Monday, March 15, 2010

Suraj Lamp & Industries (P) Ltd. Thru. DIR v. State of Haryana
5749 - 2010(1) LAW HERALD (P&H) (SC) 321
IN THE SUPREME COURT OF INDIA
Before
The Hon’ble Mr. Justice R.V. Raveendran
The Hon’ble Mr. Justice J.M. Panchal
Special Leave Petition (C) No. @ Computer Code No. 5804 of 2009
Suraj Lamp & Industries (P) Ltd. Thru. DIR
v.
State of Haryana
{Decided on 15/05/2009}
For the Petitioner(s)/Appellant(s) : Mr. K.V. Vishwanathan, Sr. Advocate, Mr. Jayant Kumar Mehta, Mr. Neeraj Chaudhari, Mr. Sandeep Phogat, Advocates.
IMPORTANT POINT
Registration of Sale deed--Power of Attorney sales instead of execution and registration of regular sale deeds--Any process which interferes with regular transfers under deeds of conveyance properly stamped, registered and recorded in the registers of the Registration Department, is to be discouraged and deprecated.
(A) Registration Act, 1908, S. 17 and 49--Registration of Sale deed--Power of Attorney sales instead of execution and registration of regular sale deeds--It enables large scale evasion of income tax, wealth tax, stamp duty and registration fees thereby denying the benefit of such revenue to the Govt. and the public--Power of attorney sales indirectly lead to growth of real estate mafia and criminalization of real estate transportations--Any process which interferes with regular transfers under deeds of conveyance properly stamped, registered and recorded in the registers of the Registration Department, is to be discouraged and deprecated. (P. 10 to 12)
(B) Registration Act, 1908, S. 17 and 49--Registration of Sale deed--Power of Attorney sales--Power of Attorney Sales as noticed above was adopted to overcome the restrictions/prohibitions in terms of allotment and the rules of allotment of DDA governing the allotment of flats--Such transactions irregular and illegal being contrary to the rules and terms of allotment--Further, in the absence of a registered deed of conveyance, no right, title or interest in an immovable property could be transferred to the purchaser.
(C) Registration Act, 1908, S. 17 and 49--Registration--Registration of a document gives notice to the world that such a document has been executed--Registration provides safety and security to transaction relating to immovable properly, even if the document is lost or destroyed. (P.8)
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Harpreet Singh v. State of Punjab
12 - 2010(1) LAW HERALD (P&H) 325
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mrs. Justice Sabina
Criminal Appeal No. 193-SB of 1998
Harpreet Singh
v.
State of Punjab
{Decided on 15/01/2010}
For the Appellant: Mr. B.P.S. Dhillon, Advocate.
For the Respondent: Mr. J.S. Sandhu, Assistant Advocate General, Punjab
Indian Penal Code, 1860, S.306 & 498-A--Abetment of suicide--Reduction of sentence--Conviction of sentence under S.306 not challenged--Appellant has undergone one year seven months and twenty nine days of actual sentence--Appellant, a young man, 21 years of age at time of alleged occurrence and one young child to look after--It is a fit case where sentence qua imprisonment is liable to be reduced to already undergone by appellant. (P. 3 & 4)
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Dharam Pal & Ors. v. Hans Raj & Ors.
13 - 2010(1) LAW HERALD (P&H) 327
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice L.N. Mittal
Regular Second Appeal No. 2049 of 2007
Dharam Pal & Ors.
v.
Hans Raj & Ors.
{Decided on 15/01/2010}
For the Appellants: Mr. RK Arya, Advocate, for the appellants
For the Respondents: Mr. Sandeep Arora, Advocate.
Specific Relief Act, 1963, S.37--Permanent Injunction--Suit property fully described on plaint and site plan annexed--Defendants nor raising any objection regarding description of suit property--Defendants also produced site plan wherein suit property is mentioned to be situated in said village--Thus, description or identity of suit property was not in dispute--Finding of lower appellate Court that area of suit property not property described or identified in head note set aside--Lower appellate Court has not discussed evidence nor has given finding regarding merits of dispute--Matter remanded for fresh decision. (P.8 & 10)
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Daya Singh & Anr. v. Gurdev Singh (Dead) by L.Rs. & Ors.
5016 - 2010(1) LAW HERALD (P&H) (SC) 329
IN THE SUPREME COURT OF INDIA
Before
The Hon’ble Mr. Justice Tarun Chatterjee
The Hon’ble Mr. Justice Aftab Alam
Civil Appeal No.5339 of 2002
Daya Singh & Anr.
v.
Gurdev Singh (Dead) by L.Rs. & Ors.
{Decided on 07/01/2010}
IMPORTANT POINT
Limitation--Cause of action--Mere existence of a wrong entry in the revenue records does not, in law, give rise to a cause of action within the meaning of Article 58 of the Act.
(A) Limitation Act, 1963, Art. 58--Limitation--Cause of action--Suit for declaration and injunction filed after 18 years of the compromise between parties--Suit could only be filed within three years from the date when the cause of action arose--Right to sue accrued when a clear and unequivocal threat to infringe that right by the defendants when they refused to admit the claim of the appellants, i.e. only seven days before filing of the suit--Suit was filed by the appellants within 3 years from the date of infringement--High Court not justified in holding that suit was barred by limitation
(P. 7 to 9)
(B) Limitation Act, 1963, Art. 58--Limitation--Cause of action--Mere existence of a wrong entry in the revenue records does not, in law, give rise to a cause of action within the meaning of Article 58 of the Act. (P.9)
(C) Limitation Act, 1963, Art. 58--Limitation--Cause of action--Whether the mere existence of an adverse entry in the revenue records had given rise to cause of action as contemplated under Article 58 or it had accrued when the right was infringed or threatened to be infringed--Right to sue accrued when a clear and unequivocal threat to infringe that right by the defendants when they refused to admit the claim of the appellants, i.e. only seven days before filing of the suit--Suit was filed by the appellants within 3 years from the date of infringement--Cause of action for the purposes of Article 58 of the Act accrues only when the right asserted in the suit is infringed or there is a clear and unequivocal threat to infringe that right--Therefore, the mere existence of an adverse entry into the revenue record cannot give rise to cause of action. (P.7 to 11)
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Suman Bansal v. Dharam Singh Verma & Ors.
2010(1) LAW HERALD (P&H) 333
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice L.N. Mittal
Civil Revision No. 2562 of 2009
Suman Bansal
v.
Dharam Singh Verma & Ors.
{Decided on 13/01/2010}
For the Petitioner: Mr. Mahavir Sandhu, Advocate.
For the Respondent: Mr. Anmol Rattan Sidhu, Senior Advocate with Mr. Rajesh Kumar, Advocate.
Specific Relief Act, 1963--Civil Procedure Code, 1908, O.39, R.1 & 2--Temporary injunction--Suit for permanent injunction and mandatory injunction--Application for temporary injunction restraining defendants from interfering in peaceful possession of plaintiff--Defendant did not file any application to seek any temporary injunction against plaintiff to injunct her from raising construction over suit land--Direction by Additional District Judge that neither party would raise construction over suit property without getting it partitioned illegal and unjustified. (P.6)
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Sanjiv Kumar & Anr. v. State of Punjab
15 - 2010(1) LAW HERALD (P&H) 334
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice T.P.S. Mann
Criminal Appeal No. 436-SB of 1998
Sanjiv Kumar & Anr.
v.
State of Punjab
{Decided on 11/01/2010}
For the Appellants: None.
For the Respondent: Mr. P.S.Sidhu, Additional Advocate General, Punjab.
Indian Penal Code, 1860, S.308 r/w S.34--Conviction--Probation--Participation of appellant in occurrence established from testimonies of complainant and his injured brother--Medical evidence corroborates ocular account stated by them--No serious enmity between parties--Trial Court justified convicting appellant for offence under Section 308 IPC as injury found on person of injured was dangerous to life--Appellant facing criminal prosecution for last 15 years--Appellant not attributed use of any weapon in causing solitary injury on person of injured--He had only hurled a brick bat which hit injured--Appellant not previous convict--Therefore, a case is made out for extending benefit of probation to appellant--Conviction of appellant maintained--However, in lieu of sentence he is ordered to be released on probation. (P.9, 10 11 & 12)
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Darshan Singh v. State of Punjab
2010(1) LAW HERALD (P&H) (SC) 336
IN THE SUPREME COURT OF INDIA
(VACATION BENCH)
Before
The Hon’ble Mr. Justice Dalveer Bhandari
The Hon’ble Mr. Justice Ashok Kumar Ganguly
Criminal Appeal No. 1057 of 2002
Darshan Singh
v.
State of Punjab
{Decided on 15/01/2010}
For the Appearing Parties : Mr. R.K. Kapoor, Mrs. Sanjana J. Bali, Ms. Shweta Kapoor, Mr. Harish Chandra Pant, Ms. Mansi Dhiman, Mrs. Gunjan Sinha, Mr. Anis Ahmed Khan, Mr. D.P. Singh, Mr. Premjit Singh Dhaliwal, Ms. Shuchta Srivastava, Kuldip Singh, Mr. Ajay Pal, Mr. Satyapal Khushal Chand Pasi, Advocates.
IMPORTANT POINT
Right to private defence--It is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self creation--A mere reasonable apprehension is enough to put the right of self defence into operation
(A) Indian Penal Code, 1860, S. 96, 97 and 100--Right to private defence--Dispute regarding partition of land--Incident resulted in death of the deceased when appellant fired from his licensed gun--Accused claimed right of private defence--Trial Court held the presence of both eye-witnesses at the time of occurrence highly doubtful as no pellet recovered from the injuries of these witnesses and thus, the possibility of these injuries on their person having been fabricated at a later stage cannot be ruled out--Benefit given to the accused--High Court reversed the trial Court's judgment of acquittal and convicted the accused--When a shot was fired from a 12-bore gun and if no pellet was recovered, then the trial court rightly concluded that the injuries were not caused by a fire arm--Appellant had the serious apprehension of death or at least the grievous hurt when he exercised his right of private defence to save himself--Role attributed to the appellant fully covered by his right of private defence--High Court has unnecessarily laid stress on the point of recovery of the gun--Impugned judgment of the High Court set aside and that of the trial Court restored. (P. 37 , 58 , 63,64 & 65)
(B) Indian Penal Code, 1860, S. 96, 97 and 100--Right to private defence--Dispute regarding partition of land--A shot was fired from a 12-bore gun and no pellet was recovered--Trial court rightly concluded that the injuries were not caused by a fire arm--Held , that as per the facts of the case, the appellant had the serious apprehension of death or at least the grievous hurt when he exercised his right of private defence to save himself--The role attributed to the appellant fully covered by his right of private defence (P. 58)
(C) Indian Penal Code, 1860, S. 96, 97 and 100--Right to private defence--Availability of--Right of private defence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property--Right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self creation. (P. 33)
(D) Indian Penal Code, 1860, S. 96, 97 and 100--Right to private defence--Principles-
1. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.
2. A mere reasonable apprehension is enough to put the right of self defence into operation.
3. The right of private defence commences as soon as a reasonable apprehension arises and it is coterminous with the duration of such apprehension.
4. It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.
5. In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
6. It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.
7. The accused need not prove the existence of the right of private defence beyond reasonable doubt.
8. The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.
9. A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened. (P. 58)

2010(1) LAW HERALD (P&H) 349
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Sham Sunder
C.R. No. 1794 of 2008
Satbir Singh & Ors.
v.
Rajesh & Ors.
{Decided on 27/07/2009}
For the Revision-petitioner: Mr. Harkesh Manuja, Advocate.
For the Respondent No. 3: Mr. Neeraj Khanna, Advocate.
For the Respondents No. 1 and 2: Exparte.
IMPORTANT POINT
Accident--Compensation--Fake driving licence--Insurance company have right to recover amount of compensation from owner to truck--Attachment of truck before releasing amount--Not illegal.
(A) Motor Vehicles Act, 1988, S.173--Motor Accident--Multiple injuries--Compensation--Fake driving licence--Liability of insurance company--Attachment of truck--Driving licence held by driver of truck found fake--Tribunal rightly held that Insurance Company shall have a right to recover amount of compensation from owner of truck--Before releasing amount to claimant truck owner directed to furnish security but when he failed to do so, truck in question was attached, as there was likelihood of disposal of same--At same time he was granted another opportunity to furnish security--Interest of insurance company required to be protected by Tribunal in view of directions given in award--No illegality in impugned order. (P.8)
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2010(1) LAW HERALD (P&H) 350
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Sham Sunder
R.S.A. No. 1038 of 2005
Avtar Singh & Ors.
v.
Gurdial Singh & Ors.
{Decided on 04/08/2009}
For the Appellant: Ms. Shashi Ghuman, Advocate.
For the Respondent: Mr. Sandeep Arora, Advocate.
Specific Relief Act, 1963--Specific Performance--Agreement to Sell--Finding of fact that since as per agreement entire sale consideration was paid then why sale deed was not executed on same day--Previous agreement allegedly entered into between parties 10-12 day before present agreement to sell in respect of same land for sale considerations of Rs.20,000/-.--Agreement to sell not scribed by regular deed writer despite availability--One of attesting witnesses to agreement to sell was accused with plaintiff-appellant in criminal case for causing injuries on person of defendant/respondent who was real uncle of the plaintiff/appellant--There was strained relations between parties as such it was not at all probable for defendant/respondent to execute agreement to sell in favour of plaintiff appellant--No legal and valid agreement to sell was executed in favour of plaintiff/appellant--Suit for specific performance rightly dismissed. (P.9)
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K.B. Sharma & Ors. v. Shri Keerti Karan Dharni
2010(1) LAW HERALD (P&H) 353
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Sham Sunder
Civil Revision No. 7068 of 2008
K.B. Sharma & Ors.
v.
Shri Keerti Karan Dharni & Ors.
{Decided on 06/08/2009}
For the Revision-Petitioner: Mr. Arun Palli, Senior Advocate, with Mr. Sunil Garg, Advocate.
For the Respondent No. 1: Ex-parte.
For respondent No. 2: Mr. G.S. Sandhawalia, Advocate.
IMPORTANT POINT
Amendment of written statement--Permissibility--Affidavit of three witnesses in the shape of examination-in-chief already had been tendered by plaintiff when application for amendment written statement was filed--Defendant did not cross-examine those witnesses for three hearings--Trial had commenced, when application for amendment of written statement was filed--Amendment sought could not be allowed.
(A) Civil Procedure Code, 1908, O.6, R.17--Amendment of written statement--Permissibility--After commencement of trial the amendment of pleadings cannot be allowed until and unless the party seeking amendment establishes that despite due diligence it could not raise pleas sought to be incorporated by way of amendment--Suit was filed for specific performance of agreement of exchange--Affidavit of three witnesses in the shape of examination-in-chief already had been tendered by plaintiff when application for amendment written statement was filed--Defendant did not cross-examine those witnesses for three hearings--Held that Trial had commenced, when application for amendment of written statement was filed--Amendment sought could not be allowed--Moreover, amendment not essential for decision of the case. (P.9, 12 & 12)
(B) Civil Procedure Code, 1908, O.6, R.17--Amendment of written statement--After commencement of trial, the amendment of pleadings cannot be allowed, until and unless the party seeking amendment establishes that despite due diligence it could not raise pleas sought to be incorporate by way of amendment.
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Sardara Singh v. Baljit Singh & Ors.
956 - 2010(1) LAW HERALD (P&H) 355
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Sham Sunder
Civil Revision No. 5604 of 2007
Sardara Singh
v.
Baljit Singh & Ors.
{Decided on 10/08/2009}
For the Petitioner: Mr.O.P. Goyal, Senior Advocate with Ms. Priya Khurana, Advocate.
For the Respondent Nos. 1 and 4: Mr. Mansur Ali, Advocate.
For the Respondent No.3: Ex-parte.
IMPORTANT POINT
Rebuttal Evidence--O.18, R.3 would not give a right to plaintiff to lead evidence in rebuttal on issues, of which the onus of proof was on him.
Expert evidence--Application of plaintiff/respondent for examining Handwriting and finger prints expert for proving the execution of agreement to sell, when the case was fixed for rebuttal--Cannot be allowed.
(A) Civil Procedure Code, 1908, O.18, R.3--Specific Relief Act, 1963-- Evidence Act, 1872--Agreement to Sell--Execution of--Proof--Rebuttal evidence--Application of plaintiff/respondent for examining Handwriting and finger prints expert for proving the execution agreement to sell, when the case was fixed for rebuttal--Cannot be allowed--Trial Court was wrong in coming to conclusion that in rebuttal the plaintiffs could be granted an opportunity to examine handwriting and finger prints expert, to prove the execution of agreement to sell which they were required to examine by leading evidence in affirmative--They could lead evidence is rebuttal only in respect of those issues of which onus lay upon defendant--Impugned order set aside. (P.7 & 8)
(B) Civil Procedure Code, 1908, O.18, R.3--Rebuttal Evidence--O.18, R.3 would not give a right to plaintiff to lead evidence in rebuttal on issues, of which the onus of proof was on him--Accepting such an interpretation would be to ignore a vital part of O.18, R.3 CPC--The rule clearly stipulates that the party beginning, may at his option, either produce his evidence on these issues, or reserve by way of answer to the evidence produced by other parties”--No matter how liberally a provision, in the statute is required to be interpreted, it cannot be amended while constructing a statutory provision, Court cannot reconstruct it--The rule consciously provides the parties with an option either to produce evidence in support of issues or to reserve it by making a statement to that effect. (P.7)
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Smt. Savita Yadav v. Ram Chander & Ors.
957 - 2010(1) LAW HERALD (P&H) 358
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Sham Sunder
Regular Second Appeal No.2594 of 2008
Smt. Savita Yadav
v.
Ram Chander & Ors.
{Decided on 07/08/2009}
For the Appellant: Mr. Sanjay Vij, Advocate.
Transfer of Property Act, 1882, S.106--Ejectment--Suit for possession and recovery of arrear of rent--Defendant/appellant not denying in written that plaintiff was allotted flat in question--She also admitted possession the flat on basis of oral agreement--Agreement to sell was alleged to have entered into between her and power of attorney of plaintiff--No receipt regarding payment of entire sale consideration of amount was produced--Concurrent findings of fact that defendant/appellant was inducted in the flat as a tenant at a monthly rent and she paid rent only for a period of two months and thereafter she failed to do so--A notice under S.106 of Transfer of Property Act, was duly served upon defendant/appellant and her tenancy was terminated--Plaintiff was entitled to decree for possession and recovery of amount with interest. (P.11 to 13)
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Chand Krishan Khosla v. State of Punjab & Ors.
958 - 2010(1) LAW HERALD (P&H) 360
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Adarsh Kumar Goel
R.S.A. No.305 of 1987 (O&M)
Chand Krishan Khosla
v.
State of Punjab & Ors.
{Decided on 04/11/2009}
For the Appellant: Mr. Pradip Bhandari, Advocate.
For the Respondent No.1: Mr. Suvir Sehgal, Addl.A.G., Punjab
IMPORTANT POINT
Recovery--Reclamation charges--Section 70 of the Act could be invoked by a party to avoid unjust enrichment to a party for whose benefit person seeking to recover cost of said benefit had acted.
(A) Civil Procedure Code, 1908, S.11--Contract Act, 1872, S.70--Reclamation charges--Recovery of--Resjudicata--Previous suit for injunction relating to proceedings under Pepsu Reclamation of Land Act--It was held in that suit that notification sought had not been duly published in official gazette and on that account proceedings were void and recovery under said Act could not be effected--Present suit seeking recovery under Section 70 of contract Act--Is maintainable--Decree invalidating earlier proceedings will not be resjudicata. (P.9)
(B) Contract Act, 1872, S.70--Recovery--Reclamation charges--Section 70 of the Act could be invoked by a party to avoid unjust enrichment to a party for whose benefit person seeking to recover cost of said benefit had acted. (P.12)
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Jai Parkash & Ors. v. State Bank of Patiala & Ors.
959 - 2010(1) LAW HERALD (P&H) 363
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Sham Sunder
C.R. No. 4202 of 2009
Jai Parkash & Ors.
v.
State Bank of Patiala & Ors.
{Decided on 28/07/2009}
For the Revision-Petitioner: Mr. R.K. Doon, Advocate.
Civil Procedure Code, 1908, O.21, R.72--Constitution of India, Art.227--Loan--Suit for recovery--Execution proceedings--Failure of judgment debtor to pay entire decretal amount--He even did not appear, in the Executing Court--Court below issued sale warrant but none came forward, to give the bid, in auction--Application under Order 21, Rule 72 CPC filed by Decree-holder, for giving the bid, at the time of sale of property of judgment-debtor, was allowed--Interest awarded by the concerned Court, cannot be varied, in these proceedings--In case, the judgement debtor, had any grievance, against the judgement and decree passed, against him, he could challenge the same, in the higher Court--No infirmity in the impugned order. (P.3, 6 & 7)
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2010(1) LAW HERALD (P&H) 364
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice L.N. Mittal
Civil Revision No. 2114 of 2009
Devender Choudhary
v.
Dhanvir & Anr.
{Decided on 13/01/2010}
For the Petitioner: Mr. Amit Jain, Advocate.
Civil Procedure Code, 1908, O.39, R.1 & 2--Specific Relief Act, 1963--Temporary injunction--Delay and laches--Specific performance--Agreement to sell--Plaintiff approached defendant no. 1 for execution of sale deed on 15.4.2005 and again on 15.3.2006 when he refused to execute sale deed--In spite thereof, suit was filed by plaintiff on 1.8.2008--Plaintiff learnt on 5.12.2006 about sale deed in favour of defendant no.2--No explanation for delay in filing suit for one year and eight months--Thus, plaintiff himself allowed defendant no.2 to carry out changes in suit land--Plaintiff is guilty of delay and laches at every stage--Moreover, instant revision instituted without any application for urgent hearing--None appeared when revision petition listed in motion hearing on 3.9.2009--Case was adjourned on request of counsel on 2.12.2009--Now after more than four and half years after sale deed in favour of defendant no.2 plaintiff cannot undo the same at this stage--Even, balance of convenience is also in favour of defendant no.2 because he has spent huge amount in carrying construction activities and in obtaining necessary sanctions from Government by paying huge amount of fee--Defendant no.2 would suffer irreparable loss and injury of temporary injunction asked for is granted--Temporary injunction rightly declined by Court below. (P.8)

2010(1) LAW HERALD (P&H) 366
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Kanwaljit Singh Ahluwalia
Criminal Appeal No.781-SB of 1997
Muna Mansuri
v.
State of Haryana
{Decided on 15/01/2010}
For the Appellant: Mr. Ajay Singla, Advocate for Mr. Kanwaljit Singh, Sr. Advocate.
For the State: Mr. Deepak Jindal, Deputy Advocate General, Haryana.
Indian Penal Code, 1860, S.363, 366, 376--Kidnapping--Rape--Conviction--Age of prosecutrix--A case where younger sister eloped with husband of her elder sister and consenting party to sexual intercourse--Prosecutrix accompanied accused to Bihar and Nepal and stayed there for 2½ months--There were several opportunities for her to tell many persons who came in her contact that she was abducted and forcibly raped--But prosecutrix did not tell any thing about occurrence to anybody--She also admitted that she had signed documents regarding her marriage--No school leaving certificate or birth certificate produced--On basis of ossification test, age of prosecutrix determined to be more than 16 years and less than 18 years--No offence of rape proved against accused--He is acquitted of charge under Section 376--However since prosecutrix was less than 18 years of age, offence under Sections 363 and 366 proved--Taking into consideration that accused has suffered agony and pain of protracted trial sentence awarded under Section 363 IPC reduced three years to two years RI and sentence awarded under Section 366 reduced from four years RI to three years RI. (P.19, 20 & 21)
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18 - 2010(1) LAW HERALD (P&H) 370
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Kanwaljit Singh Ahluwalia
Criminal Appeal No. 737-SB of 1997
Zile Ram & Ors.
v.
State of Haryana
{Decided on 14/01/2010}
For the Appellants: Mr. R.S. Rai, Senior Advocate with Mr. Karan Pathak, Advocate.
For the Respondent: Mr. Deepak Jindal, Deputy Advocate General, Haryana.
Indian Penal Code, 1860, S.148, 149, 323 & 302, 304 Part-I--Murder--Culpable homicide--Conviction--Reduction of sentence--Protracted trial--Appellant acquitted for offence under S.302--He was convicted and sentenced under Section 304 Part -I for 7 year--Appellant not opted to assail conviction--Occurrence pertaining to January 1993--A period 17 years going to elapse--Right of speedy trial vests in appellant--Protracted trial in itself has been acknowledged by Courts as mitigating circumstance--Accused and complainant party closely related--No untoward incident taken place between parties in 17 years--Sentence of appellant reduced from 7 years to 5 years. (P. 23 & 34)
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19 - 2010(1) LAW HERALD (P&H) 372
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Mahesh Grover
Civil Revision No. 7784 of 2009 (O&M)
Ram Singh & Ors.
v.
Jaswant Kaur & Anr.
{Decided on 15/01/2010}
For the Petitioner: Mr. Sourabh Goel, Advocate.
For the Respondent: Mr. D.D. Sharma, Advocate.
(A) Civil Procedure Code, 1908, S.115, O.17, R.3--Limitation Act, S.5--Delay in filing appeal--Delay of sixteen months--Suit filed for joint possession and declaration dismissed by trial Court under O.17 R.3 as they failed to lead evidence--Denial, ignorance and illness pleaded not borne out from any evidence on record--Once special power of attorney holder of respondents was present in the Court and got his statement recorded that he had no objection to the passing of any order by trial Court, then, question of the respondents being ignorant about the proceedings does not hold any conviction--Benefit of condonation of delay wrongly allowed by first appellate Court--Impugned order condoning delay in filling appeal set aside. (P.10 & 11)
(B) Limitation Act, S.5--Delay in filing appeal--Condonation of delay--Law of limitation has been liberally construed so as to benefit a litigant to ensure that the matter is not thrown out at the threshold, but, at the same time, the Court cannot be oblivious to the bona fides of a person, who invokes the provisions of section 5 of the Act to persuade it to condone the delay--Court is required to examine as to whether such delay is bona fide and unintentional or not, but if a person has merely slept over his rights and then take up a plea of ignorance, then, there is no justifiable reason to condone the delay and more-so when the delay is exemplary. (P.6)
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20 - 2010(1) LAW HERALD (P&H) 374
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice S.S. Saron
Crl. Misc. No. M-1751 of 2010
Kanhaiya Lal
v.
State of Haryana & Ors.
{Decided on 20/01/2010}
For the Petitioner: Mr. N.L. Sammi, Advocate.
IMPORTANT POINT
Inherent jurisdiction--In case petitioner claim himself to be in possession of land and there is threat of his being dispossessed proper remedy is to file suit for permanent injunction--High Court in exercise of its inherent jurisdiction under Section 482 not to embark upon an inquiry to determine as to who is in possession of land--As far as registration of FIR in terms of application is concerned the proper remedies in such a case which are to be adopted are set out in Section 156(3) Cr.P.C. or S.190 r/w 120 Cr.P.C.
(A) Criminal Procedure Code, 1973, S.482--Inherent jurisdiction--In case petitioner claim himself to be in possession of land and there is threat of his being dispossessed proper remedy is to file suit for permanent injunction--High Court in exercise of its inherent jurisdiction under Section 482 not to embark upon an inquiry to determine as to who is in possession of land--As far as registration of FIR in terms of application is concerned the proper remedies in such a case which are to be adopted are set out in Section 156(3) Cr.P.C. or S.190 r/w 120 Cr.P.C. (P.3)
(B) Criminal Procedure Code, 1973, S.482, Inherent jurisdiction--Registration of FIR--Producer--A petitioner under S.482 for directing registration of FIR is to be done only in rare and some exceptional case.
(C) Criminal Procedure Code, 1973, S.154--Criminal Procedure Code, 1973, S.190--FIR--Non registration--Procedure--If a person is aggrieved by the inaction of Police officials in not registering a FIR, the modalities contained in Section 190 read with Section 200 Cr.P.C. are to be adopted and followed. (P.4)
(D) Criminal Procedure Code,1973, S.154--Criminal Procedure Code, 1973, S.482--Registration of FIR--Procedure to be followed when police is not registering FIR--If a person has a grievance that the Police Station is not registering his FIR under Section 154 CrPC, then he can approach the Superintendent of Police under Section 154(3) CrPC by an application in writing--Even if that does not lead to any satisfactory result in the sense that either the FIR is not registered or even after registering it no proper investigation is held, it is open to the aggrieved person to file such application under Section 156(3) CrPC before the learned Magistrate concerned--If such an application under Section 156(3) CrPC is filed before the Magistrate, the Magistrate can direct the FIR to be registered and can also direct proper investigation to be made in a case where, according to the aggrieved person, no proper investigation was made--However, a petition under Section 482 CrPC for directing the registration of a FIR is to be done only in some rare and some exceptional cases. (P.5)
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Jasvir Singh & Anr. v. State of Punjab & Anr.
21 - 2010(1) LAW HERALD (P&H) 376
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mrs. Justice Sabina
Crl.Misc.No.M-36603 of 2009 (O&M)
Jasvir Singh & Anr.
v.
State of Punjab & Anr.
{Decided on 15/01/2010}
For the Petitioner: Mr. Sandeep Arora, Advocate.
For the Petitioner: Mr. J.S. Sandhu, AAG, Punjab.
For the Respondent No.2: Mr.Vikas Bahl, Advocate,.
Criminal Procedure Code, 1973, S.482--Indian Penal Code, 1860, S.341, 323, 324, 506 r/w S.34--Quashing of FIR--Compromise--Parties arrived at compromise and have decided to live in peace--No useful purpose could be served in allowing these proceedings to continue--FIR quashed--Case of Kulwinder Singh’s and Nikhil Merchant case relied. (P.4, 5 & 6)
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Smt. Sonia v. Om Parkash
22 - 2010(1) LAW HERALD (P&H) 377
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice L.N. Mittal
Civil Revision No. 5775 of 2008
Smt. Sonia
v.
Om Parkash
{Decided on 20/01/2010}
For the Petitioner: Mr. GP Singh, Advocate.
For the Respondent: Mr. JS Saneta, Advocate.
IMPORTANT POINT
Maintenance pendente lite--Wife cannot be granted maintenance pendente-lite when she had already awarded maintenance under Section 125 Cr.P.C.
Hindu Marriage Act, 1955, S.24--Criminal Procedure Code, 1973, S.125--Maintenance pendente lite--Litigation expenses--Wife cannot be granted maintenance pendente-lite when she had already awarded maintenance under Section 125 Cr.P.C.--She cannot get double maintenance for same period--No interference in granting litigation expenses of Rs.5500/- to wife. (P.7)

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23 - 2010(1) LAW HERALD (P&H) 378
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice S.S. Saron
Cr. Misc. Nos.7159-60 & 49980-81 of 2009 and Criminal Misc. No.M-31676 of 2008 (O&M)
Ved Parkash & Ors.
v.
State of Punjab & Ors.
{Decided on 14/01/2010}
For the Petitioner: Mr. Yogesh Goel, Advocate.
For the Respondent-State: Mr. V.P.S. Sidhu, Assistant Advocate General, Punjab.
For the Complainant-respondent No.2: Mr. Ajay Singla, Advocate.
IMPORTANT POINT
Quashing of FIR--Compromise--Merely because accused is stated to be carrying a pistol and had threatened to fire an inference cannot be drawn that he had intention to commit offence of murder which would amount to offence of attempt to murder under Section 307 IPC--Besides, parties having amicably resolved their dispute which is purely personal in nature amongst rice millers it would be just and expedient to quash FIR so that there is peace and goodwill amongst rice millers.
Attempt to murder--What constitute--Substance of offence is intention or knowledge that the act which is done is such that death would be caused and offender would be guilty of murder but death is not actually caused.
(A) Criminal Procedure Code, 1973, S.482--Indian Penal Code, 1860, S.307, 148, 149, 323 & 506--Arms Act, 1959, S.25 & 27--Quashing of FIR--Compromise--Merely because accused is stated to be carrying a pistol and had threatened to fire an inference cannot be drawn that he had intention to commit offence of murder which would amount to offence of attempt to murder under Section 307 IPC--Besides, parties having amicably resolved their dispute which is purely personal in nature amongst rice millers it would be just and expedient to quash FIR so that there is peace and goodwill amongst rice millers. (P.16)
(B) Indian Penal Code, 1860, S.307--Attempt to murder--What constitute--Substance of offence is intention or knowledge that the act which is done is such that death would be caused and offender would be guilty of murder but death is not actually caused. (P.14)
(C) Indian Penal Code, 1860, S.306--Evidence Act, 1872, S.32--Abetment to suicide--Dying declaration--Conviction--Marriage of appellant with deceased was 20 years old--All relations of deceased have not supported case of prosecution--Fact recorded in dying declaration that on day of occurrence appellant trashed her wife cannot be ignored giving beating was immediate cause which led deceased to commit suicide--Accompanying circumstances are such that dying declaration is to be given due credence without seeking any corroboration--Appellant rightly convicted.
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Babu Ram v. Tehsildar Sales, Rehabilitation Department
24 - 2010(1) LAW HERALD (P&H) 383
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice L.N. Mittal
Regular Second Appeal No. 62 of 2007
Babu Ram & Ors.
v.
Tehsildar Sales, Rehabilitation Department & Ors.
{Decided on 15/01/2010}
For the Appellants: Mr. Rajiv Sharma, Advocate, for the appellants
For the Respondent Nos. 2 and 3: Mr. R.S. Rana, Advocate.
For the Respondent No.1: None.
(A) Dholidars--Suit for possession--Plaintiff were recorded to be in possession of as Dholidar in land measuring 1 kanal and 17 marlas--However, possession of said land was delivered to defendant no.2 after he purchased it in open auction made by defendant no.1--Plaintiff have not led sufficient evidence to prove that actual possession of land was not delivered to defendant no.2 vide report--Proclamation regarding deliver of possession of said land was also made by beat of drum and by affixation of notice--Finding by Courts below that possession of said land was actually delivered to defendant no.2 vide report--Plaintiff not entitled to possession of 1 kanal 17 marlas land. (P.8)
(B) Civil Procedure Code, 1908, O.39, R. 1 & 2--Specific Relief Act, 1963--Injunction--Permanent Injunction--Dholidars--Revenue entries--Suit for permanent injunction--Plaintiff including predecessors proved to be in possession of 5 kanal and 2 marlas since 1938-39 on basis of consistent revenue entries till filing of suit--Said land is recorded to be evacuee property in revenue record, therefore, same vested in Custodian--However, plaintiffs being in well established possession of land since long cannot be evicted therefrom except in due course of law--Suit for plaintiff decreed for permanent injunction restraining defendants from interfering in possession of plaintiff over 5 kanal and 2 marlas land. (P.9)

2010(1) LAW HERALD (P&H) 385
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Kanwaljit Singh Ahluwalia
Criminal Appeal No.766-SB of 1997
Ashok Kumar & Ors.
v.
State of Haryana
{Decided on 15/01/2010}
For the Appellant: Mr. Baldev Singh, Senior Advocate with Mr. Sudhir Sharma, Advocate.
For the State: Mr. Deepak Jindal, Deputy Advocate General, Haryana.
IMPORTANT POINT
Abetment to suicide--Suicide committed by wife for reason that her husband was drug addict--Allegations that family of in-laws was not permitting deceased to meet her parent are trivial in nature and are not such which will drive deceased to commit suicide when all witnesses stated that her husband was drug addict--Conviction and sentence of appellant husband maintained.
Indian Penal Code, 1860, S.306--Abetment to suicide--Suicide committed by wife for reason that her husband was drug addict--Suicide note states that deceased was fed up with her life and nobody should be held responsible--Allegations that family of in-laws was not permitting deceased to meet her parent are trivial in nature and are not such which will drive deceased to commit suicide when all witnesses stated that her husband was drug addict--Taking into consideration that mother-in-law and brother-in-law of deceased were residing separately they are acquitted of charge--However, conviction and sentence of appellant husband maintained. (P.12 & 13)
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Sube Singh & Ors. v. State of Haryana
26 - 2010(1) LAW HERALD (P&H) 388
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Kanwaljit Singh Ahluwalia
Criminal Appeal No. 605-SB of 1997
Sube Singh & Ors.
v.
State of Haryana
{Decided on 14/01/2010}
Present: Mr. M.P.S. Mann, Advocate for appellant No.2 Sumer Singh and for the appellant No.3 Roop Chand.
Appellant No.1 Sube Singh (statedly died).
Mr. Deepak Jindal, DAG Haryana.
Indian Penal Code, 1860, S.332, 333, 353--Acquittal--On date of occurrence complainant was returning after landing over report regarding damage caused by floods--He was not discharging any official duty at that time--No evidence that injuries were caused to complainant because any loss was caused to accused because of discharge of duty of complainant in his official capacity--A personal dispute or rivalry cannot be ruled out--Therefore, no evidence under Section 332 IPC made out--Hence, offence, if any, will fall under Section 323 IPC--Section 323 IPC is non-cognizable offence, therefore, police could not have investigated case and filing a private complaint was remedy available to complainant--Prosecution failed to prove identity of accused as no identification parade was held--Appellant who was identified by his voice caused no injury and no overt role is as signed to him--Observation by trial Court that complainant has submitted report against accused not borne from record--Thus appellants acquitted extending benefit of doubt.
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State of Punjab & Anr. v. M/s S. S. Construction Engineers….
27 - 2010(1) LAW HERALD (P&H) 390
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice L. N. Mittal
C.R. No. 5773 of 2009
State of Punjab & Anr.
v.
M/s S. S. Construction Engineers and Contractors, S.A.S. Nagar (Mohali)
{Decided on 18/01/2010}
For the Petitioner: Mr. Vivek Chauhan, AAG, Punjab.
For the Respondent: Mr. Kamal Sehgal, Advocate.
(A) Arbitration Act, 1940, S.30 and 33--Award--Objection--Claim for extra amount pertaining to use of diesel operated pumps by contractor as department did not make available electric connection--Clause in agreement that contractor cannot make any claim on ground of delay in supply of power or subsequent intermitted electricity supply for which contractor may provided standby arrangement at his own cost--Thus, for not making available electric connection by department, contractor could not claim any additional amount as he had to make his own stand by arrangement at his own cost--Award of arbitrator awarding said extra amount liable to be set aside. (P.7 & 8)
(B) Arbitration Act, 1940, S.30 and 33--Award--Objections--Petitioners issued notice dated 16.1.1986 to contractor to proceed with work but land was made available to contractor on 26.3.1986--Merely because documentary evidence to depict that machinery and work force remained idle was alleged not led by contractor--Award of arbitrator not vitiated--Moreover, arbitrator has not awarded amount under his claim for machinery and workforce remaining idle but awarded half amount of anticipated profit. (P.9)
(C) Arbitration Act, 1940, S.30 and 33--Award--Objections--Award of amount for extra work done by contractor on account of charge in design made by department--Is based on finding of fact regarding additional work done by contractor as arrived by Arbitrator--Arbitrator’s award not vitiated by any misconduct or in contravention of any clause of agreement--Said finding cannot be challenged on by filing objections under Section 30 and 33 of the Act. (P.10)
(D) Arbitration Act, 1940, S.30 and 33--Award--Objections--Arbitrator awarded amount @ Rs.70/- per cubic meter for removal of slush as against the agreed rate of Rs.23/- per cubic meter for ordinary earth work excavation--In absence of any expert evidence, thumb rule may be applied and contractor awarded rate of Rs.45/- per cubic meter for removal of slush--The amount would thus come to Rs.2,10,615/- instead of Rs.4,49,950/- awarded. (P.11)
(E) Arbitration Act, 1940, S.30 and 33--Award--Objections--Award of Rs.39,572/- for weep holes provided by Contractor--Contention that no amount for same could be awarded because weep holes are included in drawing issued for lining work--Is tenable--Award of Rs.39,572/- for weep holes provided by contractor set aside. (P.12)
(F) Arbitration Act, 1940, S.30 and 33--Award--Objection--Interest--Clause in agreement that contractor would pay interest rate of 15% p.a. on amount advanced by petitioners to Contractor for mobilization and machinery--Interest awarded by arbitrator at same rate not excessive. (P.14)
(G) Arbitration Act, 1940--Interest--Future interest--Compound interest--Challenge to award of interest by arbitrator that future interest from date of award till recovery is awarded even on amount of interest accrued for pre-reference period and for reference period could not have been allowed--Arbitrator could not have allowed compound interest--Contractor would be entitled to future interest only on principal amount of award and not on interest amount which accrued to date of award.

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Harvinder Singh & Ors. v. Avtar Singh & Ors.
28 - 2010(1) LAW HERALD (P&H) 393
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice L. N. Mittal
C.R. No. 4776 of 2009
Harvinder Singh & Ors.
v.
Avtar Singh & Ors.
{Decided on 19/01/2010}
For the Petitioner: Mr. S. S. Salar, Advocate.
For the Respondent no.1: Mr. Deepak Aggarwal, Advocate.
Civil Procedure Code, 1908, S.37--Summary suit--Leave to defend--Suit for recovery--Condition of furnishing security could not be imposed for granting leave to defend the suit, even then plaintiff could seek attachment of defendants’ property before judgment under Order 38 Rule 5 Civil Procedure Code, 1908--Conditions for same satisfied because defendant-petitioners have already disposed of part of their property during pendency of the instant revision petition and petitioners are also not ready to furnish security as directed by trial court--Impugned order modified directing attachment before judgment, of immovable property of petitioners. (P.6 & 7)
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Madan Lal v. Hari Singh & Ors.
29 - 2010(1) LAW HERALD (P&H) 394
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice L. N. Mittal
C.R. No. 4571 of 2006
Madan Lal
v.
Hari Singh & Ors.
{Decided on 15/01/2010}
For the Petitioner: Mr. Saurabh Bajaj, Advocate.
For the Respondent: Mr. Arun Jain, Senior Advocate with Mr. Chetan Salathia, Advocate.
Civil Procedure Code, 1908, O.39, R. 1 & 22--Temporary injunction--Sale in favour of predecessors of defendants no.1 to 7 was challenged and held to be not binding on reversioners of vendor, who is father of plaintiff--Grievance of plaintiff it defendants no.1 to 7 alienate suit land, alienees would raise plea of being bona fide purchasers--Defendants no.1 to 7 directed that while alienating suit land during pendency of suit they shall recite in deed of alienation about judgments and decree holding that sale in favour of vendees would not be binding on reversionary rights of plaintiff or collaterals of vendor--So that alienees may not recite plea of being bonafide purchaser without notice of said judgment and decree. (P.7 & 8)
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Jiwan Kumar& Ors. v. State of Punjab & Anr.
30 - 2010(1) LAW HERALD (P&H) 396
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mrs. Justice Sabina
Crl.Misc.No.M-21043 of 2009 (O&M)
Jiwan Kumar& Ors.
v.
State of Punjab & Anr.
{Decided on 15/01/2010}
For the Petitioner: Mr.Vikas Bahl, Advocate.
For the Respondent: Mr.J.S.Sandhu, AAG, Punjab.
For the Respondent No.2: Mr.Sandeep Arora, Advocate,
Criminal Procedure Code, 1973, S.482--Indian Penal Code, 1860, S.307, 323, 324 r/w S.34--Quashing of FIR--Attempt to murder--Compromise parties have arrived at compromise and have decided to live in peace, no useful purpose would be served in allowing these proceedings to continue--FIR quashed--Kulwinder Singh’s case and Nikhil’s case relied. (P.4, 5 & 6)
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Vijay Kumar v. Krishan Kumar
31 - 2010(1) LAW HERALD (P&H) 397
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice S. D. Anand
Civil Revision No. 217 of 2010
Vijay Kumar
v.
Krishan Kumar
{Decided on 15/01/2010}
For the Petitioner: Mr. Pawan Kumar, Senior Advocate with Mr. Hoshiar Singh, Advocate.
Civil Procedure Code, 1908, O.9, R.7 & 13--East Punjab Urban Rent Restriction Act, 1949, S.13--Exparte ejectment order--Delay--Illness--Tenant failed to substantively prove his hospitalisation at Hospital--Concerned doctor not examined--None even from, hospital office examined--He did not indicate date on which eviction order came to his notice--As per his averment impugned exparte ejectment order came to his notice when he entered appearance in execution proceedings--He does not indicate when service of execution application was effected upon him--Tenant totally failed to explain belated plea for setting aside exparte order--No infirmity in impugned order. (P.8, 9 & 10)
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Sabir & Anr. v. State of Haryana & Anr.
32 - 2010(1) LAW HERALD (P&H) 399
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice S.S. Saron
Criminal Misc. No.M-33921 of 2009
Sabir & Anr.
v.
State of Haryana & Anr.
{Decided on 15/01/2010}
For the Petitioners: Mr. Gautam Dutt, Advocate.
For the respondent-State: Mr. Pawan Singh, Assistant Advocate General, Haryana.
For the Complainant-respondent No.2: Ms. Sharmila Sharma, Advocate.
IMPORTANT POINT
Pre-arrest bail--Dowry Death--Complaint case filed by father of deceased--Earlier FIR was registered and petitioners were found innocent and cancellation report was filed--Deceased not named petitioners--It would be just and expedient that petitioners in event of their arrest in complaint case are admitted to bail.
Criminal Procedure Code, 1973, S.482--Indian Penal Code, 1860, S.304-B r/w 34--Evidence Act, 1872, S.32--Pre-arrest bail/Interim bail--Dowry Death--Deceased died with 100% burns--Complaint case filed by father of deceased--Earlier FIR was registered and petitioners were found innocent and cancellation report was filed--In terms of dying declaration recorded by executive magistrate deceased not named petitioners--Custody of petitioners not required for investigation--Held, In view of facts and circumstances and facts that deceased does not implicate petitioners as responsible for her death it would be just and expedient that petitioners in event of their arrest in complaint case are admitted to bail to satisfaction of JMIC where complaint is pending for summoning. (P.4, 5, 6 & 7)
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