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sarin advocate Search this site FAMILY COURT‎ > ‎I.P.C. 498A‎ > ‎HOME‎ > ‎ IMPORTANT JUDGMENT  Important judgment on different topics.  Adverse Possession: "Long possession is not necessarily adverse possession and the prayer clause is not a subsitute for a plea."S.M.Karian v. Bilisahina A.I.R.1964 SC1254. Proving of  Adverse Possession:                  "for the purpose of proving adverse possession/ouster,the defendant must also prove animus possidendi". Mohemmed Ali (dead) by L.R.S. v. Jagdish Kalita and others.(2004)1. SCC 271, 2004 (1) SCCD 242. Starting Point of Limitation: In terms of article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the  defendant's possession become adverse. Saroop Sing v. Banto (2005)8 SCC 330.,2005 (3) SCCD 1643. Essential of Adverse Possession: "A person who claims adverse possession should show: (a)On what date he came into possession, (b)What was the nature of his possession, (c)Whether the factum of possession was known to the other party, (d)How long his possession has continued,and (e)his possession was open and undisturbed. Karnataka Board of wakf v. Govt. of India. (2004) 10 SCC 779: 2004 (3) SCCD 1390. Long Possession: “that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expresslyor impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continutity, in publicity and in extent so as to show that it is adverse to the true owner.The possession must be open and hostile enough so that it is known by the parties Interested in the property. The plaintiff is bound to prove his title as also possession Within 12 years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession.  2011 (1) UAD 378, Chatti Konati Rao & ors verses  Palle Venkata Subba Rao. Equities in Adverse Possession A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence,it is for him to clearly plead and establish all facts necessary to establish adverse possession. 2011(1)UAD 378,Chatti Konati Rao& ors v Palle Venkata Subba Rao. Civil Procedure Code - 1908 Amendment Or. 6. R. 17 Purpose of Amendment – Powers of Court. Power of courts not only discretionary, but is also wide and could be exercised at any stage of the proceedings in the interest of justice – court should adopt a liberal approach and allow a party to take all kind of stand ,which the party may choose and court  should not adopt a hyper technical approach and should allow the amendment – when the other side could be compensated with costs. 2011 (1 ) U.A.D. HC 172  Civil Procedure Code - 1908 - Order 22 Rule 10  SCOPE: Applicability of Section 52 of the Transfer of Property Act, 1882, or Order 1 Rule 10(2) C.P.C Andhra High Court Chappidi Subbareddy (Died) And ... vs Chappidi Narapureddy And Ors. on 29 November, 2005 Equivalent citations: 2006 (3) ALD 516 Civil Procedure Code 1908.---ORDER 23 RULE 1. Maintainability  CIVIL PROCEDURE CODE 1908.---ORDER 23 RULE 1.   Maintainability of second suit.  order 23 rule 1.~ permission to withdraw a suit with liberty to institute a fresh suit after the first one has been withdrawn.Order 23 rule 1. can not be read so as to bar a suit which has already been instituted before the other suit has been abandoned or dismissed. The rule is clear and can only be applied to suit instituted after the withdrawal or abandonment of previous suit. P.A.Muhammed vs Canara bank and another. A.I.R. 1992 Kar 85,  Vimlesh kumari kulshrestha  vs Sambhajirao and another. civil appeal No.2976 of 2oo4,  on February 5, 2008, 2008 (1) SCCD 313  ( SC ). consent decree order 23, rule 3 requirements---A consent decree is merely a agreement between the parties with the seal of the court super added to it. compromise is to be held to be binding it must be signed either by the parties or by their counsel or by both,failing which order 23 , rule3 would not be applicable. A compromise is not binding on such defendants who are not parties thereto.  Sneh gupta vs Devi sarup & other civil appeal No.1085 of 2009 decided on 17- 02 -2009. ( uttarakhand high court)  2009 (1) UAD 541 Consumer forum (" Exparte" order )  Rajeev Hitendra Pathak & Ors  v.  Achyut Kashinath Karekar & Anr., (2011) 9 SCC 541, Honorable Supreme Court held “ that neither the District Forum nor the State Commission had power to review its ‘’ex parte”  orders. Orders of the aforesaid nature were, ‘’ per se” assailable only before the National Commission . DOG BITES---INSURANCE.    Death due to rabies held, death would be accidental. Life insurance Corporation  to pay additional amount.  Lallubhai panchal vs Life Insurance Corporation of India.  A.I.R. 1999 Gujarat 280.    EASEMENTS ACT ( 5 OF 1882 )    Right of privacy ---Section 15.--- Easement neither pleaded nor proved.  If one party opens windows it is equally open to another party to block  them by raising walls.  Anguri versus Jiwan dass.  AIR 1988 SC 2024: ( 1988 ) 2 A.P.L.J. (SC) 70: (1988 ) 4 SCC 189: EVIDENCE ACT,1872;  SECTION---90, Presumption under section 90 of the Evidence Act 1872 in respect of  30 year's old document coming from proper custody relates to the signature, execution and attestation of a document i.e. to its genuineness but it does not give rise to presumption of correctness of every statment  contained in it. The contents of the document are true or it had been acted upon have to be proved like any other fact. Union of India versus Ibrahim Uddin & Anr. 2012 (2) U.A.D. 566 (SC).  FAMILY SETTLEMENT/ ARRANGEMENT:    Unregistered family arrangement---Evidential value.  Registration of a family arrangement would be necessary only if the terms of the family  arrangement are reduced into writing. An unregistered family arrangement could not be used  even to prove that there was a partition .Evidence on the basis of such document could not  be led as it was barred by section 91 of the evidence act.  Bankey bihari vs Surya narain alias Munnoo  A.I.R. 1999 Allahabad. FAMILY SETTLEMENT/ ARRANGEMENT-- Object of -- Essential and its binding effect. Kale and others vs Deputy director of consolidation and others. A.I.R. 1976 SC 807. Joint Hindu Family Property---undivided share of coparcener----can be subject matter of sale / transfer -- but possession cannot be handed over to vendee , unless property partitioned by metes and bound eighter by decree of court in partition suit or by settlment among co-sharers. Relied on Ram Dass v. Sita Bi  JT 2009 (8)SC 224. Gajra Vishnu Gosavi  v. Prakash Nana Saheb Kanbb  2010 (2)SCCD 1105 (SC) Civil Appeal No. 1292 of 2002 with C.A. No. 1293 of 2002. Decided on September 16. 2009 Joint Tenant - If a proceeding is drawn one of the joint tenants, it is presumed that the interest of other joint tenants is represented by the contesting joint tenant. Smt Mridula chaube and Anr vs.  Smt Sushila Mittal and Anr. 2010(1) UAD 567. Joint Tenant – After the death of original tenant, tenancy rights devolve on the heirs jointly and any action of joint tenant binds other joint tenants if not impleaded. Smt Puja Gupta  vs. Pushkar Kumar and another. 2008(72) ALR, 762 Allahabad High Court. INDIAN SUCCESSION ACT,1925, secs. 15 &16 Bonafied Resident---By marriage, a woman acquire the domicile of her husband, and a wife's domicile during her marriage follow the domicile of her husband. Jyoti Bala versus State of uttarakhand & Anr writ petition No. 297 of 2008( S/B ) Decided on 16-12-2008 ( uttarakhand high court ) 2009 (1) UAD 501    LEGAL REPRESENTATIVE SUIT.  Liability of legal representative for the debt of the deceased is limited to the extend of assets of deceased in hands.  1983 SC188, 2002 (2) Civ.C.R 269 (Mad) Gonindamal vs Bhuvneshwar Financing Corporation                      Decided on 19-10-2001.    LIMITATION:    Where no limitation prescribed---It has to  ascertained from residuary provision of article  137 of Limitation Act,1963.  Naveen kumar and etc vs Karnataka Theatres Ltd and others.  A.I.R. 1999 Orissa 113.   LANDLORD AND TENANT Title of--held, that the tenant who has been let into possession by the landlord cannot deny the landlord's title however defective it may be, so long as he has not openly surrendered possession by surrender to his landlord. D. Satyanarayana vs P.Jagdish 1987 (4) SCC 424, confirmed in State of A. P.& Others versus D. Raghukul Pershad (D) by LRS.& Ors. 2012 (2) UAD 558 (SC) U.P.  Act , 13, 1972, Sec. 20 (4) – Benefit  of-- Khadi Gram Udyog Trust vs. Sri Ram Chanderji  Virajman Mandir, reported in A.I.R. 1978 (4) S.C. 37 Wherein  it has been held that the tenant can take advantage of the benefit conferred by Sec 20(4) only when he pays the entire amount of rent due as required under Sec  20(4). It has further been held  that expression ‘entire amount of rent due’ would include rent which has become time barred. In the case of Subhash Chand Jain vs.First Addl. District Judge, A.I.R. 1989 (15) S.C. 300 Wherein it has been held that as the time barred arrear had been deposited by the appellant on October 1, 1977 only, the High Court took the view that entire arrears of rent rent had not been deposited on or before the date of first hearing inasmuch as the entire amount due as arrears of rent had not been deposited within time, the High Court was right in dismissing the writ petition . Followed by Uttarakhand High Court in Smt. Mahaviri & Ors vs. Ghanshyam 2013 (2) UAD 852.  MOTOR ACCIDENT CLAIM TRIBUNAL:    Insurer not liable to pay compensation on death of pillion rider of two wheeler.  Oriental insurance co. limited. versus Sudhakaran k.v and others.  2008 ( 3 ) SCCD 1233 ( SC) Liability to pay compensation:  if the driver of the offending vehicle was not holding valid driving license to drive the vehicle, the Insurance Company could not be held liable to pay compensation. 2016 (3) UAD 79 UTTARAKHAND HIGH COURT, I.C.I.C.I. LOMBARD GENERAL INSURANCE CO. LTD.  VS. SMT BALA DEVI AND OTHERS,  2009 (2) U.D  39 THE ORIENTAL INSURANCE COMPANY LTD  VS.  SRI KESAR SINGH BISHT & OTHERS,  2009 (2) U.D 539 UNITED INDIA INSURANCE CO. LTD.  VS. TARA DEVI AND OTHERS.   NEGOTIABLE INSTRUMENT ACT.     Premature complaint--maintainability.   complaint filed for dishonor of cheque with in 15 days of service of notice, held   premature and not maintainable.   criminal appeal No 1424 of 2007. Decided on Oct 11 2007.   Sarav investment and financial consultant pvt ltd and another   versus llyods register of shipping Indian office staff provident fund and another.   2008 (1) SCCD 216 (S C ).    RECORDS OF RIGHT  Entries in the record of rights  It is well settled that the entries in the record of rights only raise presumption that the person whose name is entered  in the records of right is in possession of the suit lands but the same can be rebutted by addiction of evidence,  documentary or oral on record.  Mahant Ram khilawan dass versus state of M.P.  Decided on March 10.2008  2008 (1) SCCD 471 (S C).  REQUIREMENT OF SERVICE OF A NOTICE:    c.c.Alavi Haji versus Pala petty Muhammedand others.   JT 2007( 7 ) SC 498   2007 ( 2 ) CCSC SPECIFIC RELIEF ACT 1963 cancellation of sale deed under section 31- necessary party- oral evidence contrary to the document- allegation of fraud It is settled law that when in respect of a transation, a written document is executed, any kind of oral evidence, contrary to the document, is not admissible. The allegation of fraud if made by a party, must specify giving role of each person and all those involved in the fraud must be made a party. Bare allegation that plaintiff had not received the full consideration or that the plaintiff signed the documents without reading the contents there of, is not a ground for cancellation of the sale deed. If the plaintiff chooses not to read the documents, he does so at its own peril. IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Judgment  May 05, 2008. CS ( OS ) No. 714/ 2008 Jai Bhagwan verses Rajesh and Ors.( see attachment 1. ) Registration of Unilaterally Executed Deed of Cancellation: The Registration Act, 1908 Section 17 of the Registration Act, 1908 Section 31 of the Registration Act, 1908 The Transfer of Property Act, 1882 The Specific Relief Act, 1963 (i) A deed of cancellation of a sale unilaterally executed by the transferor does not create, assign, limit or extinguish any right, title or interest in the property and is of no effect. Such a document does not create any encumbrance in the property already transferred. Hence such a deed of cancellation cannot be accepted for registration. (ii) Once title to the property is vested in the transferee by the sale of the property, it cannot be divested unto the transferor by execution and registration of a deed of cancellation even with the consent of the parties. The proper course would be to re-convey the property by a deed of conveyance by the transferee in favour of the transferor. (iii) Where a transfer is effected by way of sale with the condition that title will pass on payment of consideration, and such intention is clear from the recital in the deed, then such instrument or sale can be cancelled by a deed of cancellation with the consent of both the parties on the ground of non-payment of consideration. The reason is that in such a sale deed, admittedly, the title remained with the transferor. (iv) In other cases, a complete and absolute sale can be cancelled at the instance of the transferor only by taking recourse to the Civil Court by obtaining a decree of cancellation of sale deed on the ground inter alia of fraud or any other valid reasons. M/S.Latif Estate Line India Ltd vs Mrs. Hadeeja Ammal on 11 February, 2011 W.A. NOS. 592 & 938 OF 2009 W.A. NO. 592 OF 2009  SPECIFC PERFORMANCE OF CONTRACT  (SPECIFIC RELIEF ACT. 1963 --Section 19 and 20.)  It is a settled law that an endeavor should be made by the court to give effect to the  terms of the agreement .  It is also a settle law that an agreement is to be read as a whole so as to enable the  court to ascertain the true intention of the parties. Uncertain agreement for sale can not be given effect. Civil appeal No.2976  of 2004  Decided on February 5, 2008.  Vimlesh Kumari Kulshrestha vs Sambhajirao and anoher.  2008 (1) SCCD 313 (SC) Unregistered Agreement to Sell Unregistered agreement to sell -- whether legally enforceable -- whether direction can be given to registered the said agreement without availing the remedy provided under the registeration Act. Vijay Kumar Sharma vs Devesh Behari Saxena on 16 November, 2007 Equivalent citations: AIR 2008 All 66, 2008 (1) AWC 664 Held--because the plaintiff did not avail the remedy provided under Registration Act for getting a document registered. The agreement dated 22.01.1993 is unregistered document. The learned court below has passed a decree for mandatory injunction directing the defendant to get the said agreement registered before the registering authority within one month and then to execute the sale deed in favour of the plaintiff in terms of that agreement. In our view, such direction could not be issued in the present suit. Section 23 of the Registration Act lays down that "no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution". Section 25 provides that If, owing to urgent necessity or unavoidable accident, any document executed, is not presented for registration till after the expiration of the time prescribed under sections 23 and 24, the Registrar, in cases where the delay in presentation does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the proper registration-fee, such document shall be accepted for registration. Section 71 lays down that every Sub-Registrar who refuses to register a document shall make an order of refusal and record his reasons. Section 72 provides an appeal to the Registrar against the order of Sub-Registrar, where refusal is made on the ground of denial of execution. Section 77 provides that where the Registrar refuses to order the document to be registered, under section 72 or a decree under section 76, any person claiming under such document, or his representative, assign or agent, may, within thirty days after the making of the order of refusal, institute in a Civil Court, a suit for a decree directing the document to be registered. These provisions show that a suit for a decree directing for registration of the document can be instituted after recourse has been taken to the provisions of sections 71 and 72 of the Act. The Full Bench consisting of 5 Hon'ble Judges has held in the case of Bhagwan SINGH and Anr versus Khuda Baksh and Anr 1881 (III) ILR 397 that suit for claiming a decree directing the registration of document without having recourse to the provisions of section 73 of Registration Act is not maintainable. It is specifically held by the Full Bench that moving the application under section 73 of Registration Act is condition precedent for institution of such suit.. This Court in the case of Surendra Kumar v. Amarjeet Singh and Ors. AIR 2004 Allahabad 335 has held that unregistered document of contract for sell in respect of immovable property cannot be enforced under Specific Relief Act. Therefore, in our view the decree of specific performance of the agreement to sell dated 22.01.1993 passed by court below is wholly illegal and cannot be sustained. Registered document -- genuineness and presumption. The court can not accept the genuineness of the document simply because it is registered. Registeration of any document does not ensure genuineness either of the contents of the documents or execution of the same. Registeration gives rise presumption that a document has been executed and registered.However,this presumption can be rebutted by adducing evidence. 2013 (1) U.A.D 147 UHC. Ashok kumar & others versus State of Uttarakhand & others. Readiness and Willingness Section 20 and 16 (c) Section 16 (c)”postulates continuous readiness and willingness on the part of plaintiff '" It is a condition precedent for obtaining a relief of grant of specific performance of contract. Azhar Sultana versus B.Rajamani and others civil appeal No. 1077 of 2009 Decided on February. 17,2009 2009 (1) SCCD 525 (SC) Readiness and willingness:- Lack of pleading--- provision does not require any specific phrasealogy.Compliance with the readiness and willingness has to be in spirit and substance and not in letter and form.                             Continuous readiness and willingness could be seen from the conduct of the plaintiff as a whole.                              Faquir Chand and Others V. Sudesh kumari 2006 (3) Apex Court Judgment 259 (SC)    WILL:  PROBATE/letter of administration can not be granted in respect of incomplete will.   Anil Kak versus Kumari Sharada Raje and others.   2008 ( 3 ) SCCD 1261 ( SC ). Execution of Will--Suspicious Circumstances:- A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will.     Proof of Will--Section 63 of Succession Act---Section 68 of Evidence Act: "Stated generally, a will has to be proved like any other document, the test to be applied being, the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainity. Since section 63 of the Succession Act requires a will to be attested, it can not be used as evidence until, as required by section 68 of the Evidence Act, one attesting witness at least has been called  for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. H.Venkatachala Iyengar v. B.N.Thimmajumma 1959 supp (1) SCR 426; Jaswant kaur v. Amrit kaur (1977) 1 SCC 369; S.R. Srinivasa & others v. S.Padmavathamma 2010 (2) UAD 221 Supreme Court. Difference Between Registered and Unregistered Will:-  Held that,under Clause (a) of Sub - Section (2) of Section 41 of The Registration Act, 1908, the Registrar had the obligation of satisfying that the Will, or the instrument purporting to be Will, was executed by the testator. If the Registrar was satisfied about the execution of the purported Will by the testator, he certainly could register the Will. However, we make it absolutely clear that satisfaction of the Registrar that the Will was executed by the testator is no certificate that the same was executed in fact by the testator. At the same time, registration of a Will does not give more authenticity to the Will. An unregistered Will or a registered Will has no difference. A Will come into force only when the same is accepted by a competent Court to be a Will executed by the testator, who is supposed to have executed the same. This opinion of the court may be had by applying for probate or letters of administration annexed with the Will or in any other collateral proceedings. SMT. SNEHLATA BHANDARI & ANR. Versus STATE OF UTTARAKHAND & ORS. 2013 (1) UAD 610, UTTARAKHAND HIGH COURT    HOME ACT ON WOMEN RIGHT. JUDGMENT USEFUL FOR W O M E N  A R T I C A L  N E W S. D I R E C T O R Y. ABBREVIATIONS Subpages (1): EVIDENCE ACT, 1872 Č Ċ JAIBHAGWANVS.RAJESH.pdf (33k)narinder sarin, May 10, 2011, 9:23 AM v.1ď ĉ SEC91INDIANEVIDENCEACT.docx (11k)narinder sarin, May 31, 2011, 8:52 AM v.1ď Comments You do not have permission to add comments. View as Desktop My Sites Powered By Google Sites

Drafting

How to Draft a Perfect Case: A successful lawyer must know the basic principal of drafting of a plaint, written statement; petition and affidavit etc. Pleadings are foundation of the claims of parties. Well drafted pleading play a very important role to get justice for their client. Pleading in a Suit: Pleading is defined in the code of civil procedure in O 6, RULE 1.as given below :-   "pleading" shall mean plaint or written statement." Order 6 Rule 2 says pleading to state material facts and not evidence. 2 (1)every pleading shall contain and contain only a statement in concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved. Basic principle of pleading is that "pleading should refer  to fact alone, it should not be argumentative averment."(M/s strong construction v. state of u.p. AIR 2005 All 224), Mandatory requirements--see-- Jitu Patnaik versus Sanatan Mohakud & Others 2012 (1) U.A.D. 767 (SC). Pleading--held-- The court cannot travel beyond the pleadings as no party can lead the evidence on an issue/point not raised in the pleadings and in case,such evidence has been adduced or a finding of fact has been recorded by the court, it is just to be ignored. Union of India versus Ibrahim Uddin & Anr 2012 (2) U.A.D. 566 (SC)  Object of Pleading:-"It is well settled position of law that the whole object of pleading is to give fair notice to each party of what the opponent's case is, and to ascertain, with precision, the points on which the parties agree and those on which they differ, and thus to bring the parties to a definite issue. The purpose of pleading is also to eradicate irrelevancy. In order to have a fair trial it is imperative that the party should state the essential facts so that other party may not be taken by surprise. The parties thus themselves know what are matters left in dispute and what facts they have to prove at the proceeding and are thus given an opportunity to bring forward such evidence as may be appropriate. The main object of pleadings is to find out and narrow down the controversy between the parties. Contention which are not based on the pleadings cannot be permitted to be raised either at the time of arguments or at the appellate stage."The New India Assurance Co. Ltd. vs. Surender singh & others. (HC) UAD 2007, 423.   There are two types of pleading mainly in a suit: 1. Plaint.  2. Written statement. Plaint Order 7 Rule 1 of civil procedure code says that plaint shall contain the following particulars:- 1. The name of the court in which the suit is brought. 2. The name, description and place of residence of the plaintiff. 3. The name, description and place of residence of the defendant, so far as they can be ascertained. 4. Where the plaintiff or defendant is a minor or a person of unsound mind, a statement to that effect 5. The fact constituting the cause of action and when it arose. 6. The fact showing that the court has jurisdiction; 7. The relief which the plaintiff claim; 8. Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or so relinquished :and 9. a statement of the value of the subject matter of the suit for the purposes  of jurisdiction and of court fees, so far as the case admits. Written Statement:  A 'defence' called the written statement ,in general this is a reply of plaint ,in which defendant deny or admit the each and every allegation or facts given in the plaint. Denial or admission must be Para wise and clear. It is settled law that denial for want of knowledge is no denial at all. The provisions contained in Order 8 Rule 5 require pleadings to be answered specifically in written statement. 2016 (3)UAD 30 SC Muddasani venkata narsaiah (D) through LRS versus Muddasani sarojana. In the written statement defendant can put his case also under the heading additional plea, and can states new facts or ground which is necessary to defeat the opponent. If defendant want to put his own claim against the plaintiff he can put it by way of set- off and counter claim u/o 8 Rule 6 and 6A of C.P.C. NOTE:-The facts which remain unanswered by the defendant, it will be presumed that the said fact was admitted by the defendant. In general the fact which is taken to be admitted need not be proved. Pleading must be unambiguous clear and correct .Carelessly prepared pleading can spoil the suit. Time for Filing of Written Statement:  Time for filing written statement is fix for 30 days from the date of service of summon on him and maximum time limit from the date of service of summons is ninety days. Order, 8 Rule 1 Provision of Order 8,Rule 1.are directory in nature even after expiry of stipulated period court can extend time to file written statement. (AIR 2002 SC 2487, Rameshwar Lal v. Daya Nand AIR 2005.) Frame of Suit: Order 2 Rule 1 says:-  "Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subject in dispute and to prevent further litigation concerning them." There are two important things in order 2 rule 1, firstly, before framing a suit pleader should be remembered that "as far as practicable, it should be so framed as to afford ground for final decision of the subject in disputes." and secondly, to prevent further litigation concerning them.    Order 2 Rule 2 says:- that "every suit shall include the whole of the claims which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinguish any portion of his claim in order to bring the suit  within the jurisdiction of any court. Actually the main object of this rule is to avoid the multiplicity of suits, so its requires that every suit shall include  the whole of the claim which the plaintiff is entitled to make in respect of the cause of action"  If he omits or relinquishes any portion of his claim he shall not afterwards sue in respect of the portion so omitted  or relinquishes ( Order 2 Rule2 sub rule 3 ) but if he omits or relinquished any relief with the permission of the court he shall afterward can sue for the relief so omitted or relinquished ( Sub rule 3 of Rule 2 C.P.C.) Fundamental Rule of Pleading:- 1. No amount of evidence can be looked into, upon a plea which was never put forward in the pleading. A question which did arise from the pleadings and which was not the subject matter of an issue , cannot be decided by the court.  It is well settled that no amount of evidence can be looked into to find a case for which there has been absolutely no foundation in the pleadings. (Vide AIR 1930 P.C. 57 - Siddik Mohammed Shah v. Mt. Saran and others, Elizabeth v. Saramma - 1984 K.L.T. 606, Trojan & Co., v. Nagappa - AIR 1953 SC 235 , Bhagwadi Prasad v. Chandramaul - AIR 1966 SC 735).  2.  A court cannot make out a case not pleaded , the court should confine its decision to the question raised in pleading nor can it grant a relief which is not claimed and which does not flow from the facts and the cause of action alleged in the plaint . 3.  A factual issues cannot be raised as considered for the first time in a second appeal.2009 (1) SCCD 220 SC. Bachhaj Nahar vs. Nilima Mandal and others.     "Material facts" and "Particulars"--- Distinction-- A distinction between "Material facts" and "particulars" however, must not be overlooked. "Material facts" are primary or basic facts which must be pleaded by the plaintiff or by the defendant in support of the case set up by him either to prove his cause of action or defense."Particulars" on the other hand, are details in support of material facts pleaded by the party.They amplify, refine and embelish material facts by giving distinctive touch to the basic contours of a picture already drawn so as to make it full, more clear and more informative."Particulars" thus ensure conduct of fair trial and would not take the opposite party by surprise. All "material facts" must be pleaded by the party in support of the case set up by him. Since the object and purpose is to enable the opposite party to know the case he has to meet with, in the absence of pleading, a party cannot be allowed to lead evidence.Failure to state even a single material fact, hence, will entail dismissal of the suit or petition. Particulars, on the other hand, are the details of the case which is in the nature of evidence a party would be leading at the time of trial." Philipps v. Philipps and others (1878) 4 Q.B.D. 127. Virender Nath Gautam v. Satpal Singh and Others 2007 (3) SCC 617. "All basic and primary facts which must be proved at the trial by a party to establish the existence of cause of action or defence are material facts.The bare allegations are never treated as material facts." Jitu Patnaik v. Sanatan Mohakud & Others.  2012 (1) UAD 767 SC

Written statement (ws)

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DRAFTING AND PLEADING‎ > ‎

WRITTEN STATEMENT

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SOME IMPORTANT DEFENCES

WRITTEN STATEMENT (Meaning):

 Written statement is the defense of the defendants. A 'defense' called the written statement ,in general this is a reply of plaint ,in which defendant deny or admit the each and every allegation or facts given in the plaint. Denial or admission must be Para wise and clear. In the written statement defendant can put his case also under the heading additional plea, and can states new facts or ground which is necessary to defeat the opponent. If defendant want to put his own claim against the plaintiff he can put it by way of set- off and counterclaim u/o 8 Rule 6 and 6A of C.P.C.

NOTE:-The facts which remain unanswered by the defendant, it will be presumed that the said fact was admitted by the defendant. In general the fact which is taken to be admitted need not be proved. Pleading must be unambiguous clear and correct .Carelessly prepared pleading can spoil the suit.

"if a plea which was relevant for the purpose of maintaining a suit had not been specifically traversed, the Court was entitled to draw an inference that the same had been admitted. A fact admitted in terms of Section 58 of the Evidence Act need not be proved." (v) (2010) 10 Supreme Court Cases 512 (MAN KAUR v. HARTAR SINGH SANGHA):- 

Drafting of Written Statement:

Order VIII provides for the filing of a written- statement, the particulars to be contained therein and the manner of doing so. It requires what a written statement should contain. Before drafting the written statement it is the duty of the defendant to study the plaint thoroughly and all the documents submitted by the plaintiff with the plaint in support of his claim. After the thorough study of the plaint and supported documents a para wise answer of the plaint can be prepared. Order VIII of the Code of Civil Procedure deals with the written statement, set off and counterclaim.

Time for Filing of Written Statement (Order VIII Rule 1) :

The text of Order VIII, Rule 1, as it stands now, reads as under :-

"l. Written Statement.- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defense :

Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons".

Three things are clear. Firstly, a careful reading of the language in which Order VIII, Rule 1 has been drafted, shows that it casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the Court and also does not specifically take away the power of the Court to take the written statement on record though filed beyond the time as provided for.Secondly, the nature of the provision contained in Order VIII, Rule 1 is procedural. It is not a part of the substantive law. Thirdly,the object behind substituting Order VIII, Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the Court for quick relief and also to the serious inconvenience of the Court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same.The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried.

Time for filing written statement is fix for 30 days from the date of service of summons on him and maximum time limit from the date of service of summons is ninety days. Order, 8 Rule 1

Provision of Order 8,Rule 1.are directory in nature even after expiry of stipulated period court can extend time to file written statement. (AIR 2002 SC 2487, Rameshwar Lal v. Daya Nand AIR 2005.)

 Duty of defendant to produce document upon which relief is claimed or relied upon by him (Order VIII Rule 1A.):-

"(1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his 

defence or claim for set-off or counterclaim, he shall enter such document in a list, and 

shall produce it in Court when the written 

statement is presented by him and shall, at

the same time, deliver the document and a copy thereof, to be filed with the written statement.

(2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to documents-

(a) produced for the cross-examination of the plaintiff s witnesses, or

(b) handed over to a witness merely to refresh his memory."

NOTE:-

Order VII Rule 14 of the Civil Procedure Code (CPC) deals with the documents of the Plaintiff and Order VIII Rule 1-A of the CPC with regard to the documents of the Defendant. Besides this, Order XIII deals inter alia with the production of documents. This relates to production by both the parties, the Plaintiff and the Defendant. Under Order XIII Rule 1 of the CPC, the original documents are required to be produced by the parties and received by the Court. 

 New Facts Must be Specially Pleaded (Order VIII Rule 2.):-

Order VIII,Rule 2. requires that the defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the-transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise. or would raise issues of fact not arising out of the plaint, as for instance,fraud, limitation, release,payment, performance, or facts showing illegality.

Denial to be Specific(Order VIII Rule 3.):-

Order VIII Rule 3. requires that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff. but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.

 "if a plea which was relevant for the purpose of maintaining a suit had not been specifically traversed, the Court was entitled to draw an inference that the same had been admitted. A fact admitted in terms of Section 58 of the Evidence Act need not be proved." (v) (2010) 10 Supreme Court Cases 512 (MAN KAUR v. HARTAR SINGH SANGHA):- 

Evasive denial(Order VIII Rule 4.):-

Rule 4 of Order VIII of C.P.C. says that where a defendant denies an allegation of fact in a plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances. 

Specific Denial(Order VIII Rule 5.):-

 [(1)] Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against person under disability.

Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.

[(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.

(3) In exercising its discretion under the proviso to sub- rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.

(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.]"

Note:  It is settled law that denial for want of knowledge is no denial at all. The provisions contained in Order 8 Rule 5 require pleadings to be answered specifically in written statement. 2016 (3)UAD 30 SC Muddasani venkata narsaiah (D) through LRS versus Muddasani sarojana.

Note: Procedure Where Written Statement by the Defendant is not Filed. 

"Order VIII provides the procedure where written statement by the defendant is not filed. Order VIII Rule 5(2)(4) provides that where the defendant has not filed a pleading, it shall be lawful for the court to pronounce judgment on the basis of facts contained in the plaint and after pronouncing the judgment a decree is required to be drawn up in accordance with such judgment. Under Order VIII Rule 10 where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the court, the court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. This rule gives a discretion to the Court either to pronounce the judgment against the defendant or make such order in relation to the suit as it thinks fit."

While interpreting Order VIII, this Court in Balraj Taneja & Another v. Sunil Madan & Another [(1999) 8 SCC 396] held that merely because written statement is not filed the Court should not proceed to pass judgment blindly and observed thus:-

"The court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the court. In a case, specially where a written statement has not been filed by the defendant, the court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant, it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the courts satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement."

Supreme Court of India

Union Of India And Others vs Manager M/S Jain And Associates on 6 February, 2001

In Badat and Co., v. East India Trading Co.,(1) hon'ble Court observed regarding the requirements of the written statement under Order VIII, Rules 3, 4 and 5, as follows

" These three rules from an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non- compliance. The written-statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively, but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the. admission itself being proof, no other proof is necessary."

Supreme Court of India 

Badat And Co vs East India Trading Co on 10 May, 1963

Equivalent citations: 1964 AIR 538, 1964 SCR (4) 19

Particular of Set-of to be given in Written Statement ( Order VIII Rule 6 CPC)

A reading of Rule 6 of Order VIII CPC would show that following conditions have to be satisfied before a defendant is entitled to set-off under that Rule:-

"A defendant may claim a set-off under this rule if the following conditions are satisfied, but not otherwise--

I. The suit must be one for the recovery of money.

II. As regards the amount claimed to be set-off--

(a) it must be an ascertained sum of money;

(b) such sum must be legally recoverable;

(c) it must be recoverable by the defendant or by all the defendants if more than one;

(d) it must be recoverable by the defendant from the plaintiff or all the plaintiffs if more than one. Thus, where th defendant is sued by the agent, he cannot set-off what is due to him from the principal as the principal is not the plaintiff;

(e) it must not exceed the pecuniary limits of the jurisdiction of the court in which the suit is brought; and

(f) both parties must fill, in the defendant's claim to set-off the same, character as they fill in the plaintiff's suit."

NOTE:

"The right of set-off is a ground of defense and is required by Order VIII rule 6, of the Civil Procedure Code to be pleaded as a part of the written statement of the defendant. If established it is an answer to the plaintiff's claim wholly or pro tanto as the case might be. The defendant, if entitled to a set-off, is not liable to make satisfaction of the claim made against him or so much of it as equals the amount which he is entitled to set-off. It a set-off equal to the plaintiff's claim is established it is an absolute defense entitling the defendant to a decree of dismissal of the suit. The processual law provides that the written statement containing a set-off has the same effect as a plaint in a cross suit so as to enable the court to pronounce a final judgment and a single decree in respect of both the original claim and the set-off: See Order VIII, rule 6(2) and Order XX, rule 19, of the Civil Procedure Code. This, however, does not mean that a written statement containing a plea of set-off is to be treated as a plaint in all respects and for all purposes." 

16." Principles of equitable set-off is recognized in Rule 6 of Order VIII CPC. The essence of such a claim is that there must be some connection between the plaintiff claim for a debt and the defendant's claim to set-off, which will make it equitable to dry up the defendant to a separate suit. In these cases where cross demands arise out of the same transaction or are so connected in their nature and circumstances that can be looked upon as part of one transaction, equitable set-off is permissible. This principle is made applicable even in those cases where the claim of the defendant is for an unascertained sum like that of damages but arising out of same transaction."

Delhi High Court

Crb Capital Markets Ltd. vs Smt. Bimla Devi Sahney (Deceased ... on 31 May, 2005

Equivalent citations: IV (2005) BC 53, 2006 132 CompCas 788 Delhi

Counter-Claim by Defendant (Order VIII Rule 6-A): 

(1) A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:

Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counterclaim of the defendant within such period as may be fixed by the Court.

(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to the plaints.

NOTE:-

In the case of Ramesh Chand Ardawatiya (supra), "28. Looking to the scheme of Order VIII as amended by Act No. 104 of 1976, honorable Apex Court held, " we are of the opinion, that there are three modes of pleading or setting up a counter-claim in a civil suit. Firstly, the written statement filed under Rule 1 may itself contain a counter-claim which in the light of Rule 9 read with Rule 6A would be a counter-claim against the claim of the plaintiff preferred in exercise of legal right conferred by Rule 6A. Secondly, a counter-claim may be preferred by way of amendment incorporated subject to the leave of the Court in a written statement already filed. Thirdly, a counterclaim may be filed by way of a subsequent pleading under Rule 9. in the latter two cases, the counter-claim though referable to Rule 6A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court, either under Order VI, Rule 17 of the C.P.C. if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under Order VIII, Rule 9 of the C.P.C. if sought to be placed on record by way of subsequent pleading.

Hon'ble Madras High Court in a case of 

Southern Ancillaries Private ... vs Southern Alloy Foundries ... on 28 March, 2003

Equivalent citations: AIR 2003 Mad 416, (2003) 2 MLJ 56 held in para 25.

25." We sum up the legal position as under:-

i] The defendant can make a counter claim even after filing the written statement but that should be before the commencement of recording of evidence.

ii] Generally an amendment once allowed will relate back to the date of filing of the plaint/written statement.

iii] Court may make it clear while allowing such amendment that it will not relate back to the date of filing of the plaint/written statement.

iv] Even if in the order allowing amendment it is not stated that the order would not relate back, it will be open to the aggrieved party to contend that the 

order (allowing amendment) would not relate back at the time of the trial of the suit.

v] If after allowing the amendment, the concerned party does not take care to amend the plaint/written statement within the period allowed or within 14 days where no period is fixed, or within the extended period, the plaintiff or defendant, as the case may be, shall not be permitted to amend after the expiration of the period and the Court has to only consider the unamended plaint or written statement."

6B. Counter claim to be stated

(Order VIII Rule 6-B):

Where any defendant seeks to rely upon any ground as supporting a right of counter claim, he shall, in his written statement, state specifically that he does so by way of counter claim

6C. Exclusion of counter claim (Order VIII Rule 6-C):

Where a defendant sets up a counter claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter claim, apply to the court for an Order that such counter claim may be excluded, and the court may, on the hearing of such application make such Order as it thinks fit

6D. Effect of discontinuance of suit- (Order VIII Rule 6-D):

If in any case in which the defendant sets up a counter claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter claim may nevertheless be proceeded with

6E.Default of plaintiff to reply to counter claim (Order VIII Rule 6-E):

If the plaintiff makes default in putting in a reply to the counter claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter claim made against him, or make such Order in relation to the counter claim as it thinks fit

6F. Relief to defendant where counter claim succeeds (Order VIII Rule 6-F):

Where in any suit a set off or counter Claim is established as a defence against the plaintiffs claim, and any balance is found due to the plaintiff or the defendant, as the case may be, the court may give judgment to the party entitled to such balance

6G. Rules relating to written statement to apply (Order VIII Rule 6-G):

The rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter claim

7. Defence or set off founded on separate grounds- (Order VIII Rule 7):

Where the defendant relies upon several distinct grounds of defence or set off or counter claim founded upon separate and distinct facts, they shall be stated, as far as may be, separately and distinctly

HIGH COURT AMENDMENT

Karnataka- After Rule 7 and before Rule 8, add the following as Rule 7-A:

7-A, Where the defendant seeks the permission of the Court under Rule 8 of Order 1 of this Code to defend the suit on behalf of or for the benefit of himself and other persons having the same interest as the defendant in the subject-matter of the suit he shall file an application supported by an affidavit setting out the particulars detailed in sub-rule (2) of Rule 4 of Order VII of this Code Notice of such an application shall be given to all parties to the suit, and if the permission sought is granted the plaint may be amended by inserting a statement that the defendant is with the leave of the Court sued as the representative of at ::sons interested in subject-matter of the suit (3031967)

8. New ground of defence(Order VIII Rule 8):

Any ground of defence which has arisen after the institution of the Suit or the presentation of a written statement claiming a set off or counter claim may be raised by the defendant or plaintiff, as the case may be, in his written statement

8A. Omitted by Act No. 46 of 1999 (w.e.f. 1-7-2002).

9. Subsequent pleadings(Order VIII Rule 9):

No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit: but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same

HIGH COURT AMENDMENT

Bombay, Dadra and Nagar Haveli- For Rule 9, substitute the following:

9 Subsequent pleading No pleading subsequent to the written statement of the defendant other than by way of defence to a set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same 

10. Procedure when party fails to present written statement called for by Court.(Order VIII Rule 10):

Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may b, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up.

Note: Procedure Where Written Statement by the Defendant is not Filed. "Order VIII provides the procedure where written statement by the defendant is not filed. Order VIII Rule 5(2)(4) provides that where the defendant has not filed a pleading, it shall be lawful for the court to pronounce judgment on the basis of facts contained in the plaint and after pronouncing the judgment a decree is required to be drawn up in accordance with such judgment. Under Order VIII Rule 10 where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the court, the court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. This rule gives a discretion to the Court either to pronounce the judgment against the defendant or make such order in relation to the suit as it thinks fit."

Supreme Court of India, Union Of India And Others vs Manager M/S Jain And Associates on 6 February, 2001

                          

                                               

                                               

                                                               

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Judgement on bail bond

Local bailor bailer bail bond

On 20-Jul-2016 4:34 pm, "Shadab" <emails@manupatra.com> wrote:

MANU/SC/0132/1978

Equivalent Citation: AIR1978 SC 1594 , 1978 CriLJ1703 , 1979 ( )JLJ1 (SC), 1979 MhLJ372 , 1979 MPLJ332 (SC), (1978 )4 SCC47 , (1978 ) SCC(Cri)485 , [1979 ]1 SCR335 , 1978 (10 )UJ747

IN THE SUPREME COURT OF INDIA

Criminal Misc. Petition No. 1649 of 1978

Decided On: 24.08.1978

Appellants:Moti Ram and Ors.
Vs.
Respondent:State of Madhya Pradesh

Hon'ble Judges/Coram:
D.A. Desai and V.R. Krishna Iyer, JJ.

Counsels: 
For Appellant/Petitioner/Plaintiff: S.S. Khanduja, Adv

For Respondents/Defendant: I.N. Shroff and S. K. Gambhir, Advs.

Subject: Criminal

Acts/Rules/Orders: 
Code of Criminal Procedure, 1973 (CrPC) - Section 389(1), Code of Criminal Procedure, 1973 (CrPC) - Section 436, Code of Criminal Procedure, 1973 (CrPC) - Section 436(2), Code of Criminal Procedure, 1973 (CrPC) - Section 437(2), Code of Criminal Procedure, 1973 (CrPC) - Section 441(1), Code of Criminal Procedure, 1973 (CrPC) - Section 441(2), Code of Criminal Procedure, 1973 (CrPC) - Section 441(3), Code of Criminal Procedure, 1973 (CrPC) - Section 445

Cases Referred: 
Mrs. Maneka Gandhi vs. Union of India (UOI) and Anr.MANU/SC/0133/1978

Authorities Referred: 
Encyclopaedia Britannica, Vol. I. 15th Edn Micro edn.

Case Note:

Criminal - bail - Sections 389 (1), 436, 436 (2), 437 (2), 441 (1), 441 (2), 441 (3) and 445 of Criminal Procedure Code, 1973 - whether bail includes release on one's own bond with or without sureties - petition filed against refusal to grant bail ordered by Magistrate on grounds of not furnishing huge amount of surety demanded from petitioner who is a lowly paid mason - refusal of affordable surety offered by petitioner on grounds of such properties being situated in different district is highly unjustifiable - Apex Court observed that when it has powers to release convicts on their own bonds without sureties surely suspects could be released in same manner - held, in interests of social justice and to ensure equal treatment to all citizens petitioner should be released on his own bond for affordable sum of surety.

ORDER

V.R. Krishna Iyer, J.

1. The law in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread", lampooned Anatole France. The reality of this caricature of equal justice under the law, whereby the poor are priced out of their liberty in the justice market, is the grievance of the petitioner. His criminal appeal pends in this Court and he has obtained an order for bail in his favour "to the satisfaction of the Chief Judicial Magistrate". The direction of this Court did not spell out the details of the bail, and so, the magistrate ordered that a surety in a sum of Rs. 10,000/- be produced which, in actual impact, was a double denial of the bail benefit. For one thing the miserable mason the petitioner before us, could not afford to procure that huge sum or manage a surety of sufficient prosperity. Affluents do not befriend indigents. For another, the magistrate made an odd order refusing to accept the suretyship of the petitioner's brother because he and his assets were in another district.

2. If mason and millionaire were treated alike, egregious integrality is an inevitability. Likewise, geographic allergy at the judicial level makes mockery of equal protection of the laws within the territory of India. India is one and not a conglomeration of districts, untouchably apart.

3. When this Court's order for release was thus frustrated by magisterial intransigence the prisoner moved this Court again to modify the original order "to the extent that petitioner be released on furnishing surety to the tune of Rs. 2,000/- or on executing a personal bond or pass any other order or direction as this Hon'ble Court may deem fit and proper". From this factual matrix three legal issues arise (1) Can the Court, under the CrPC, enlarge, on his own bond without sureties, a person undergoing incarceration for a non-bailable offence either as undertrial or as convict who has appealed or sought special leave ? (2) If the Court decides to grant bail with sureties, what criteria should guide it in quantifying the amount of bail, and (3) Is it within the power of the court to reject a surety because he or his estate is situate in a different district or State ?

4. This formulation turns the focus on an aspect of liberty bearing on bail jurisprudence. The victims, when suretyship is insisted on or heavy sums are demanded by way of bail or local bailors alone are persona grata, may well be the weaker segments of society like the proletariat, the linguistic and other minorities and distant denizens from the far corners of our country with its vast diversity. In fact the grant of bail can be stultified or made impossibly inconvenient and expensive if the court is powerless to dispense with surety or to receive an Indian bailor across the district borders as good or the sum is so excessive that to procure a wealthy surety may be both exasperating and expensive. The problem is plainly one of the human rights, especially freedom vis-a-vis the lowly. This poignant import of the problem persuaded the Chamber Judge Justice V.R. Krishna Iyer to invite the Supreme Court Bar Association and the Citizens for Democracy to assist the Court in decoding the Code and its provisions regarding bail. The Kerala State Bar Federation was permitted to intervene and counsel for the parties also made submissions. We record our appreciation of the amici curiae for their services and proceed to discuss the triple issues formulated above.

5. There is already a direction for grant of bail by this Court in favour of the petitioner and so the merits of that matter do not have to be examined now. It is a sombre reflection that many little Indians are forced into long cellular servitude for little offences because trials never conclude and bailors are beyond their meagre means. The new awareness about human rights imparts to what might appear to be a small concern relating to small men a deeper meaning. That is why we have decided to examine the question from a wider perspective bearing in mind prisoner's rights in an international setting and informing ourselves of the historical origins and contemporary trends in this branch of law. Social Justice is the signature tune of our Constitution and the little man in peril of losing his liberty is the consumer of Social Justice.

6. There is no definition of bail in the Code although offences are classified as bailable and non-bailable. The actual Sections which deal with bail, as we will presently show, are of blurred semantics. We have to interdict judicial arbitrariness deprivatory of liberty and ensure 'fair procedure' which has a creative connotation after Maneka Gandhi MANU/SC/0133/1978 : [1978]2SCR621 .

7. Before we turn to the provisions of the Code and dwell on the text of the Sections we may as well remember what Justice Frankfurter said :

there is no surer way to misread a document than to read it literally Massachusetts B. and Insurance Co. v. 352 U.S. 128,.

8. Speaking generally, we agree with the annotation of the expression 'bail' given in the American Jurisprudence (2nd Edn. Vol. 8, Article 2, p. 783) :

The term 'bail bond' and 'recognizance' are used interchangeably in many bail statutes, and quite generally without distinction by the courts, and are given a practically identical effect.

According to the American Jurisprudence, Article 6, p. 785, there is power in the court to release the defendant without bail or on his own recognizance. Likewise, the definition of bail as given in Webster's Third New International Dictionary :

The process by which a person is released from custody.

The concept of bail has a long history briefly set out in the publication on 'Programme in Criminal Justice Reform' :

The concept of bail has a long history and deep roots in English and American law. In medieval England, the custom grew out of the need to free untried prisoners from disease-ridden jails while they were waiting for the delayed trials conducted by travelling justices. Prisoners were bailed, or 'delivered, to reputable third parties of their own choosing who accepted responsibility for assuring their appearance at trial. If the accused did not appeal, his bailor would stand trial in his place.

Eventually it became the practice for property owners who accepted responsibility for accused persons to forfeit money when their charges failed to appear for trial. From this grew the modern practice of posting a money bond through a commercial bondsman who receives a cash premium for his service, and usually demands some collateral as well. In the event of non-appearance the bond is forfeited, after a grace period of a number of days during which the bondsman may produce the accused in court Vera Institute of Justice Ten-year Report 1961-71 p. 20.

9. It sounds like a culture of bonded labour, and yet are we to cling to it ! Of course, in the United States, since then, the bondsman emerged as a commercial adjunct to the processes of criminal justice, which, in turn, bred abuses and led to reform movements like the Manhattan Bail Project. This research project spurred the National Bail Conference, held in 1964, which in its crucial chain reaction provided the major impetus to a reform of bail law across the United States. The seminal statutory outcome of this trend was the enactment of the Bail Reform Act of 1966 signed into law by President Lyndon B. Johnson. It is noteworthy that Chief Justice Earl Warren, Attorney General Robert Kennedy and other legal luminaries shared the view that bail reform was necessary. Indeed, this legislative scenario has a lesson for India where a much later Criminal Procedure Code 1973 has largely left untouched ancient provisions on this subject, incongruous with the Preamble to the Constitution.

10. An aside. Hopefully, one wishes that socio-legal research projects in India were started to examine our current bail system. Are researchers and jurists speechless on such issues because pundits regard these small men's causes not worthwhile ? Is the art of academic monitoring of legislative performance irrelevant for India ?

11. The American Act of 1966 has stipulated, inter alia, that release should be granted in non-capital cases where there is reasonable assurance that the individual will reappear when required; that the Courts should make use of a variety of release options depending on the circumstances; that information should be developed about the individual on which intelligent selection of alternatives should be based.

12. The Manhattan Bail Project, conducted by the Vera Foundation and the Institute of Judicial Administration at New York University School of Law, found that about sixty-five percent of all felony defendants interviewed could be recommended for release without bail. Of 2,195 defendants released in this way less than one percent failed to appear when required. In short, risk of financial loss is an insubstantial deterrent to flight for a large number of defendants whose ties with the community are sufficient to bring them to court.

13. The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.

14. It is interesting that American criminological thinking and research had legislative response and the Bail Reforms Act, 1966 came into being. The then President, Lyndon B. Johnson made certain observations at the signing ceremony :

Today, we join to recognize a major development in our system of criminal justice : the reform of the bail system.

This system has endured-archaic, unjust and virtually unexamined-since the Judiciary Act of 1789.

The principal purpose of bail is to insure that an accused person will return for trial if he is released after arrest.

How is that purpose met under the present system ? The defendant with means can afford to pay bail. He can afford to buy his freedom. But the poorer defendant cannot pay the price He languishes in jail weeks, months and perhaps even years before trial.

He does not stay in jail because he is guilty.

He does not stay in jail because any sentence has been passed.

He does not stay in jail because he is any more likely to flee before trial.

He stays in jail for one reason only-because he is poor....

(emphasis added)

15. Coming to studies made in India by knowledgeable Committees we find the same connotation of bail as including release on one's own bond being treated as implicit in the provisions of the CrPC. The Gujarat Committee from which we quote extensively, dealt with this matter in depth :

The bail system, as we see it administered in the criminal courts to-day, is extremely unsatisfactory and needs drastic change. In the first place it is virtually impossible to translate risk of non-appearance by the accused into precise monetary terms and even its basic premise that risk of financial loss is necessary to prevent the accused from fleeing is of doubtful validity. There are several considerations which deter an accused from running away from justice and risk of financial loss is only one of them and that too not a major one. The experience of enlightened Bail Projects in the United States such as Manhattan Bail Project and D.C. Bail Project shows that even without monetary bail it has been possible to secure the presence of the accused at the trial in quite a large number of cases. Moreover, the bail system causes discrimination against the poor since the poor would not be able to furnish bail on account of their poverty while the wealthier persons otherwise similarly situate would be able to secure their freedom because they can afford to furnish bail. This discrimination arises even if the amount of the bail fixed by the Magistrate is not high, for a large majority of those who are brought before the Courts in criminal cases are so poor that they would find it difficult to furnish bail even in a small amount.

(emphasis added)

16. The vice of the system is brought out in the Report :

The evil of the bail system is that either the poor accused has to fall back on touts and professional sureties for providing bail or suffer pre-trial detention. Both these consequences are fraught with great hardship to the poor. In one case the poor accused is fleeced of his moneys by touts and professional sureties and sometimes has even to incur debts to make payment to them for securing his release; in the other he is deprived of his liberty without trial and conviction and this leads to grave consequences, namely : (1) though presumed innocent he is subjected to the psychological and physical deprivations of jail life; (2) he loses his job, if he has one, and is deprived of an opportunity to work to support himself and his family with the result that burden of his detention falls heavily on the innocent members of the family, (3) he is prevented from contributing to the preparation of his defence; and (4) the public exchequer has to bear the cost of maintaining him in the jail Report of the Legal Aid Committee appointee by the Govt. of Gujarat 1971, and headed by the then Chief Justice of the State, Mr. Justice P.N. Bhagwati p. 185.

17. The Encyclopaedia Britannica brings out the same point even in more affluent societies :

bail, procedure by which a judge or magistrate sets at liberty one who has been arrested or imprisoned, upon receipt, of security to ensure the released prisoner's later appearance in court for further proceedings.... Failure to consider financial ability has generated much controversy in recent years, for bail requirements may discriminate against poor people and certain minority groups who are thus deprived of an equal opportunity to secure their freedom pending trial. Some courts now give special consideration to indigent accused persons who, because of their community standing and past history, are considered likely to appear in court Encyclopaedia Britannica, Vol. I. P. 736 (15th Edn) Micro edn.

We should suggest that the Magistrate must always bear in mind that monetary bail is not a necessary element of the criminal process and even if risk of monetary loss is a deterrent against fleeing from justice, it is not the only deterrent and there are other factors which are sufficient deterrents against flight. The Magistrate must abandon the antiquated concept under which pre-trial release could be ordered only against monetary bail. That concept is out-dated and experience has shown that it has done more harm than good. The new insight into the subject of pre-trial release which has now been developed in socially advanced countries and particularly the United States should now inform the decisions of the Magistrates in regard to pre-trial release. Every other feasible method of pre-trial release should be exhausted before resorting to monetary bail. The practice which is now being followed in the United States is that the accused should ordinarily be released on order to appear or on his own recognizance unless it is shown that there is substantial risk of nonappearance or there are circumstances justifying imposition of conditions on release.... If a Magistrate is satisfied after making an enquiry into the condition and background of the accused that the accused has his roots in the community and is not likely to abscond, he can safely release the accused on order to appear or on his own recognizance... Report of the Legal Aid Committee appointed by the Govt. of Gujarat 1971 P. 185.

(emphasis added)

18. A latter Committee with Judges, lawyers, members of Parliament and other legal experts, came to the same conclusion and proceeded on the assumption that release on bail included release on the accused's own bond :

.... We think that a liberal policy of conditional release without monetary sureties or financial security and release on one's own recognizance with punishment provided for violation will go a long way to reform the bail system and help the weaker and poorer sections of the community to get equal justice under law. Conditional release may take the form of entrusting the accused to the care of his relatives or releasing him on supervision. The court or the authority granting bail may have to use the discretion judiciously. When the accused is too poor to find sureties, there will be no point in insisting on his furnishing bail with sureties, as it will only compel him to be in custody with the consequent handicaps in making his defence Report of the Expert Committee on Legal Aid-Processual Justice to the People, May 1973.

19. Thus, the legal literature, Indian and Anglo-American, on bail jurisprudence lends countenance to the contention that bail, loosely used, is comprehensive enough to cover release on one's own bond with or without sureties.

20. We have explained later that the power of the Supreme Court to enlarge a person during the pendency of a Special Leave Petition or of an appeal is very wide, as Order 21 Rule 27 of the Supreme Court Rules discloses. In that sense, a consideration of the question as to whether the High Court or the subordinate courts have powers to enlarge a person on his own bond without sureties may not strictly arise. Even so, the guidelines which prevail with the Supreme Court when granting suspension of sentence must, in a broad sense, have relevance to what the Code indicates except where special circumstances call for a different course. Moreover, the advocates who participated-many of them did-covered the wider area of release under the Code, whether with or without sureties, and that is why we consider the relevant provisions of the Code in some detail.

21. Let; us now examine whether there is anything in the provisions of the Code which make this meaning clearly untenable.

22. A semantic smog overlays the provisions of bail in the Code and prisoners' rights, when cast in ambiguous language become precarious. Where doubts arise the Gandhian talisman becomes a tool of interpretation : "Whenever you are in doubt...apply the following test. Recall the face of the poorest and the weakest man whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use of him." Law, at the service of life, must respond interpretatively to raw realities and make for liberties.

23. Primarily Chapter XXXIII is the nidus of the law of bail. Section 436 of the Code speaks of bail but the proviso makes a contradistinction between 'bail' and 'own bond without sureties'. Even here there is an ambiguity, because even the proviso comes in only if, as indicated in the substantive part, the accused in a bailable offence is prepared to give bail'. Here, 'bail' suggests 'with or without sureties'. And, 'bail bond' in Section 436(2) covers own bond. Section 437(2) blandly speaks of bail but speaks of release on bail of persons below 16 years of age, sick or infirm people and women. It cannot be that a small boy or sinking invalid or pardanashin should be refused release and suffer stress and distress in prison unless sureties are haled into a far-off court with obligation for frequent appearance ! 'Bail' there suggests release, the accent being on undertaking to appear when directed, not on the production of sureties. But Section 437(2) distinguishes between bail and bond without sureties.

24. Section 445 suggests, especially read with the marginal note, that deposit of money will do duty for bond 'with or without sureties'. Section 441(1) of the Code may appear to be a stumbling block in the way of the liberal interpretation of bail as covering own bond with and without sureties. Superficially viewed, it uses the words 'bail' and 'own bond' as antithetical, if the reading is literal. Incisively understood, Section 441(1) provides for both the bond of the accused and the undertaking of the surety being conditioned in the manner mentioned in the sub-section. To read 'bail' as including only cases of release with sureties will stultify the sub-section; for then, an accused released on his own bond without bail, i.e., surety, cannot be conditioned to attend at the appointed place. Section 441(2) uses the word 'bail' to include 'own bond' loosely as meaning one or the other or both. Moreover, an accused in judicial custody, actual or potential, may be released by the court to further the ends of justice and nothing in Section 441(1) compels a contrary meaning.

25. Section 441(2) and (3) use the word 'bail' generically because the expression is intended to cover bond with or without sureties.

26. The slippery aspect is dispelled when we understand the import of Section 389(1) which reads :

389 (1) : Pending any appeal by a convicted person the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.

The court of appeal may release a convict on his own bond without sureties. Surely, it cannot be that an under-trial is worse of than a convict or that the power of the court to release increases when the guilt is established. It is not the court's status but the applicant's guilt status that is germane. That a guilty man may claim judicial liberation pro tempore without sureties while an undertrial cannot is a reductio ad absurdum.

27. Likewise, the Supreme Court's powers to enlarge a prisoner, as the wide words of Order 21 Rule 27 (Supreme Court Rules) show, contain no limitation based on sureties. Counsel for the State agree that this is so, which means that a murderer, concurrently found to be so, may theoretically be released on his own bond without sureties while a suspect, presumed to be innocent, cannot be. Such a strange anomaly could not be, even though it is true that the Supreme Court exercises wider powers with greater circumspection.

28. The truth, perhaps, is that that indecisive and imprecise language is unwittingly used, not knowing the draftsman's golden rule :

In drafting it is not enough to gain a degree of precision which a person reading in good faith can understand, but it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand (Lux Genthum Lex-Then and Now 1799-1974, p. 7)

29. If sureties are obligatory even for juveniles, females and sickly accused while they can be dispensed with, after being found guilty, if during trial when the presence to instruct lawyers is more necessary, an accused must buy release only with sureties while at the appellate level, suretyship is expendable, there is unreasonable restriction on personal liberty with discrimination writ on the provisions. The hornet's nest of Part III need not be provoked if we read 'bail' to mean that it popularly does, and lexically and in American Jurisprudence is stated to mean, viz., a generic expression used to describe judicial release from custodia juris. Bearing in mind, the need for liberal interpretation in areas of social justice, individual freedom and indigent's rights, we hold that bail covers both-release on one's own bond, with or without sureties. When sureties should be demanded and what sum should be insisted on are dependent on variables.

30. Even so, poor men-Indians are in monetary terms, indigents young persons, infirm individuals and women are weak categories and courts should be liberal in releasing them on their own recognisances put whatever reasonable condition you may.

31. It shocks one's conscience to ask a mason like the petitioner to furnish sureties for Rs. 10,000/-. The magistrate must be given the benefit of doubt for not fully appreciating that our Constitution, enacted by We, the People of India", is meant for the butcher, the baker and the candle-stick maker-shall we add, the bonded labour and pavement dweller.

32. To add insult to injury, the magistrate has demanded sureties from his own district; (We assume the allegation in the petition). What is a Malayalec, Kannadiga, Tamilian or Andhra to do if arrested for alleged misappropriation or theft or criminal trespass in Bastar, Port Blair. Pahalgam of Chandni Chowk ? He cannot have sureties owning properties in these distant places. He may not know any one there and might have come in a batch or to seek a job or in a murcha. Judicial disruption of Indian unity is surest achieved by such provincial allergies. What law prescribes sureties from outside or non-regional language applications ? What law prescribes the geographical discrimination implicit in asking for sureties from the court district? This tendency takes many forms, sometimes geographic, sometimes linguistic, sometimes legalistic. Article 14 protects all Indians qua Indians, within the territory of India. Article 350 sanctions representation to any authority, including a court, for redress of grievances in any language used in the Union of India. Equality before the law implies that even a vakalat or affirmation made in any State language according to the law in that State must be accepted everywhere in the territory of India save where a valid legislation to the contrary exists. Otherwise, an adivasi will be unfree in Free India, and likewise many other minorities. This divagation has become necessary to still the judicial beginnings, and to inhibit the process of making Indians aliens in their own home-land. Swaraj is made of united stuff.

33. We mandate the magistrate to release the petitioner on his own bond in a sum of Rs. 1,000/-.

An After word

34. We leave it to Parliament to consider whether in our socialist republic, with social justice as its hallmark, monetary superstition, not other relevant considerations like family ties, roots in the community, membership of stable organisations, should prevail for bail bonds to ensure that the 'bailee' does not flee justice. The best guarantee of presence in court is the reach of the law, not the money tag. A parting thought. If the indigents are not to be betrayed by the law including bail law, re-writing of many processual laws is an urgent desideratum; and the judiciary will do well to remember that the geo-legal frontiers of the Central Codes cannot be disfigured by cartographic dissection in the name of language of province.

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State of H.P. v. Desh Raj, 2017 SCC OnLine HP 1481, decided on 4.10.2017]

Victim’s statement is of great importance in cases under POCSO Act

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