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1968 (11) TMI 117 - MADHYA PRADESH HIGH COURT
... ... ... ... ..... se to exercise its jurisdiction under Article 226, if the petitioner did not avail of alternative remedies, but the rule requiring the exhaustion of alternative remedies before the writ will be issued is not a rule of law but is a rule of policy, convenience and discretion. The High Court will readily issue a writ of certiorari in a case where there has been a denial of natural justice; State of U. P. v. Mohd. Nooh AIR 1958 SC 86. In the instant case, we have already held that the Collector in cancelling the petitioner's licence, did not follow the requirements of natural justice. This defect is funda-imental and it would not be a sound exercise of discretion to refuse to interfere simply on the ground that the petitioner could have gone up in appeal. The petition is allowed. The order of the Collector cancelling the petitioner's licence is quashed. There will be no order as to costs of this petition. The amount of security deposit shall be refunded to the petitioner.
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1968 (11) TMI 116 - MADHYA PRADESH HIGH COURT
... ... ... ... ..... vernment to appoint any person as a Public Analyst by name. It can be done even by virtue of his office also. It is also true that certain qualifications are prescribed for appointment as a Public Analyst and the accused had not taken any objection whatsoever in the trial Court that Shri Dutta was not so qualified. That being the position, and it being a question of fact, it cannot be allowed to be raised here. In view of the aforesaid discussion, we are of the view that the view taken by the learned Sessions Judge in acquitting the accused in both the cases was erroneous, and the conviction and sentence awarded to the respondent by the learned Magistrate in both the cases was proper. Consequently, both the appeals are allowed; the impugned orders of acquittal passed by the learned Sessions Judge in both the appeals are hereby set aside, and the conviction and sentences awarded to the accused-respondent by the learned Magistrate in both the criminal cases are hereby restored.
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1968 (11) TMI 115 - SUPREME COURT
... ... ... ... ..... en retrenchment took place. We have no doubt in our mind that some of the findings arrived at by the Tribunal and which influenced its verdict were beyond its competence. The rest were either speculative or contrary to the evidence on record and were consequently liable to be set aside in a writ petition for. certiorari. The Division Bench of the High Court, therefore, was not correct in its view that the learned Single Judge could not interfere with those findings or that such findings did not fall under one or the other recognized grounds justifying the High Court's interference. In the result we allow the appeal, set aside the order passed by the Division Bench and restore the order passed by the learned Single Judge including his order of remand to the Tribunal to prepare a list of 52 persons liable to be retrenched in accordance with the principle of "last come first go". In the circumstances of the case we do not make any order as to costs. Appeal allowed.
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1968 (11) TMI 114 - CALCUTTA HIGH COURT
... ... ... ... ..... forgotten that under Section 34, not only there must be readiness and willingness to go to arbitration at the time when the proceedings were commenced, but such readiness and willingness must continue. Here, no stay has been obtained in the Court below and an appeal has been preferred. The entire matter, therefore, is open before us. We have the same rights as those of the Court below. If this appeal succeeds, then we shall have to make an order for stay, and we cannot ignore the wordings of Section 34 which requires that the parties applying must "still remain ready and willing to go to arbitration". By asking for directions in the suit itself, the applicant must be taken to have expressed a desire to go on with the suit. In our opinion, the preliminary point is a valid one and should be upheld. 6. The result is that this appeal fails and is dismissed with costs. 7. The operation of the order will remain stayed for six weeks from this date. S.C. Deb, J. 8. I agree.
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1968 (11) TMI 113 - MADRAS HIGH COURT
... ... ... ... ..... r Section 6 of the Rent Act is one thing. The contractual liability as a consideration for the demise is an entirely different thing and, here, for the purpose of Section 30 of the Act, to take the premises out of the Rent Act, what has to be found is the agreed or contractual rent. There is no admissible evidence that the contractual rent is different from what is stipulated in the lease deed. If the extra municipal tax of ₹ 1,212 cannot be treated as rent, the rent paid falls below a monthly rent of ₹ 400. It follows that the premises was not exempted from the provisions of the Rent Act, when the appellant filed their application for the fixation of fair rent. The Chief Rent Controller has, therefore, jurisdiction to entertain and dispose of on its merits the fair rent application filed by the appellants. 12. In the result the writ appeal is allowed with costs. The rule nisi is discharged and the writ petition dismissed with costs. Counsel's fee ₹ 250.
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1968 (11) TMI 112 - RAJASTHAN HIGH COURT
... ... ... ... ..... ion relating to the returned candidate. I further hold that the prayer being not legally permissible and no valid prayer, the respondent No. 1 or any other party to the election petition did not acquire any right to file recrimination petition and that the recrimination petition, therefore, is also not maintainable. I, therefore direct that the prayer in the election petition relating to the declaration about the respondent No. 1 as having been duly elected be deleted. The recrimination petition becomes non-maintainable and is dismissed. Although the respondent No. 2 succeeds but having regard to his earlier full support to the petitioner's petition and the facts and the circumstances of the case, I do not pass any order as to costs. In passing, it may be mentioned that although the respondent No. 2 wanted that a formal issue of law should be framed, I heard the counsel for the parties at length on the controversy raised without framing an issue on a pure question of law.
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1968 (11) TMI 111 - SUPREME COURT
... ... ... ... ..... f the suit is not ab initio void it is voidable. As stated in Latey on Divorce, 14th Edn., at p. 194, Article 353 "Where impotence is proved the ceremony of marriage is void only on the decree absolute of nullity, but then it is void ab initio 'to all intents and purposes'. Such a marriage is valid for all purposes, unless a decree of nullity is pronounced during the life-time of the parties." 22. When the letters were written by Poonan to Rathi, they were husband and wife. The bar to the admissibility in evidence of communications made during marriage attaches at the time when the communication is made, and its admissibility will be adjudged in the light of the status at that date and not the status at the date when evidence is sought to be given in Court. 23. We are, therefore, of the view that the appeal must be allowed and the order passed by the High Court set aside. The proceedings will be remanded for trial to the District Magistrate according to law.
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1968 (11) TMI 110 - SUPREME COURT
... ... ... ... ..... n the aforesaid provisions. The court, however, has to be very careful and circumspect in weighing the evidence where there has been such a failure on the part of the investigating agency but unless and until some prejudice is shown to have been caused to the accused person or persons the conviction and the sentence cannot be set aside. It may not be out of place to reiterate what was said in H.N. Rishbud and Inder Singh v. The State of Delhi( 1955 1 S.C.R, 115), that a defect or an ii.legality in the investigation, however serious, has no direct bearing on the competency or the procedure relating to cognizance or trial of an offence and that whenever such a situation arises, s. 537 of the Code of Criminal Procedure is attracted and unless the irregularity or the illegality in the investigation or trial can be shown to have brought about a miscarriage of justice, the result is not affected. For the above reasons this appeal fails and it is dismissed. V.P.S. Appeal dismissed.
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1968 (11) TMI 109 - SUPREME COURT
... ... ... ... ..... by the State Government under s. 11 (1 ) of the Act in the case of these seven petitioners also are illegal and ultra vires and these petitioners are also entitled to be set at liberty forthwith. As regards the cases of the remaining petitioners, nos., 8, 9 and 21, Chandan P. Sharma, Sk. Sahajahan and Bind Parmeshwar Prasad, alias Bindeshwari Prosad respectively, we have persued the orders of detention and the grounds supplied to these petitioners. It is not shown by learned Counsel on their behalf that there is any illegality in the orders of detention or in the subsequent procedure followed for confirming these orders. In our opinion, no ground is made out for grant of a writ of habeas corpus so far as these petitioners are concerned. Their applications for grant of a writ of habeas corpus are accordingly rejected. We desire to say that we requested' Mr. Kohli to assist us on behalf of the petitioners and we are indebted to him for his assistance. Petitions dismissed.
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1968 (11) TMI 108 - MADRAS HIGH COURT
... ... ... ... ..... 493(1). In my opinion, none of these decisions supports the case of the appellants in this case. These decisions merely lay down that under Order 21, Rule 66 , Civil P. C., the Court has an obligation to mention the valuations given by the decree-holder as well as by the judgment debtor, but it cannot designate both these valuations as upset price. On the other hand, Mr. Balasubramaniam was not able to bring to my notice any decision of this Court holding that failure to give notice of an application to reduce the upset price will constitute material irregularity or fraud either in the publication or conduct of the sale, so as to enable the judgment-debtor to have the sale set aside under Order 21, Rule 90, Civil P. C. Under these circumstances, I am of opinion that the conclusion of the lower Court on this point is correct and does not call for any Interference. 7. No other point was urged before me and hence the appeal is dismissed. But there will be no order as to costs,
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1968 (11) TMI 107 - MADRAS HIGH COURT
... ... ... ... ..... 12 of the plaint refers to the total damages of ₹ 38,455-16 as falling under the two heads mentioned in the two prior paragraphs. The claim against the Southern Railway for the entire compensation claimed in the suit is one falling under Article 30 of the Limitation Act. We, therefore, fail to see how the claim for compensation for the loss of duty paid by the plaintiff in respect of which he could have got refund, if the goods had been exported outside India, would stand independent of the compensation for injury to take goods. 10. For the foregoing reasons, the decree and judgment in both the suits, O. S. No. 5 of 1959 and O. S. No. 56 of 1960, on the file on the Sub-Court, Tirunelveli, are set aside and the suits are dismissed on the ground that they are barred by limitation. But, in view of the fact that the appellant-railway succeeds only on the question of limitation, we direct the parties in each of the appeals to bear their respective costs in both the Courts.
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1968 (11) TMI 106 - SUPREME COURT
... ... ... ... ..... The learned counsel for the respondent says that at any rate the Act does not contemplate persons applying for permits Benami. In India Benami transactions are recognised and not frowned upon (See Gur Narayan v. Sheolal Singh). (1919) 46 Cal 566 In C.I.T., Gujarat v. Abdul Rahim and Co. 1965 55ITR651(SC) , it was held by the court that the registration of the partnership deed under Section 26-A of the Indian Income Tax Act, 1922, could not be refused on the ground that K was the Benamidar of V. 12. We see nothing in the Act which expressly or by implication bars Benami transactions or persons owning buses Benami and applying for permits on that basis. 13. In the result the appeal is allowed, the decree of the High Court set aside and the decree passed by the District Judge restored. We may mention that Mr. Sen did not press the claim regarding the fifth bus No. MDU 4069. The appellant will have half cost in this court. The parties will bear their own costs in the High Court.
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1968 (11) TMI 105 - PATNA HIGH COURT
... ... ... ... ..... s for this amount. 33. In the result, the appeal is allowed in part and the judgment and decree of the Court below are modified. The plaintiff-respondent will have a decree against the defendants for a sum of ₹ 43,281.97 P. (Rs. 65.555/3/9/- ₹ 22.273/4/3) only as against the decree for ₹ 65,555/3/9- passed by the court below. The plaintiff will have also the proportionate costs in the court below on the said sum of ₹ 43,281.97 P. As the success is divided in this court, I shall make no order as to costs in appeal. Interest pendente lite and future at the rate of 6 per cent, per annum will run on the amount of ₹ 43,281.97 P. from the date of the suit till realisation. The preliminary mortgage decree in terms of the decree of the Court below will be passed and be operative in respect of the properties described in lots 1, 2 and 3 of schedule B in the plaint. There will be no mortgage decree in respect of lots 4 and 5. S. Wasiuddin, J. 34. I agree.
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1968 (11) TMI 104 - GUJARAT HIGH COURT
... ... ... ... ..... e adjourned, it could not be held that the tenant was not willing to purchase, only because he failed to appear on one single date. There would be no question of invoking the proviso as the Lands Tribunal lacked the authority to pass such an order against a tenant who had shown on all occasions his willingness to purchase by-appearing before the authority and by pursuing the inquiry with all his zeal. 7. Therefore, the orders of the Revenue Tribunal as well as of the lower authority even under Section 32G must be quashed. Therefore the rule must be made absolute in both the petitions by quashing the orders of the Revenue Tribunal as well as of the lower authority under Sections 32G and 32P and the matter must now go back to the Lands Tribunal for holding the statutory inquiry under Section 32G from the stage of recording the statement of the concerned tenant. Rule accordingly made absolute in both the petitions. The costs of both the petitions shall be paid by the opponents.
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1968 (11) TMI 103 - SUPREME COURT
... ... ... ... ..... not necessarily render a proceeding invalid if by considering its nature, its design and the consequences which follow from its non-observance one is not led to the conclusion that the Legislature or the constitution-makers intended that there should be no departure from the strict words used. 17. In this case, as we have already noted, the essential requirement of Article 173, read with Form VII-A, was that the person taking the oath or making the affirmation would bear true faith and allegiance to the Constitution and uphold the sovereignty and integrity of India. The words which precede this portion are merely descriptive of the person and of his nomination as a candidate. It is reasonable to think that a mere mis-print in the form of the oath or a mere inaccuracy in rendering the expression "Legislative Assembly" in Gujarati would not be fatal to the election of the candidate, if otherwise valid. 18. In the result, the appeal fails and is dismissed with costs.
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1968 (11) TMI 102 - CHANCERY DIVISION
... ... ... ... ..... y for making the bets, in that Mr. Compston would not have had companions on his rounds against whom to bet if he had not been a professional golfer, but the bets did not arise out of his vocation. Again it seems to me that that case is wholly distinguishable, for this short, simple reason that in the present case the club was not merely the occasion which enabled the taxpayer to play private games of cards. The playing of cards was part of the activities of the club, and his winnings from those games of cards, it seems to me, arose in the full sense out of the carrying on of the club. The point is a short one and does not permit of much elaboration. I think that the commissioners came to a correct view even upon the footing, which I think must be implied, that they accepted the evidence that this ? 1,410 18s. did represent card winnings. I must, therefore, dismiss this appeal. Appeal dismissed with costs. Solicitors Robbins, Olivery & Lake ; Solicitor of Inland Revenue.
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1968 (11) TMI 101 - CALCUTTA HIGH COURT
... ... ... ... ..... t case, it is not necessary for me to consider the question whether the plaintiff would have been disentitled to any such relief to which the plaintiff might have been entitled because of its conduct and it is not necessary to discuss the authorities cited from the bar on this aspect. Even if I had held that there was any irregularity in the sale effected by the defendant company and the plaintiff was entitled to claim any damages from the defendant company in consequence thereof, I would have been unable to grant any relief to the plaintiff company, as there is no evidence as to any such damage which might have been suffered by the plaintiff. 76. In the result, the suit fails and Is dismissed. As the defendant company has failed to prove the agreement alleged by it, I direct that the plaintiff will pay to the defendant company half of its taxed costs of the suit. The plaintiff will, however, pay to purchaser-defendants the taxed costs of the suit. Certified for two counsel.
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1968 (11) TMI 100 - SUPREME COURT
... ... ... ... ..... rror in holding that the respondents could not be tried and convicted of offences under s. 324 and 323 I.P. Code because in the earlier proceeding under s. 107 of the Code of Criminal Procedure, evidence with regard to the incident out of which offences which are the subject-matter of the present appeal was taken, and was regarded as insufficient to sustain the order. (1) C r, As. Nos. 15 & 35 of 1967 decided on Oct. 16, 1968, The appeal is allowed, and the order passed by the High Court is set aside. As, however, the sentences passed by the learned Trial Magistrate and confirmed by the Court of Session were of short duration and the respondents have been released on bail, we do not think that they should be called upon to undergo the remaining sentences. We reduce the sentences of imprisonment to the period already undergone. The appeal is allowed and the order of the Session Court is restored, subject to the modification in the sentence of imprisonment. Appeal allowed.
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1968 (11) TMI 99 - SUPREME COURT
... ... ... ... ..... he policy of Government regarding International trade varies from year t year and it would be rather odd for this Court to direct that a Import licence be granted in the year 1968 in respect of allege,, default committed by the Government in 1959 or 1962. In these matters it is essential that persons who are aggrieved by order of the Government should approach the High Court after exhausting the remedies provided by law, rule or order with utmost expedition. The learned counsel for the appellant contends that this matter involved fundamental rights and this Court at least should not refuse to give relief on the ground of delay. But we are exercising our jurisdiction not under Art. 32 but under Art. 226, and as observed. by Gajendragadkar, C.J., in the passage extracted above, even in the case of alleged breach of fundamental rights the matter must be left to the discretion of the High Court. In the result the appeal fails. Parties will bear their own costs. Appeal dismissed.
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1968 (11) TMI 98 - SUPREME COURT
... ... ... ... ..... the parties for determination in the suit or proceeding from which appeal has arisen, is not final within (1) 1947 F.C.R. 180. (2) E 1958 S.C.R. 1007. he meaning of Art. 133(1)(a) and (b). The order refusing to grant an interim injunction did not determine the rights and obligations of the parties in relation to the matter in dispute in the suit. We are unable to hold that, because the plaintiff's suit as a result of the order of the High Court may become infructuous as framed and the plaintiffs may have to seek amendment of the plaint to get effective relief, an order which is essentially an interlocutory order may be deemed final for the purposes of Art. 133 (1) of the Constitution. In our judgment, Mohanlal Maganlal ThakKar's case(1) makes no departure from the earlier judgments of the Judicial Committee, the Federal Court and this Court. The plaintiffs will pay the costs of the petitioners of the application for revocation of the certificate. Certificate revoked.
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