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1969 (2) TMI 195
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... ... ..... et a judgment or decree etc. set aside by bringing regular suit for the purpose. I, therefore, fully agree with the views expressed in the earlier decision of this Court referred to above and hold that such a plea can be raised under Section 44 of the Evidence Act in a collateral proceeding irrespective of the time when the judgment was delivered or decree or order was passed. The aforesaid contention of Shri Kailash Roy is accordingly rejected as being quite untenable. This, however, makes no difference so far as the result of this appeal is concerned in view of the findings above that there was no fraud in connection with the compromise in question. 14. In the result, both the appeals are dismissed with costs in favour of the contesting Respondents 1 (a) and 1 (b), but there will be one set of hearing fee to be paid half and half by the appellants in each of the two appeals, and the judgment and decree of the Court below are hereby affirmed. Tarkeshwar Nath, J. 15. I agree.
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1969 (2) TMI 194
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... ... ..... f the insolvents. He did not endorse that payment in Exh. A-1, though he knew that he was required to do so under the rules. We are also surprised how he could have remembered that fact after several years. Had the learned District Judge's attention been drawn to the fact that there is no documentary evidence in proof of the payment of that item it is highly doubtful whether he would have held in favour of the mortgagee as regards the payment of that item. After going through the evidence bearing on the point we are not satisfied that the payment of that amount is satisfactorily proved. 26. In the result Civil Appeal No. 846 of 1963 is allowed and the judgment and decree of the High Court is set aside and that of the District Court restored. Civil Appeal No. 845 is allowed in part i.e. the mortgage Exh. A-1 is held to be valid to the extent of Rs. 10,500 and interest thereon. In the circumstances of the case we direct the parties to bear their own costs in all the courts.
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1969 (2) TMI 193
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... ... ..... not happen in the case of a pledge. The general property having, thus, remained in the pawner, he remains entitled to all the dividends that may be declared on the shares and to the bonus and right shares that may be issued in respect of the shares pledged. 13. There being no contract to the contrary in this case, respondent No. 5 has no right or interest in the accumulated dividends declared in respect of 1/3 of the 91 shares of the Punjab National Bank Ltd., pledged in favor of respondent No. 5, nor to the right shares or the bonus shares issued in respect of the same. The result is that the appeal is accepted and the judgment and decree of the learned Sub-Judge is modified so as to exclude in favor of the appellant the right and bonus shares and dividends declared in respect of l/3rd of 91 shares of the Punjab National Bank Ltd. originally pledged with respondent No. 5. The appellant shall be entitled to costs of this appeal. S.K. Kapur, J. 14. I agree. 15. Appeal allowed.
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1969 (2) TMI 192
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... ... ..... fendants should be asked to render accounts before they claim any payment from the plaintiff at the time of redemption of the mortgage. It was pointed out that the plaintiff did not file an appeal against the decree of the trial court and in the absence of such an appeal the High Court was not legally justified in giving further relief to the plaintiff than that granted by the trial court. In our opinion, there is justification for this argument. We accordingly set aside that portion of the decree of the High Court remanding the case to the lower appellate court with a direction that the defendants should be asked to render accounts. Otherwise we affirm the decree of the High Court allowing the plaintiffs appeal with costs and setting aside the judgment and decree of the lower appellate court and restoring judgment and decree of the trial court dated 31st October, 1956. 4. Subject to this modification we dismiss these appeals. There will be no order as to costs in this Court.
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1969 (2) TMI 191
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... ... ..... ment does not arise. It therefore follows that the Delhi Special "Police Establishment can investigate any offences or classes of offences which had been notified by the" Central Government in the official gazette. By notification dated 6th November 1956, the Government in exercise of the powers conferred by Section 3 of the Delhi Special Police Establishment Act 1946, specified various offences. These offences include an offence under Section 420, I.P.C. So far as the investigation of an offence under Section 420, I.P.C. is concerned, the Delhi Special Police Establishment is within its powers. I am unable to accept the contention of the learned counsel for the petitioner that the investigation by the Special Police Establishment of an offence of cheating is without jurisdiction. 13. In the result, all the contentions raised by the learned counsel for the petitioner fail, and the Writ Petitions are dismissed. There will be no order as to costs in all the petitions.
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1969 (2) TMI 190
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... ... ..... 's contention would, one may be sure, be reflected in the stated case. In the circumstances, any benefit to individuals in their private capacity which resulted in consequence of the expenditure must be taken to be simply a by-product of this outlay and not its purpose. 31. On this ground I would agree that the appeal should be dismissed. 32. I also agree that the present case is in a different category from those cases where professional men may use part of their homes to do their professional work and may be allowed a proportionate part of the expenses of the home in consequence. I agree with what my noble and learned friend, Lord Upjohn, says upon this point. Feb. 19. Lord Reid.-My Lords, I agree with my noble and learned friends that this appeal should be dismissed. Lord Hodson.- My Lords, I agree with my noble and learned friends that this appeal should be dismissed. Solicitors Solicitor of Inland Revenue; William A. Crump Son for Dundas & Wilson W.S., Edinburgh.
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1969 (2) TMI 189
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... ... ..... made to specify them or attach a figure to them. " Counsel for the taxpayers told me that so far as he recollected he never suggested that there might be other items of direct selling cost beyond salesman's commission and it may be that the word " direct " is a mistake for " indirect " and that the commissioner were referring to the question whether a fraction of the overheads should be included. However that may be it is common ground that this question was not fully explored before the commissioners because the taxpayers were relying on their contention with regard to replacement value. Similarly the argument before me was confined to this point. So, as I have said, I express no view as to whether in ascertaining market value of unsold stock one should deduct a proportion of the overhead expenses as well as expenses directly referable to the sales. Appeal dismissed with costs. Solicitors Titmuss , Sainer & Webb ; Solicitor of Inland Revenue.
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1969 (2) TMI 188
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... ... ..... at the Company is not entitled to any relief with respect to the period prior to the grant of permits to other persons. This contention does not appear to be tenable because after coming into force of the Motor Vehicles Act, 1939 the Company obtained temporary permits in 1951 even though they were cancelled by the High Court. If for any reason the permits to other persons were not granted till 1954, the State cannot urge that the monopoly rights in favour of the Company remained in existence after 1-4-1951. It must be conceded that the monopoly in favour of the Company became void on 1-4-1951 and it follows as a necessary corollary that the liability of the State to restore the advantage it had received under the contract, arose on 1-4-51 when the monopoly became void. Thus there is no force in this contention of the learned Advocate General also. 45. No other point was argued before us, 46. The result is that we do not find any force in this appeal and dismiss it with costs.
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1969 (2) TMI 187
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... ... ..... d to harm the prospects of Mr. Patil's election, that Mr. Atrey was the agent of Mr. Fernandez under the election law, but there is nothing to prove that he did so with the consent of Mr. Fernandez, nor can such consent be implied because in making the statements Mr. Atrey was acting as the editor of his own newspaper the 'Maratha' and not acting for Mr. Fernandez. We are further satisfied that the petitioner has failed to establish in the manner laid down in this Court, that the result of the election was materially affected in so far as Mr. Fernandez was concerned. We are also satisfied that if the petitioner had pleaded corrupt practices against Mr. Fernandez personally (which he did not) the result might have been different. The election petition was it considered and left out the most vital charges but for that the petitioner must thank himself. In the result the appeals failed and as already announced earlier they are dismissed with costs. Appeal dismissed.
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1969 (2) TMI 186
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... ... ..... f this petition complained that he is subjected to solitary confinement while in detention. It must be emphasized that a, detenu is not a convict. Our Constitution, notwithstanding the broad principles of the rule of law, equality and liberty of the individual enshrined therein, tolerates, on account of peculiar conditions prevailing, legislation which is a negation of the rule of law, equality and liberty. But it is implicit in the Constitutional scheme that the power to detain is not a power to punish for offences which an executive authority in his subjective satisfaction believes a citizen to have committed. Power to detain is primarily intended to be exercised in those rare cases when the larger interest of the State demand that restrictions shall be placed upon 'the liberty of a citizen curbing his future activities The restrictions so placed must, consistently with the effectiveness of detention, be minimal. The petition fails and is dismissed. Petition dismissed.
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1969 (2) TMI 185
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... ... ..... urt. He could not decide the matter without doing so. One of the parties was before it and he ought to have asked that party to prove its case. He did nothing. It is, therefore, not wrong for the Settlement officer and the Deputy Director to treat the order as proceeding from the Compensation Officer. Further since proceedings Under Section 202 of the Land Reforms Act were already pending for the decision of the identical question the Compensation Officer ought to have stayed his hands. In our opinion, the order of the Compensation Officer did not have that finality which is claimed for it. That finality attaches only to the order of the Assistant Collector on a reference of an issue from the Compensation Officer. There was thus no finality. 15. The order of the Deputy Director cannot, therefore, be assailed. The appeal must fail and is dismissed but in view of the fact that an amendment of the law deprives the present appellants of a valid plea we make no order about costs.
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1969 (2) TMI 184
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... ... ..... rements of natural justice. Administrative agencies, intend on doing justice and acting expeditiously and enthusiastically, get tripped unwittingly on account of their ignorance of the nuances or even the minimum needs of natural justice and of the obligations under Articles 14 and 19 of the Indian Constitution. The present case, perhaps, is an instance in point. If the average administrative officer had been better informed about his procedural obligations, many an order of his would not have been a casualty on judicial scrutiny and many an unwanted babe in the writ jurisdiction would not have been born; After all, ephemeral victories ultimately do nobody any good. 11. I allow the O. P. to the extent indicated above by striking down Ext. P7 and further direct the State Government to re-hear the appeal in accordance with law. Since the matter is of some gravity and urgency I direct Government to dispose of the appeal within three weeks of the receipt of this order. No costs.
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1969 (2) TMI 183
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... ... ..... the assignment must rank in the order prescribed by Scottish law. He assimilated choses in action to tangible movables, assertine that 'an assignment of the' latter class of property was Governed by the lex situs. In our opinion the same legal position prevails in India and therefore the liability of the appellant in this case to the respondent in India must be deemed to have been extinguished. For these reasons we hold that this appeal should be allowed, the judgment of the Punjab High Court dated 12th September, 1963 in Civil Revision No. 104-D of 1958- should be set aside and the judgment of the Tribunal under the Displaced Pe-sons (Debt Adjustment) Act in case No. 74/11/13 of 1956/1952 should be restored dismissing the claim of the respondent. There will be no order with regard to costs in the High Court. But as directed by this Court on 30th October 1964, while granting special leave, appellant will pay the cost of respondents in this' Court. Appeal allowed,
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1969 (2) TMI 182
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... ... ..... ention must be given effect to. Indeed, we note and that was pointed out by counsel for the respondents that the learned Judge himself has in one decision given effect to the amendment in the same manner that we propose to do in this case; See the decision of the Division Bench in Special Civil Applns. Nos. 78 and 79 of 1963 D/- 28-4-1964 (Bom) by the Division Bench consisting of Mr. Justice N. L. Abhyankar and Mr. Justice E. M. Kantawala. 25. For these reasons, we are unable to accept the decision in AIR1966Bom194 . In our opinion after its amendment by Act 44 of 1963 partitions of every kind are now included within the ambit of Sub-section (7) of Section 38 along with transfers. 26. This was the only point canvassed before us. The Division Bench in referring the case has not framed any question but has expressly stated that the original petition is being referred to us for disposal. In view of what we have said, the petition is dismissed with costs. 27. Petition dismissed.
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1969 (2) TMI 181
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... ... ..... , Bahrain Petroleum Co. Ltd., v. P. J. Pappu (1966)IILLJ144SC , Zamindar of Etiyapuram v. Chidambaram Chetty I.L.R. Mad. 675 19. As to the 4th question we find that the Immovable properties have been sold in execution of a decree ordering sale for the discharge of the encumbrance thereon in favour of the appellant. Section 73(1) proviso (c) therefore applies and the proceeds of sale after defraying the expenses of the sale must be applied in the first instance in discharging the amount due to the appellant. Only the balance left after discharging this amount can be distributed amongst the respondents. It follows that the High Court was in error in holding that the respondents were entitled to rateable distribution of the assets along with the appellant. 20. In the result, the appeals are allowed, the orders passed by the Divisional Bench of the Madras High Court are set aside and the orders passed by the learned Single Judge are restored. There will be no order as to costs.
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1969 (2) TMI 180
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... ... ..... be admitted in evidence but not be acted upon. Of course it cannot be acted upon without its being admitted, but it can be admitted and yet be not acted upon. It every document, upon admission, became automatically liable to be acted upon, the provision in S. 35 that an instrument chargeable with duty but not duly stamped, shall not be acted upon by the Court, would be rendered redundant by the provision that it shall not be admitted in evidence for any purpose. To act upon an instrument is to give effect to it or to enforce it." In our judgment, the learned Judge attributed to S. 36 a meaning which the Legislature did not intend. Attention of the learned Judge was apparently not invited to S. 42(2) of the Act which expressly renders an instrument, when certified by endorsement that proper duty and penalty have been levied in respect thereof, capable of being acted upon as if it had 'been duly stamped. The appeal fails and is dismissed with costs. Appeal dismissed.
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1969 (2) TMI 179
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... ... ..... exception or exemption; (3) That it is no defence to a prosecution under the Act to say- (a) that the accused did not intend to use Kesari dal as food, or (b) that he never intended to sell it as food. Intention or mens rea as such is totally irrelevant to the applicability of Rule 44-A and so is the question of the use to which an article is put Upon this view, we would answer the two questions referred as follows 1. The definition of "sale" contained in section 2(xiii) of the Prevention of Food Adulteration Act is not confined to the sale of articles of food for human consumption only but extends to the sale of any article of food regardless of the use to which it is put. 2. So far as the second question is concerned, upon the view which we have taken on the first question, it does not really survive for consideration. 47. The papers may now be returned to Mr. Justice Deshmukh for disposal of the criminal revision application. 48. Reference answered accordingly.
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1969 (2) TMI 178
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... ... ..... able to confiscation under the provisions of the Customs Act, at least before the launching of the' criminal proceedings. 12. The question "whether after the launching of criminal proceedings, the Magistrate has jurisdiction to make orders with respect to the disposal of goods, seized and liable to confiscation under the provisions of the Customs Act, does nto arise in this case and no opinion is expressed on this question. 13. The learned counsel for Tilak Raj respondent had submitted that this Court may, in exercise of its inherent powers under. Section 561A, Criminal Procedure Code, order the return of the car on spurdari to Tilak Raj respondent as the car was deteriorating. The extraordinary inherent powers of the Court are to be exercised sparingly and in exceptional cases only. The present case is nto such an exceptional case. 14. The result is that the revision petition is allowed. The order of the Sub Divisional Magistrate is set aside. 15. Revision allowed.
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1969 (2) TMI 177
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... ... ..... ases of Khusiram Benarasilal v. Mathuradas Goverdhandass reported in 52 Cal WN 826 and Bijoy Singh v. Bilashroy and Co. reported in A.I.R. 1952 Calcutta 440 are not applicable to the facts of the instant case. In those two cases, arbitrators could not come to the finding arrived at by them without taking evidence and thus were held to have misconducted themselves, inasmuch as they did not hear evidence in arriving at the finding. Such is not the case here. 23. For the reasons stated above, I do not think that this is a fit case where I should exercise my inherent jurisdiction and set aside the decree passed on the award on November 25, 1968 for ends of justice. I am also of the view that the applicant has not been able to show sufficient cause to enable me to condone the delay in making the application and extend the time for making the application for setting aside of the award as prayed. 24. For the reasons aforesaid, this application must fail and is dismissed with costs.
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1969 (2) TMI 176
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... ... ..... ich enforces such action by criminally punishing those who attempt to distribute religious literature clearly violates the First and Fourteenth Amendments to the Constitution." In our opinion the rule laid down in Marsh's case does not apply to the facts of this case. 'Me premises with which we are concerned in this appeal unlike the roads and sidewalks of Chickasaw town were not open for use of the general public. They were intended for certain specified public purposes. They could not be used for any other purpose except with the permission of the concerned authority. Neither the language of Art. 19(1) nor the purpose behind it lend support to the contentions of Mr. Garg. On the other hand their acceptance might lead to the confusion in public offices. Hence we are unable to accept them. In the result the appeal is allowed and the writ petition missed but in the circumstances of the case we direct the parties to bear their own costs throughout. Appeal allowed.
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