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1963 (2) TMI 75
... ... ... ... ..... ed by the above reasoning not to construe Section 3(a) of the Delhi and Ajmer Rent Control Act, 1952, in a manner so as to add an exception in the case of auction-purchasers to whom sale certificate has not yet been issued. The decision of the Supreme Court in AIR 1958 SC 289, leaves no room for doubt that an auction-purchaser in the condition of the present landlords is not transferee of the property sold at the auction. 17. The question referred to the Division Bench must be answered in the affirmative. I am, therefore, of the view that an auction-purchaser of evacuee property, who has not yet obtained a sale certificate but to whom the occupier has attorned, can, under the ordinary law, maintain a suit for ejectment. 18. By this judgment, only the question referred to the Division Bench is being answered. It will be for a learned Single Judge to decide this and other connected cases on their respective merits in the light of the above answer. D. Falshaw, C. J. 19. I agree.
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1963 (2) TMI 74
... ... ... ... ..... or both debits and credits the actual rates at which the purchases and sales were effected are accepted, it is clear that the Trial Court's direction had resulted in crediting the defendant with Rs. 3,244/12/- more than what was the correct figure. The High Court was therefore right in increasing the decretal amount by this sum of Rs. 3,244/12/-. 15. It may be pointed out that if the actual rates of purchases and sales in respect of these transactions of February 3, 1947 for 2300 bags of cotton-seeds are rejected and the Saudabahi rates (according to Ex. P-8) of Rs. 14/5/- for the sale and Rs. 14/8/- for the purchase are accepted as the basis for making the credits and debits, as Mr. Aggarwala asks us to do, the defendant would gain nothing at all. 16. We have therefore come to the conclusion that the High Court was right in allowing the plaintiff's appeal in part and increasing the decretal amount by Rs. 3,244/12/-. 17. The appeal is accordingly dismissed with costs.
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1963 (2) TMI 73
... ... ... ... ..... of maintenance to be awarded to the appellants. The Magistrate, on a consideration of the entire evidence, having regard to the salary of the respondent, and the value of the property he purchased awarded maintenance to the wife at the rate of ₹ 100/- per month for herself and at the rate of ₹ 50/- per month for the maintenance of her minor child. The Additional Sessions Judge, on a reconsideration of the evidence, accepted the finding of the learned Magistrate and confirmed the quantum of maintenance awarded by him. The finding is a concurrent finding of fact the correctness whereof cannot ordinarily be questioned in a revision petition in the High Court. That is why the only question argued before the High Court was that of jurisdiction. As we have held that the view accepted by the High Court was wrong, we set aside the order of the High Court and restore that of the Magistrate First Class, Ludhiana. 17. In the result the appeal is allowed. 18. Appeal allowed.
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1963 (2) TMI 72
... ... ... ... ..... Homi ( 1955 2 S. C. R. 78), this Court ruled that provisions in a surety bond which are penal in nature must be very strictly construed. This Court again in The State of Uttar Pradesh v. Mohammed Sayeed ( 1955 2 S. C. R. 78), applied the strict rule of construction of a surety bond in that case. In the present case a strict construction of the bond leads to the only conclusion that a demand of the Court on the judgment-debtor and a default made by him were necessary conditions for the enforcement of the bond against the appellant. In the result, we set aside the order of the High Court and dismiss the application for execution filed by the first respondent against the appellant. But we do not think that this is fit case for awarding costs to the appellant. She has failed to raise this objection specifically in her objections or to place before the learned District judge the present contention. In the circumstances we direct each party to bear his or her own costs throughout-
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1963 (2) TMI 71
... ... ... ... ..... r the rate of commission or give up the commission due to the assessee. No such agreement or transaction which could be regarded as an agreement was entered into during the accounting year. If after the accrual of the income, according to the terms of the managing agency agreement, the managing agents purported to give up any part of that income, that cannot be regarded as affecting the terms of the agreement whereunder such income had accrued to it. It follows that the view taken by the department and the Tribunal that the income had accrued to the assessee in the instant case and that the waiver operated only as a disposal of that income is correct. We may mention that the learned counsel for the assessee did not press question No. 1. It is accordingly answered in the affirmative and against the assessee. In the view that we have expressed, the second question is also answered against the assessee. The assessee will pay the costs of the department. Counsels fee ₹ 250.
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1963 (2) TMI 70
... ... ... ... ..... emity of the plot marked 10 in Ext. C2 to which plot as I have said, the plaintiffs are entitled. Although the effect of the decree of the lower appellate Court is that the plaintiff's suit in respect of the land, in other words, the plot marked 10 in Ext. C2, is dismissed, I think that justice requires that the plaintiffs should be given a decree declaring their title to this plot and enabling them to recover possession of the portion thereof which is in the defendant's possession. And I think that Order XLI Rule 33 of the Code gives me the power to secure this. 14. In the result, there will be a decree declaring the plaintiffs' title to the plot marked 10 in Ext. C2 and for recovery from the hands of the defendants of the portion thereof which is in their possession (the blue shaded portion in Ext. C2). The plaintiffs' suit is dismissed so far as the home is concerned. The plaintiffs will pay the defendants the costs incurred by them in all the three Courts.
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1963 (2) TMI 69
... ... ... ... ..... which then became a question of fact whether in truth, and in the light of all the special circumstances of the manufacturing process the knives and lasts can be properly described as "plant" or "machinery or plant". It is obvious that in view of this observation this case is not helpful to the assessee and even in Mir Mohd. Ali's case (supra), in which reference to Hinton's case (supra) has been made, the learned judges have pointed out that that case is not an authority for the decision of a case like the one that was before them. So Hinton's case (supra) does not advance the argument on behalf of the assessee. In the circumstances the approach to the matter by the learned Income-tax Appellate Tribunal is correct and the answer to the question is that the assessee is not entitled to the initial depreciation under section 10(2)(vi), paragraph 2, as claimed by it. There is no order in regard to costs in this reference. Inder Dev Dua J.-I agree.
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1963 (2) TMI 68
... ... ... ... ..... neither dismissed the employee nor had come to the conclusion that a case for dismissal had been made out. In' that case the dismissal of the employee takes effect from the date of the award and so until then the relation of employer and employee continues in law and in fact. In the present case an inquiry has been held which is said to be defective in one respect and dismissal has been ordered. The respondent had however to justify the order of dismissal before the Labour Court in view of the defect in the inquiry. It has succeeded in doing so and therefore the approval of the Labour Court will relate back to the date on which the respondent passed the order of dismissal. The contention of the appellant therefore that dismissal in this case should take effect from the date from which the Labour Court's award came into operation must fail. There is no force in this appeal and it is hereby dismissed. In the circumstances we pass no order as to costs. Appeal dismissed.
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1963 (2) TMI 67
... ... ... ... ..... language of the document construed by this court in Rachpal Mahraj v. Bhagwandas Daruka, 1950 1SCR548 and is covered by the decision in that case. We accordingly reject the argument addressed by the learned counsel for the respondents on this aspect of the case. 13. For the reasons expressed we hold that the view taken by the High Court must be overruled and the plaintiff must be granted a mortgage decree for the amount of ₹ 31,000 odd, as claimed in the plaint together with interest at 6 per cent per annum from the institution of the suit and costs. The plaintiff is accordingly granted the usual mortgage decree under Order 34, Rule 4, Civil Procedure Code, and it should be stated in the decree that if the defendants do not pay the amount within the period of six months from this date the mortgaged properties described in the schedule to the plaint would be sold for the satisfaction of the amount owing to the plaintiff. 14. We accordingly allow this appeal with costs.
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1963 (2) TMI 66
... ... ... ... ..... f the notification, the section itself is not attracted and a fortiori the proviso to the section cannot come into operation. The quantum of the addition, it appears to us, has, therefore, been provided by the notification itself which we extracted above in these terms "Such interest shall, however, be included in the total income of the assessee for the purposes of section 16 of the Indian Income-tax Act, 1922?" Such interest refers to what is mentioned earlier in the notification, viz., the interest receivable on the tax free bonds specified in the notification. The entire interest receivable has, therefore, to be added according to the above provision. Section 8, the provisos to the above section and the Explanation, cannot have any application. We, therefore, hold that the entire interest of ₹ 44,720 is entitled to rebate of income-tax. We answer the question referred to us in the affirmative and against the department. There will be no order as to costs.
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1963 (2) TMI 65
... ... ... ... ..... f the second proviso to section 10(2)(vii)?" and answered the question in the negative. To the same effect is the decision of the Calcutta High Court in Commissioner of Income-tax v. Mugneeram Bangur & Co. 1963 47 ITR 565 We are in agreement with the view expressed by the High Courts of Bombay and Calcutta, and answer the question referred in the negative and against the department. What the second proviso brings to charge is the profits that a vendor makes from a vendee as the result of a sale. If no sale or profit in any commercial sense occurs because of the virtual identity of the vendor and the vendee, as in the case before us, it cannot be said that the second proviso is attracted and that a tax liability does arise. We make no order as to costs. A copy of this judgment under the seal of the High Court and the signature of the Registrar will be forwarded to the Appellate Tribunal as required by sub-section (5) of section. 66 of the Indian Income-tax Act, 1922.
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1963 (2) TMI 64
... ... ... ... ..... entation of the winding-up application become automatically void, unless the Court orders otherwise. This section, therefore, does not contemplate any previous order of- the Court about disposition of the property of the Company. Learned counsel for the Company has not been able to refer to any authority in support of the view that his client could obtain approval of the Court about the terms of the lease even before the winding up order was passed. It would, therefore, be proper to set aside the order of the Court dated 9th May, 1961. The position emerging after the setting aside of the above order would be that the contract between the Company and the appellant would stand as if it was made by the parties without the approval of the Court. 15. The appeal is, therefore, allowed and all the orders of the Court dated 9th May, 1961, 12th February, 1962 and 19th February, 1962, are hereby set aside. In the circumstances of the case, we leave the parties to bear their own costs.
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1963 (2) TMI 63
... ... ... ... ..... e landlord is facility given to the tenant to occupy the shop. The consideration from the side of the tenant is rent payable to the landlord. Both the considerations are lawful. No part of the consideration or object of the agreement Is unlawful. So Section 24 of the Contract Act has also no application. 36. Now we return to Section 10 of the Contract Act. We have seen that the consideration and the object of the agreement is lawful. So the agreement of tenancy amounts to a contract under Section 10 of the Contract Act. In other words, the agreement of tenancy is valid, it is not void under Section 10 read with Section 23 of the Contract Act. 37. In my opinion, the answer to the question referred to the Full Bench is in the negative. 38. PATHAK, J. I have perused the judgments of my Lord the Chief Justice and my brother Oak and cannot use fully add to what they have said. I agree that the question referred must be answered in the negative. Reference answered in the negative.
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1963 (2) TMI 62
... ... ... ... ..... ourage the respondent in these circumstances by staying the suit. In these circumstances, in my view, no stay should be granted. o p /o p 24. There is another way of looking at the problem. o p /o p 25. The respondent has taken proceedings before Arbitrators under a contract, which according to him, contains a term which requires that payment should be made by cheque on the 10th October 1960 against Mill's Pucca Delivery Order. The appellant, on the other hand, has founded his claim on a contract one term of which requires that payment should be made in cash positively on the 10th October against Mill's Pucca Delivery Order. Therefore, a contract which is the subject-matter of the reference and the contract which is the subject-matter of the suit are not the same and are different. Hence, the dispute raised by the respondent cannot arise Under the contract pleaded by the plaintiff in the suit. Therefore, Section 34 cannot be brought in aid of the respondent. o p /o p
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1963 (2) TMI 61
... ... ... ... ..... istake was committed by the Court and the appellant should be ordered to deposit the additional rupee for payment to Bhola Singh. If he fails to make the deposit within the time specified by us his suit may be dismissed but not before. We may point out however that we are not deciding the question whether a Court after passing a decree for pre-emption can extend the time originally fixed for deposit of the decretal amount. That question does not arise here. In view of the mistake of the Court which needs to be righted the parties are relegated to the position they occupied on January 6, 1958, when the error was committed by the Court which error is being rectified by us nunc pro tunc. 9. The appeal is, therefore, allowed. The appellant is ordered to deposit Re. 1 within one month from the date of the receipt of the record in the Court of the Sub-Judge, Sirsa. In view of the special circumstances of this case there shall be no order about costs throughout. 10. Appeal allowed.
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1963 (2) TMI 60
... ... ... ... ..... lature did not intend this is clear, as I have already pointed out above, from what it laid down in the 8th sub-section of s. 129A. For all these reasons, I have come to the conclusion that as admittedly the procedure laid down in s. 129A was not followed for testing of the blood that was taken at 6 a.m., the prosecution cannot get the benefit of s. 66(2) of the Prohibition Act. There is no justification, therefore, for the order made by the Sessions judge, sending the case back to the Magistrate for re-trial in order to give the prosecution an opportunity of adducing evidence as regards the examination of the blood taken at 6 a.m. on April 3, 1961. I would therefore allow the appeal, set aside the order of the High Court and also the order of the Sessions judge directing re-trial and order that the appellant be acquitted. By COURT. In accordance with the opinion of the majority the Appeal is dismissed subject to the modifications mentioned in the judgment. Appeal dismissed.
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1963 (2) TMI 59
... ... ... ... ..... 7 of the Act, whether or not it was covered by the instructions given under s. 43-A. For if on the basis of such an error of law, it refuses to decide a relevant question, the fact that the Government also issued instructions to the Tribunal to apply some objective standards in deciding such a question does not make the said question anytheless a relevant consideration under s. 47 of the Act. That is the position in the present case. As we have already indicated, on the basis of an error manifest on the record, namely, that a company cannot have a branch office on the route in question, if it has another branch elsewhere, it refused to take into consideration a relevant fact, namely, whether the respondent has an office on the said route. The High Court, therefore, was right in quashing the order of the Appellate Tribunal and giving an opportunity to the Tribunal to decide that question on merits. In the result, the appeal fails and is dismissed with costs. Appeal dismissed.
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1963 (2) TMI 58
... ... ... ... ..... services because of his unsuitability should not be given effect to. If such an opportunity is given to a probationer and his explanation in. reply thereto is given due consideration, there is in our opinion sufficient compliance with r. 55-B. Generally speaking the purpose of a notice under r. 55-B is to ascertain, after considering the explanation which a probationer may give whether he should be retained or not and in such a case it would be sufficient compliance with that rule if the grounds on which the probationer is considered unsuitable for retention are communicated to him and any explanation given by him with respect to those grounds is duly considered before an order is passed. This is what was done in the present case and it cannot therefore be said that the appellant was not given the opportunity envisaged by r. 55-B. We therefore dismiss the appeal, though for slightly different reasons. In the circumstances there will be no order as to costs. Appeal dismissed.
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1963 (2) TMI 57
... ... ... ... ..... an understand a claim by the Revenue Authorities to lift the veil in appropriate cases of corporate personality. But surely the corporate personality which itself creates and wears the veil cannot ask to be unveiled or unmasked for that would be permitting a person or Corporation to blow hot and cold at the same time. 22. For the reasons stated above, we hold that the Tribunal came to a wrong decision and misapplied the authority of the Bombay High Court in to the facts of this case which do not attract that decision. 23. This Court, therefore, answers the question asked in the negative by holding that the Tribunal was wrong in excluding the same sum of ₹ 40,247/- from being deemed profits of the assessee under the second proviso to Section 10(2)(vii) of the Income-tax Act. 24. The assessee shall bear the costs of this Reference, subject, however, to the order for costs that we have already made in these proceedings. 25. Certified for two Counsel. Laik, J. 26. I agree.
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1963 (2) TMI 56
... ... ... ... ..... the servant was not acting within the scope of his authority, the master would not be liable and it is the person who did the particular act, that is the servant, would alone be liable. If a third party sustains damage or loss by reason of an act of the servant, he can hold the servant liable and also if the servant's act falls within the scope of his duties or authority, the master as well. That principle can obviously have no application for founding a liability against a stranger from whom the servant can in no sense be regarded as deriving any authority. We are, therefore, clear that whether the money had been misappropriated, by the Potdar or by the Manager, it is the Bank who is their employer that must bear the loss. The drawers of the cheque, that is, the Firm to whom no part of the money was paid by the Bank cannot be held liable to make it good to the Bank. For these reasons we affirm the decree appealed from and dismiss the appeal with costs. Appeal dismissed.
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