defence, the Defendant is entitled to ‘unconditional leave to defend’; leave is granted to defend even in cases where the Defendant upon disclosing a fact, though lacks the defence, makes a positive impression that at the […]Read more "Unconditional Leave to Defend"
Paragraph 37, Salem Advocate Bar Association v. Union of India, (2005) 6 SCC 344: “Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded on the unsuccessful party. Unfortunately, it has become a practice to direct parties […]Read more "Costs Jurisprudence I: Actual Reasonable Costs"
The Yajnavalkya Smriti classifies concubines into two types: (1) Avaruddha and (2) Bhujasya. An Avaruddha Stree operates under an injunction to stay at the master’s home whereas a Bhujasya is not kept in the house but elsewhere. There is some protection for an Avaruddha Stree in modern India. There is a presumption in favor of […]Read more "Masterly Concubinage I"
“Rejection of the plaint under Order 7, Rule 11 is a drastic power conferred in the Court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order 7, Rule 11 therefore, are stringent and have been consistently held to be so by the Court. It is the […]Read more "The Drastic Power of Rejecting a Plaint I"