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1982 (8) TMI 229
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... ... ..... n whether actually according to law the suit was maintainable or not cannot be decided. 12. In the aforesaid view of the matter, I am unable to agree with the learned District judge that the plaint does not disclose any cause of action. The question relating to the validity at the permission granted by the Asstt. Commissioner under Section 38 of the Act can certainly be raised by the opposite Party in his written statement and the same may be decided as a preliminary issue, but the application cannot be dismissed at this stage on the alleged ground that the averments made therein disclose no cause of action 13. On the result, the revision petition is allowed. The order passed by the learned District Judge dated 26-2-82 is set aside and the learned District Judge is directed to proceed with the application filed by Bhagwandas under Section 38 of the Rajasthan Public Trusts Act, 1959, in accordance with law. 14. The parties are left to bear their own costs of revision petition.
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1982 (8) TMI 228
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... ... ..... of 1976). In view of the lower appellate Court is obviously against law because the provisions of R. 15, O. 21, Civil P. C., are only enabling and the transferees if they so desired, could get themselves impleaded as decree-holders in place of the original one. So long as this is not done, the person whose name appears as decree-holder in the decree is entitled to execute the decree. Reference in this respect may profitably be made to a Full Bench decision of the Andhra Pradesh High Court in Arvapalli Ramrao v. Kanumarlapudi Ranganaykulu; Mithan Lal v. Thana and Bajirao Domaji Shreerang v. Kashirao Ajaibrao Deshmukh AIR 1978 Bom 350. Consequently, the judgment of the lower appellate Court in this respect has to be reversed with the result that the appeal (E. S. A. No. 2124 of 1976) filed by the decree-holders is allowed and the order of the lower appellate Court set aside to the extent stated above and that the of the executing Court restored. No costs. 30. Order accordingly.
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1982 (8) TMI 227
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... ... ..... urpose. My attention was also drawn to a decision of the Kerala High Court in the case of Prakasam v. Sri Narayana Dharma Paripalana Yogam 1980 50 Comp Cas 611 (Ker). In this case, the Kerala High Court held that the company court will not assume jurisdiction where a member seeks to redress an individual injustice done to him. In the present case, however, the resolution is aimed at withdrawal of a petition pending under s. 391 of the Companies Act. The meeting which is requisitioned has a direct nexus with the pending petition under s. 391 of the Companies Act; and hence the company court exercising its jurisdiction under s. 391 of the Companies Act can certainly deal with the judge's summons taken out for the purpose of restraining the holding of such a meeting. In the premises, the judge's summons is made absolute in terms of prayer (a) except for the bracketed portion. The opponents to pay to the applicant the costs of the judge's summons fixed at ₹ 300.
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1982 (8) TMI 226
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... ... ..... ld have been properly considered and due weight given by the appellate authority has disposed of the appeal amounts to no consideration of the appeal at all. (SIC) are in respectful agreement with the above observation (SIC) Division Bench of this Court and we find that in the (SIC) band also the appellate authority did not consider the (SIC) its proper perspective giving due weight on the grounds (SIC) in the appeal by the Petitioner. We are clearly of opinion that the appellate order im(SIC) before us is not sustainable in law and accordingly (SIC) the is quashed. The appellate authority now may dispose of appeal in accordance with law as indicated above. In the result this petition is allowed. The Rule is made (SIC). But In the facts and circumstances of the case, we (SIC) order as to costs. (SIC)ransmit the records of the case immediately to the (SIC) appeauthority for disposal of the appeal in accordance with (SIC) an early date, preferably within four months from today.
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1982 (8) TMI 225
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... ... ..... s no interference in these appeals. In our judgment, the learned single Judge was right in allowing the petitions and issuing the writ of mandamus granting the requisite reliefs. 29. Accordingly, all the appeals fail and are dismissed. As regards the costs, taking into consideration the time required for hearing of the appeals and the fact that Appeal No. 78 of 1982 was argued in detail, while the counsel in other appeals merely adopted the arguments, we direct that the appellants shall pay ₹ 1500/- to the respondents in Appeal No. 78 of 1982 as the costs of the appeal and the appellants in the remaining four appeals shall pay to the respondents in each of the appeals ₹ 500/- as costs of the appeals. 30. Shri Makhija. the learned counsel appearing on behalf of the appellants, applies for Certificate under Article 134A of the Constitution of India for filing an appeal to the Supreme Court, in Appeal No. 78 of 1982 only. Certificate refused. 31. Ordered accordingly.
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1982 (8) TMI 224
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... ... ..... der definition by the inclusion of the words ';construction'; and ';thing'; in the place of ';manufacture or processing of goods'; would certainly enlarge the meaning so as to justify the inference in favour of the taxpayer. As pointed out earlier, the Orissa High Court in Budharaja';s case (supra) has already taken the view in favour of the taxpayer under an analogous provision. The activity encoun-tered in the Orissa High Court case is identical with that of the assessee. There is no other decision to the contrary. The first appellate authority, therefore, should have directed the ITO to grant the allowance, subject only to the other conditions being satisfied. 4. In this view, we allow the appeal and direct the ITO to consider the claim of investment allowance on merits, on the basis that the assessee';s activity is of an ';industrial undertaking'; which is engaged in the business of construction or manufacture of articles or things.
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1982 (8) TMI 223
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... ... ..... nd in none of the matters, it has been shown that the defendants are not entitled to the relief under Act XV of 1976 and hence the provisions of Act XV of 1976 is attracted in all these cases and all the three matters will have to be disposed of in accordance with the provisions of Act XV of 1976. 25. In the result our answer to the question referred to us in that the suits instituted in contravention of Section 3 of Act (XV of 1976) are liable to be dismissed. 26. However, taking into consideration the subsequent events namely, the expiry of the moratorium, and the inherent power vested with the Courts to shape the reliefs to avoid undue hardship to the parties the proper order warranted by the special circumstances present in these eases will be to order the return of the plaints rather than dismissing them. 27. Hence we accordingly order the return of the plaints in all the three cases. With liberty to re-present the same within 2 weeks. There will be no order as to costs.
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1982 (8) TMI 222
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... ... ..... ld be levied and when the assessee effected the sale. I find that the Tribunal committed no error in holding that the sales of bread and biscuits were exempted sales. 5. The next item of sales by the assessee was Desi Ghee and Gur. The Tribunal had found that the assessee had filed the necessary form 3C-5, under directions of the Assistant Commissioner (Judicial) on 13.3.1980. The A. C. (J) was obliged to take them into consideration at the time of the decision of the appeal. He found that despite the form having been filed, the Assistant Commissioner (Judicial) did not consider them. These forms show that Desi Ghee had been purchased from registered dealers. No discrepancy in details could be discovered. In these circumstances, the Tribunal held that the sales should be excluded from the turnover. There is no error in this part of the judgment of the Tribunal. 6. In the result, I find no merit in this revision, which is dismissed with costs which I assess at ₹ 200/- .
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1982 (8) TMI 221
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... ... ..... ve to contest. (23) In view of the aforesaid reasons, the revision petition is accepted and it is held that the application of the petitioner for leave to contest was within time and the petitioner is allowed leave to appear and contest the eviction petition on the following two points (i) Whether the premises were let for the purpose of residence only ? (ii) Whether the landlord bona fide requires the premises for his own occupation as residence for himself and/or any family members dependent upon him. (24) Parties are accordingly directed to appear before the Rent Controller on 3rd September, 1982 when the petitioner would file written statement in the light of the aforesaid observations and thereafter the Rent Controller will proceed to decide the petition with due expedition. Nothing stated in this judgment will be construed as a matter of opinion while deciding the controversy on merits. (25) Parties arc, however, left to bear their own costs in the present proceedings.
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1982 (8) TMI 220
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... ... ..... t mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order while in another it might affect public order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community which makes it prejudicial to the maintenance of public order." The situation in Assam is a grave one and the agitation on the issue of foreigners has been going on for years and it has taken an ugly and serious turn,and the statements of facts made in paragraphs 2 and 3 of the grounds of detention in the prevalent circumstances in Assam relate to the maintenance of public order in view of the law laid down in the above case. For the foregoing discussion the appeal must fail. It is accordingly dismissed. Appeal dismissed.
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1982 (8) TMI 219
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... ... ..... tion of the firm. The AAC confirmed the order of the ITO. It appears that after the ITO had disposed of this case, an affidavit of Mohammed Ishaq dated 11-5-1976 was produced before the ITO. The Tribunal relied upon the statement of seven partners and the affidavit, that Mohammed Ishaq was in fact a partner. The learned standing counsel for the department submitted that as the affidavit of Mohammed Ishaq was not filed before the ITO passed the order refusing to register the firm, the Tribunal could not have relied upon it. The affidavit was already on record of the ITO. The assessee could have produced the same even before the Tribunal. We do not find that there was any illegality in relying upon the affidavit. The question whether Mohammed Ishaq was in fact a partner was a question of fact, and, therefore, the Tribunal's finding must stand. 3. In out opinion, no question of law arises. The application is dismissed with costs. Counsel's fee ₹ 100, if certified.
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1982 (8) TMI 218
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... ... ..... to locate the fundamental right violated by a statute, the court must consider what is the direct and inevitable consequence of the statute. The impugned statute may in its direct and inevitable effect invade more than one fundamental right and merely because it satisfies the requirement of one fundamental right, it is not freed from the obligation to meet the challenge of another applicable fundamental right. These are the reasons for which I made my order dated May 9, 1980 declaring the death penalty provided under section 302 of the Indian Penal Code read with section 354 sub-section (3) of the Code of Criminal Procedure, 1973 is unconstitutional and void as being 5 violative of Articles 14 and 21. I must express my profound regret at the long delay in delivering this judgment but the reason is that there was a considerable mass of material which had to be collected from various sources and then examined and analysed and this took a large amount of time. Appeal dismissed.
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1982 (8) TMI 217
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... ... ..... appeal on any ground other than the ground of the withdrawal of the appeal by the appellant, the explanation is attracted, and the application for setting aside the ex-parte decree becomes in-competent after the disposal of the appeal and cannot be entertained. As in our view, the application for setting aside the ex-parte decree does not lie and cannot be entertained, in view of the provisions contained in the Explanation, it does not become necessary for us to go into the merits of the application to consider whether sufficient cause had been shown by the respondent for his nonappearance at the hearing at the date fixed and also for not preferring the application with n the time prescribed. The appeal, therefore, succeeds. The judgment and order passed by the High Court are set aside and the ex-parte decree passed in favour of the appellant OD 6.12.1979 is restored. In the facts and circumstances of this case, we do not propose to make any order for costs. Appeal allowed.
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1982 (8) TMI 216
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... ... ..... seem to be done, the same holds good with all the greater vigour in case of court martial where the judge and the accused done the same dress, have the same mental discipline, have a strong hierarchical subjugation and a feeling of bias in such circumstances is irremoveable . We, therefore, hope and believe that the changes all over the English speaking democracies will awaken our Parliament to the changed value system. In this behalf, we would like to draw pointed attention of the Government to the glaring anomaly that Courts Martial do not even write a brief reasoned order in support of their conclusion, even in cases in which they impose the death sentence. This must be remedied in order to ensure that a disciplined and dedicated Indian Army may not nurse a grievance that the substance of justice and fair play is denied to it. With these observations we dismiss all the three petitions and vacate all interim orders. There shall be no order as to costs. Petitions dismissed.
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1982 (8) TMI 215
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... ... ..... datory for the Court also then the language of the Section would have been different. The omission of casting duty on the Magistrate in Section 110(2) of the Act indicates that the exercise of powers by Criminal Courts regarding disposal of property as per provisions of the general enactments was not meant to be curtailed by the provisions of this Act. 17. In view of the above discussion regarding the facts and the circumstances of the case and the relevant law on the point, I am inclined to hold that the impugned order suffers from no illegality or infirmity, nor can it be said to be the abuse of the process of the court, so as to call for any interference by the court in exercise of its inherent power, specially when the learned Magistrate has left the course open to the Customs Department to initiate separate proceedings if considered necessary. There is thus no impediment in the exercise of the power of Custom Authorities, the petition having no merits is dismissed.
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1982 (8) TMI 214
Whether application for stay of suit be rejected?
Held that:- On June 3, 1981, an application for stay of suit was made on behalf of the 1st defendant under s. 34. Ex facie, the proceedings did not disclose any step having been taken by the 1st defendant in the proceedings as would disentitle it to an order under s. 34. 2nd defendant was impleaded in his official capacity. Assuming the application of the 2nd defendant for filing reply to the interim injunction application also binds the 1st defendant though it was not served with the summons yet an application seeking time to file reply to an interim injunction application cannot be said to be a step in the proceedings as would display an unequivocal intention to proceed with the suit or would disclose that the defendants had acquiesced into the resolution of dispute by the court or had abandoned the rights under the arbitration agreement.
The application for stay was read over to us and a copy was submitted for our perusal. In para 2 of the application it is clearly stated that ’the defendant is ready and willing (ichhuk) for this purpose. It appears that the original application was in Hindi. The important word used in the application is ichhuk which, it was agreed, would mean ready and willing. It is followed by the expression ’for this purpose’ which would imply that the Ist defendant was always ready and willing to proceed with the arbitration when commenced and is shown to be ready and willing at the time of applying for stay. Therefore, the Ist defendant had complied with the requirement of his readiness and willingness to go to arbitration. Therefore, the learned judge was clearly in error in interfering with the order of the trial court confirmed by the Ist appellate court on this ground also. Appeal allowed - the learned judge of the High Court was clearly in error in interfering with the order made by the trial court and confirmed in appeal granting stay of the suit.
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1982 (8) TMI 213
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... ... ..... as sugar and a customer who comes to a shop and asks for sugar will not be satisfied if he is supplied with diamond sugar. It is the assessee s own case that diamond sugar, though made out of sugar, contains a higher percentage of sugar and that in the commercial circles it is treated as an entirely different commodity from sugar. It is also to be pointed out that sugar is used for all purposes while the need for the diamond sugar appears to be restricted. The fact that the assessee here is only a dealer in diamond sugar and not a dealer in sugar in general itself indicates that it is a special commodity different from sugar. In this view of the matter we have to uphold the orders of the Tribunal in these cases holding that diamond sugar is a sugar candy and as such it is liable to the levy of sales tax under item 9 of the Second Schedule. In the result, these two tax case petitions will also stand dismissed. There will be no orders as to costs in any of these three matters.
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1982 (8) TMI 212
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... ... ..... abrics are packed. It is no doubt true that the price structure of the fabrics includes the price of the wooden containers. But that by itself does not show that there is an implied contract of sale of the packing material also. The question whether there was an agreement to sell the packing material is a pure question of fact. On the material available, the Appellate Tribunal came to the conclusion that there was no sale of the packing material either express or implied. The reasons given for reaching that conclution cannot be said to be either irrelevant or extraneous. They are germane to the matter under enquiry. On the facts established it cannot be said that the finding of the Appellate Tribunal is either perverse or not based on any evidence. In this context, it may be pointed out that it is not in dispute that the main goods themselves are exempt from tax. For the above reasons, we dismiss these three sales tax revision cases. No costs. Advocate s fee Rs. 150 in each.
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1982 (8) TMI 211
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... ... ..... n go into the correctness or otherwise of the order of assessment by the assessing authority himself and not the order of the Appellate Assistant Commissioner alone against which the appeal has been filed before the Tribunal and that if it comes to the conclusion that the assessing authority has not assessed a turnover which is liable to be assessed under the law or assessed a turnover at a rate lower than that sanctioned by the law, it is open to the Tribunal to set aside the order of the assessing authority and revise the assessment or direct him to make a fresh assessment in the light of the opinion expressed by it. In view of the said decision with which we respectfully agree, we have to set aside that portion of the order of the Tribunal which rejected the State s petition for enhancement and direct the Tribunal to entertain the State s application for enhancement and consider the same on merits, and pass appropriate orders. There will, however, be no order as to costs.
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1982 (8) TMI 210
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... ... ..... the manufacture commercially expedient, are goods which should be treated as used in the manufacture, within the meaning of section 5(2)(a)(ii) of the said Act. Here also, the weighing and testing machines, in my view, are integrally connected with the ultimate production and that, but for that process, manufacture or processing of goods would be commercially inexpedient and furthermore, the goods required and used in the process would fall within the expression in the manufacture of goods . I do not think that the other submissions of Mr. Dutta on the existence of other remedy would be of much assistance and help in the facts of this case. There is also no substance in the submissions on the right of the said petitioner under article 19(1)(g) of the Constitution of India. Thus, this rule, so also the other two rules as indicated above, should succeed. They are thus made absolute. There will be no order as to costs. The prayer for stay of operation of this order is refused.
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