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Sunday, September 25, 2016

Happy Birth Day Smt. Shruthi Nithin.

Wish you …..........

a Very Very Very Happy Birth Day Smt. Shruthi Nithin.

My dear little Girl

This is the first Birth Day in your in laws' home.

My dear little Girl

Now you are Smt. Shruthi Nithin Havanur

Let your life with your hubby -Nithin be cherish with

all Boons and Blessings from Lords, Elders & Friends.

With great love & affection
Yours Amma, Brother & Appa .



Tuesday, September 13, 2016

Section 152 read with Section 151 of the Code of Civil Procedure,Amendment of plaint schedule and Decree Schedule = The Court below failed to appreciate the legal position in the decisions of the Supreme Court in Babulal v. M/s.Hazari Lal Kishori Lal [1] ; Niyamat Ali Molla v. Sonargon Housing Coop Society Ltd., [2] ; Bela Devi v. Bon Behary Roy [3] and had erroneously dismissed the application of the DHr filed for amendment of the schedule. The Court below ought to have seen that it has got ample power to not only rectify the mistakes that have crept into the decree on account of the Court’s own accidental slip or omission but also to rectify any mistake made by the partiesm for instance a mistake in the description of properties in the deeds. The court below ought to have seen that during the entire proceedings, the identity of the property was not disputed, though the defendant/s had contested the suit on various other grounds. In the execution proceedings, when the draft sale deed was furnished, the office of the Court below had raised an objection in regard to non mentioning of the total extent of the property in the decree schedule, and, therefore, the necessity for seeking the amendment has arisen. The learned Judge erred in observing that the DHr is introducing details of door numbers of third party premiseses as boundaries of the suit schedule property on Eastern and Western sides and also measurements of his choice in the description of the suit schedule property. The court below ought to have seen that by the proposed amendment, the material particulars in regard to the description of the property are not being changed in any manner and that the identity of the property remains the same despite allowing the amendment. The court below ought to have seen that the total extent of the property, which is now being sought to be included by way of amendment is already mentioned in the suit agreement for sale, which is the basis for the suit. In the boundaries mentioned in the original schedule, the names of the occupants of the adjacent properties were mentioned, but, now, the house numbers of the adjoining properties are being shown in the boundaries of the suit schedule property by way of amendment; such, addition of the door numbers of adjacent properties in the boundaries on the East and West would in no manner modify the extent of the property. The Court below ought to have seen that by way of the proposed amendment of the schedule, the DHr is not trying to enlarge the extent of the suit schedule property. The court below ought to have seen that it is having ample power and jurisdiction to grant the relief.’= High Court held that 1. Pratibha Singh v. Shanti Devi Prasad [4] 2. Order dated 06.01.2014 of the Delhi High Court in CM(M).no.1299/2013 and CM.no.19310 of 2013 between Sh. Ashok Kumar Ahuja v. Sh. Gulab Rai Khanchandani 3. Kalkonda Pandu Rangaiah v. Kalkonda Krishnaiah [5] I have gone through the decisions cited. In view of the precedential guidance, the maintainability of the petition filed for amendment of the schedule of the plaint as well as the decree is not in doubt.= whether in the facts and circumstances of the case the amendment as sought for in respect of the schedule of the plaint and the decree shall be permitted or not. In the well considered view of this Court, while considering the said question the Court below has to incidentally consider, apart from other contentions of the parties, the question as to whether the amendment if permitted brings about any drastic or major changes in the description and the identity of the property involved in the lis. - Therefore, the DHr has to in the first place, establish that there will either be no material change, much less a major change, or a change in the identity of the schedule of property despite allowing the amendment of the schedule as prayed for. Now that this Court had held that the application is maintainable, in the well considered view of this Court, the CRP can be disposed of with appropriate directions. = the order impugned is liable to be set aside and that the execution application (EASR) has to be remitted to the Court below for disposal afresh, in strict accordance with the procedure established by law, after directing notices to the respondents and giving them an opportunity to file their counters, if any, and contest the matter. It is made clear that before considering the merits of the said application, the Court below shall register the EASR and give the plaintiff an opportunity to produce any acceptable and relevant evidence, if necessary, by seeking appointment of an advocate commissioner for identification of the property in question, to substantiate the request for amendment of the schedule.

CRP 2294 / 2015
CRPSR 10844 / 2015CASE IS:DISPOSED
PETITIONERRESPONDENT
M/S.DECCAN ENTERPRISES PRIVATE LIMITED  VSDHARAM SINGH [DIED] & 4 ORS
PET.ADV. : KRISHNA DEVRESP.ADV. : HARENDER PRASAD
SUBJECT: ARTICLE 227DISTRICT:  HYDERABAD

THE HON’BLE SRI JUSTICE M.SEETHARAMA MURTI
Civil Revision Petition No.2294 of 2015
ORDER: This Civil Revision Petition under Article 227 of the Constitution of India by the petitioner/plaintiff is directed against the orders dated 20.01.2015 of the learned I Additional Chief Judge, City Civil Court, Secunderabad passed in EASR.no.14412 of 2014 in EP.no.11 of 2014 in OS.no.26 of 1983 filed under Section 152 read with Section 151 of the Code of Civil Procedure, 1908.
2. I have heard the submissions of the learned counsel for the revision petitioner/DHr and the learned counsel for the 3 rd respondent. There is no appearance for the other respondents.
3. The facts necessary to be stated as a prelude to this order, in brief, are as follows: The DHr brought the suit OS.no.26 of 1983 (Old OS.no.638 of 1980) against the sole defendant (since died) for specific performance of an agreement dated 05.08.1975 in respect of a property which is described in the schedule annexed to the plaint. The sole defendant filed a written statement resisting the suit. The said suit was decreed on 06.06.1988 after full fledged trial. The sole defendant had preferred an appeal in CCCA.no.128 of 1998 against the decree and judgment of the trial Court. The said appeal, vide judgment dated 21.11.2002, was dismissed for default. After the decree of the trial Court has attained finality, the DHr filed EP no. 11 of 2014. The JDrs.2 to 5, who are the legal representatives of the deceased sole defendant, having entered appearance through their advocate had remained ex parte. The Court of execution by order dated 13.10.2014 directed the DHr to file the draft sale deed and also deposit the required amount for purchase of non judicial stamp papers for engrossing, execution and registration of the sale deed in terms of the decree. On the same day, the said JDrs 2 to 5 had filed EA.no.94 of 2014 requesting to set aside the ex parte order and permit them to file a counter in the execution proceedings. The said EA was allowed on 12.11.2014. A draft sale deed was filed by the DHr in compliance of the orders dated 13.10.2014 of the Court below. The Office of the Court raised an objection in respect of the total extent of property which was not mentioned in the decree. Therefore, after noticing for the first time the inadvertent error, the DHr was advised to take appropriate steps for amendment of the plaint as well as the decree. Accordingly, the DHr had filed the aforementioned EA seeking permission for amendment of the schedule of the plaint and consequently the schedule of the decree as stated in the affidavit and the petition. That application was not registered as the Court of execution wanted to hear on the aspect of maintainability of the petition for amendment, which was filed at the stage of execution. After hearing the learned counsel for the DHr, the Court below had dismissed the EASR by the orders impugned. Therefore, the DHr has filed this present CRP.
4. The case of the DHr in support of the request for amendment, in brief, is as follows: In the plaint, the suit schedule property was described as under: ‘All that premises bearing Municipal old no.8570-A New No.5-2-175/1, situate at Rastrapati Road, consisting of celler ground floor and first floor bounded on North by: Sri Satyanarayana Temple property; South by: Rastrapati Road; East by: premises held by Andhra Bank; West by: Premises held by Autofin Ltd.;’ After the decree was passed, in the decree schedule, the property was described as mentioned in the schedule of the plaint. In fact, during the pendency of the suit, the sole defendant having filed a written statement had appeared as a witness in the suit. He had also preferred a civil appeal before this Court against the decree and judgment of the trial Court. On his death during the pendency of the first appeal, the respondents 2 to 5 were brought on record, they being his legal representatives. The said first appeal was dismissed by this Court on 21.11.2002. Subsequently, the EP was filed. In that execution petition, directions to file the draft sale deed and deposit the necessary amount towards non judicial stamp papers for engrossing, executing and registering the sale deed were given. Thus, during the entire proceedings, there was never any dispute as to the identity of the suit property. After filing of the draft sale deed and on the objection taken by the office of the Court of execution, the mistake which had inadvertently occurred has come to be noticed by the plaintiff/DHr. During the drafting of the plaint by inadvertence, the total area of the suit property and the municipal house numbers of the properties to the East and West of the premises have not been mentioned in the schedule of the plaint. The said error, which is an accidental error, if permitted to be corrected no prejudice would be caused to the respondents. By not permitting the amendment, the DHr cannot be deprived of the fruits of the decree obtained in a very old suit, which has become final and binding. If the amendment is not permitted the DHr would be put to serious and irreparable loss. Hence, after deleting the aforementioned schedule in the plaint and the decree, the following schedule is to be incorporated by way of amendment of the schedules of the plaint and the decree: ‘All that premises bearing Municipal Old No.8570-A, No.5-2-175/1, admeasuring 257.86 Sq.yards or 215.68 Sq.Mtrs or 2320.75 Sq.ffet, consisting of Cellar, Ground and First floor situated at Rasthrapathi Road, Secunderabad, Telangana State bounded by North: Sri Satyanarayana Temple property; Sout: Rastrapathi Road; East: H.No.5-2-174/2/7; West: H.No.5-2-175/2.’ 
5. The learned counsel for the DHr while narrating the facts, the case pleaded by the DHr in support of the request for amendment that is being sought for and the sequence of events, which are already stated supra, had further contended as follows: ‘The court of execution ought to have permitted the amendment of the schedules of the plaint and the decree as the error had occasioned purely on account of inadvertence and accident. The Court below failed to appreciate the legal position in the decisions of the Supreme Court in Babulal v. M/s.Hazari Lal Kishori Lal [1] ; Niyamat Ali Molla v. Sonargon Housing Coop Society Ltd., [2] ; Bela Devi v. Bon Behary Roy [3] and had erroneously dismissed the application of the DHr filed for amendment of the schedule. The Court below ought to have seen that it has got ample power to not only rectify the mistakes that have crept into the decree on account of the Court’s own accidental slip or omission but also to rectify any mistake made by the partiesm for instance a mistake in the description of properties in the deeds. The court below ought to have seen that during the entire proceedings, the identity of the property was not disputed, though the defendant/s had contested the suit on various other grounds. In the execution proceedings, when the draft sale deed was furnished, the office of the Court below had raised an objection in regard to non mentioning of the total extent of the property in the decree schedule, and, therefore, the necessity for seeking the amendment has arisen. The learned Judge erred in observing that the DHr is introducing details of door numbers of third party premiseses as boundaries of the suit schedule property on Eastern and Western sides and also measurements of his choice in the description of the suit schedule property. The court below ought to have seen that by the proposed amendment, the material particulars in regard to the description of the property are not being changed in any manner and that the identity of the property remains the same despite allowing the amendment. The court below ought to have seen that the total extent of the property, which is now being sought to be included by way of amendment is already mentioned in the suit agreement for sale, which is the basis for the suit. In the boundaries mentioned in the original schedule, the names of the occupants of the adjacent properties were mentioned, but, now, the house numbers of the adjoining properties are being shown in the boundaries of the suit schedule property by way of amendment; such, addition of the door numbers of adjacent properties in the boundaries on the East and West would in no manner modify the extent of the property. The Court below ought to have seen that by way of the proposed amendment of the schedule, the DHr is not trying to enlarge the extent of the suit schedule property. The court below ought to have seen that it is having ample power and jurisdiction to grant the relief.’
6. At the hearing, the learned counsel for the 3 rd respondent would submit that the order impugned admittedly was passed without notices to any of the JDrs and without an opportunity to them to file counters and submit their defence and that, therefore, the order is unsustainable. He would alternatively submit that in case this Court comes to the conclusion that the EASR is maintainable, a direction may be given to the trial Court to number the same and dispose of the same afresh after giving an opportunity of hearing to the respondents 2 to 5.
7. I have bestowed my attention to the facts and the submissions. As already noted, the execution application, which is filed for amendment of the schedule of the plaint as well as the decree as stated above, was not registered and the Court below after hearing the learned counsel for the DHr on the question of maintainability of the said petition had eventually passed orders of dismissal, on merits. The said orders are impugned in this revision. When the execution application was not registered and was heard on the question of maintainability, the Court below ought to have considered that limited question and ought to have either rejected the petition at the stage of admission or ought to have directed the office to register the application. In the later case, the Court is required to hear and dispose of the application of the DHr on merits, after directing issuance of notices to the JDrs/Respondents 2 to 5. However, even without giving notice to the JDrs, the EA filed by the DHr was dismissed. Be that as it may. A perusal of the original schedule mentioned in the plaint and the decree on one hand and the schedule being sought to be introduced by way of proposed amendment on the other, lays bare the changes that the DHr is intending to bring about in the schedule by way of amendment. Therefore, there is no need to dilate on the changes being sought to be introduced in the schedule of the decree.
8. Be that as it may, the learned counsel for the DHr placed reliance on the decisions referred to supra and also on the following decisions, in support of the submission that the application is maintainable. 1. Pratibha Singh v. Shanti Devi Prasad [4] 2. Order dated 06.01.2014 of the Delhi High Court in CM(M).no.1299/2013 and CM.no.19310 of 2013 between Sh. Ashok Kumar Ahuja v. Sh. Gulab Rai Khanchandani 3. Kalkonda Pandu Rangaiah v. Kalkonda Krishnaiah [5] I have gone through the decisions cited. In view of the precedential guidance, the maintainability of the petition filed for amendment of the schedule of the plaint as well as the decree is not in doubt. Therefore, the main question to be considered by the Court below is as to whether in the facts and circumstances of the case the amendment as sought for in respect of the schedule of the plaint and the decree shall be permitted or not. In the well considered view of this Court, while considering the said question the Court below has to incidentally consider, apart from other contentions of the parties, the question as to whether the amendment if permitted brings about any drastic or major changes in the description and the identity of the property involved in the lis. Therefore, the DHr has to in the first place, establish that there will either be no material change, much less a major change, or a change in the identity of the schedule of property despite allowing the amendment of the schedule as prayed for. Now that this Court had held that the application is maintainable, in the well considered view of this Court, the CRP can be disposed of with appropriate directions. 
9.. Having regard to the facts and the discussions supra, this Court is of the considered view that the order impugned is liable to be set aside and that the execution application (EASR) has to be remitted to the Court below for disposal afresh, in strict accordance with the procedure established by law, after directing notices to the respondents and giving them an opportunity to file their counters, if any, and contest the matter. It is made clear that before considering the merits of the said application, the Court below shall register the EASR and give the plaintiff an opportunity to produce any acceptable and relevant evidence, if necessary, by seeking appointment of an advocate commissioner for identification of the property in question, to substantiate the request for amendment of the schedule. 
10. In the result, the Civil Revision Petition is allowed and the order impugned is set aside and the EASR.no.14412 of 2014 in EP.no.11 of 2014 is remitted to the Court below for disposal afresh in strict accordance with the procedure established by law as directed hereinabove. There shall be no order as to costs. Miscellaneous petitions pending, if any, in this CRP shall stand closed. _____________________ M.SEETHARAMA MURTI, J 18 th April, 2016 Vjl [1] (1982) 1 SCC 525 [2] (2007) 13 SCC 421 [3] AIR 1952 Cal 86 [4] (2003) 2 SCC 330 [5] AIR 1974 AP 201

rejecting the applications filed by petitioner seeking passing of a decree against respondent under Order XII Rule 6 C.P.C = A reading of Order XII Rule 6 C.P.C. indicates that it is permissible for a Court to grant a decree in favour of plaintiff if there are admissions of fact made either in the pleading or otherwise, whether orally or in writing, without waiting for the determination of any other question between the parties. Thus, this provision enables the Court to pass a decree without insisting on trial if the defendant admits the claim of plaintiff in its entirety or in part. =By separate orders dt.27-07-2015, the Court below dismissed all the applications. The Court below referred to the defense of respondent in the written statements that the works contracts awarded to petitioner by the then Director of the respondent at exorbitantly high tender premia is contrary to the C.P.W.D. norms, that they are unconscionable, and that the petitioner had procured the said contract through the said Director through inducement for wrongful gain to itself, and so they do not bind the respondent. It held that merely because certain amounts were released to petitioner by respondent, there is no admission of liability to pay to petitioner the balance amounts claimed by it in the respective suits. It held that the nature of the contentions raised by respondent indicates that there is no unequivocal admission as to liability to pay the balance amount. It observed that a combined reading of the written statement and reply to interrogatories does not disclose any unconditional admission on the part of respondent of the suit claim, that when the original contracts and entrustment of additional works are in question, and there is an enquiry initiated against the then Director of respondent by a retired High Court Judge, all the issues involved in the suits require to be determined after full trial= HIGH COURT HELD THAT Although learned counsel for petitioner sought to contend that there is no specific denial of the allegations made in the plaint by respondent in the written statement and it amounts to admission of liability by respondent under Order VIII Rule 5 C.P.C., I am unable to agree with the said submission. I am of the considered opinion that in the present case, taking into account the pleadings of the written statement in its entirety, by necessary implication, the allegations in the plaint in so far as the liability of respondent are concerned, are clearly denied.


CRP 4726 / 2015
CRPSR 25106 / 2015CASE IS:DISPOSED
PETITIONERRESPONDENT
NCC LTD., HYDERABAD  VSNATIONAL INS OF TECHNOLOGY, WARANGAL
PET.ADV. : SARADARESP.ADV. : 
SUBJECT: ARTICLE 227DISTRICT:  WARANGAL


THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO
CIVIL REVISION PETITION Nos.4652, 4707, 4708 and 4726 of 2015
COMMON ORDER: In all these Revisions, orders passed by the VIII Additional District and Sessions Judge, Warangal rejecting the applications filed by petitioner seeking passing of a decree against respondent under Order XII Rule 6 C.P.C. are questioned.
2. The petitioner had filed suits O.S.Nos.217 of 2012, 190 of 2012, 216 of 2012 and 218 of 2012 on the file of the VIII Additional District and Sessions Judge at Warangal for recovery of amounts against the respondent.
3. According to petitioner, it had been engaged in the business of civil construction and infrastructure development, that respondent had floated tenders for construction of certain structures in its campus at N.I.T. Warangal, that it was the successful bidder and it was awarded the work of construction under several agreements and it completed the said work but payments were not made by respondent.
4. Written statement was filed in all these suits by respondent stating that the works contracts were awarded to petitioner by the then Director of the respondent by inducement for wrongful gain , that they were unconscionable and do not bind the respondent. It was contended that exorbitantly high tender premia was granted by the said Director of respondent contrary to C.P.W.D. norms, that the contracts do not bind the respondent, and an enquiry was initiated against the said Director by a retired Judge of the High Court. It was contended that the contracts allegedly entered into by petitioner with respondent were unconscionable, void or voidable, that it is avoiding the same and no decree can be passed on the basis of a void contract. It was alleged that the then Director had exceeded the authority in allotting additional works to petitioner, that there is no written contract governing the terms for the additional works said to have been entrusted by him and not only the original contract but also entrustment of additional work does not bind the respondent. In addition to the above contentions, it was also contended that the rate of interest claimed by petitioner was fanciful, exorbitant and oppressive and same the same is also disputed.
5. The petitioner filed applications under Order XII Rule 6 C.P.C. in all these suits contending that certain interrogatories have been served on the respondent’s officials, and the pleadings in the written statement as well as answers given by petitioner to the interrogatories, in no uncertain terms prove the said claim. It was also alleged that the respondent had not taken a specific pleading either denying or disputing the said claim or pointed out any defaults in executing the works by petitioner in concluding the contract. It was pointed out that although respondent had raised a plea of the contracts being void, the respondent is not entitled to do so and is estopped from raising such a plea. It was stated that in the interrogatories the respondent had admitted that certain payments had been made to petitioner and this also amounts to an unequivocal admission with regard to its liability to pay the suit amounts. It was further contended that the only issue that remains in the suits is regarding interest with regard to disputed amounts and the same can be adjudicated in the trial.
 6. Counter affidavits were filed by respondent to these applications denying all the contentions raised therein and it is pointed out that in the written statement there is no unequivocal admission of liability to pay any amount to petitioner. It was contended that merely because in the written statements it was stated that part payment of bills submitted by petitioner was made, it does not amount to any unequivocal admission; and that in the light of the defense taken in the written statement that the then Director of respondent had exceeded his power in awarding contracts to the petitioner at grossly inflated tender premium, the said contracts do not bind respondent, no relief can be granted to petitioner.
7. By separate orders dt.27-07-2015, the Court below dismissed all the applications. The Court below referred to the defense of respondent in the written statements that the works contracts awarded to petitioner by the then Director of the respondent at exorbitantly high tender premia is contrary to the C.P.W.D. norms, that they are unconscionable, and that the petitioner had procured the said contract through the said Director through inducement for wrongful gain to itself, and so they do not bind the respondent. It held that merely because certain amounts were released to petitioner by respondent, there is no admission of liability to pay to petitioner the balance amounts claimed by it in the respective suits. It held that the nature of the contentions raised by respondent indicates that there is no unequivocal admission as to liability to pay the balance amount. It observed that a combined reading of the written statement and reply to interrogatories does not disclose any unconditional admission on the part of respondent of the suit claim, that when the original contracts and entrustment of additional works are in question, and there is an enquiry initiated against the then Director of respondent by a retired High Court Judge, all the issues involved in the suits require to be determined after full trial.
8. Challenging the same these Revisions are filed.
9. Sri K.G.Krishna Murthy, learned counsel for petitioner, contended that respondent had entrusted the works to petitioner under agreements, that it had also got done certain works, and after getting the works executed by petitioner, respondent cannot take the plea that the contracts entered into by petitioner with respondent by the then Director are unconscionable and he had exceeded his powers in entering into such contracts. He also contended that there is no specific denial in the written statement of the liability to the petitioner and that the answers given in the interrogatories supplied by petitioner to respondent wherein the respondent had admitted to have paid certain bills to petitioner, amounts to an unequivocal and unconditional admission of liability entitling the petitioner to a decree under Order XII Rule 6 C.P.C.
He also relied upon the judgment of the Supreme Court of India in Balraj Taneja and another Vs. Sunil Madan and another [1] , Karam Kapahi and others Vs. M/s.Lal Chand Public Charitable Trust and another [2] , Regula Krishna Vs. Kondapalli Sampath Kumar and others [3] a n d Pothireddy Kannam Reddy Vs. The District Collector [4] .
10. Order XII Rule 6 C.P.C. states: 
“Order XII – Admissions: 6. Judgment on admissions. 
(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. 
(2) Whenever a judgment is pronounced under subrule(1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.” 
11. Order VIII Rule 5 C.P.C. states: “Order VIII: Written Statement, Set-off And Counter-Claim 5. Specific denial: (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 a 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 subrule (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.” 
12. A reading of Order XII Rule 6 C.P.C. indicates that it is permissible for a Court to grant a decree in favour of plaintiff if there are admissions of fact made either in the pleading or otherwise, whether orally or in writing, without waiting for the determination of any other question between the parties. Thus, this provision enables the Court to pass a decree without insisting on trial if the defendant admits the claim of plaintiff in its entirety or in part.
13. I n Himani Alloys Ltd. v. Tata Steel Ltd [5] , the Supreme Court held that for a decree to be granted under this provision, an admission should be categorical and should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. It held that Order XII Rule 6 CPC is only an enabling provision and it is neither mandatory nor peremptory, but is only discretionary. It observed that the Court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal. It observed that unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. It clarified that the discretion should be used only when there is a clear “admission” which can be acted upon.
14. In Balraj Taneja (1 supra), the Supreme Court held that denial by the defendant in his written statement must be specific with reference to each allegation of fact made in the plaint and a general denial or an evasive denial is not treated as sufficient denial and it is required to be definite, positive and unambiguous.
15. In Karam Kapahi (2 supra), the Supreme Court reiterated that the provision under Order XII Rule 6 C.P.C. is enabling, discretionary and permissible and is neither mandatory nor peremptory and in a given situation it can be applied in rendering the judgment. In that case also it was also observed that admissions can be inferred from facts and admissions of the case and admissions in answer to the interrogatories are also covered under this Rule.
16. In Regula Krishna (3 supra), a learned Single Judge of this Court held that order VIII Rule 5 C.P.C. can be invoked where allegations in the plaint are not specifically denied in the written statement in which event they should be deemed to have admitted.
17. In Pothireddy Kannam Reddy (4 supra), a Division Bench of this Court also placed reliance on Order VIII Rule 5 C.C.P.C. and held that the said principle applies to Writ jurisdiction and can be applied where a Writ petitioner did not file a reply affidavit to the counter affidavit filed by a respondent therein disputing the stand taken by respondent in the counter affidavit.
18. In the written statements filed by respondent nowhere is there a clear, unambiguous and unconditional admission of liability by respondent. Not only had the respondent stated that all material claims, contentions, averments and allegations in the plaints are false and baseless, it had also stated that save those expressly admitted in the written statements, the respondent does not admit any of them and puts the plaintiff to strict and legal proof. That apart, it was specifically contended that the work contracts awarded to petitioner by the then Director are unconscionable and do not bind the respondent, and that the petitioner had procured the same through the said Director by inducement for wrongful gain to itself. It was contended that there was an enquiry by a retired High Court Judge against the Director of respondent for having granted the subject contracts at exorbitant high tender premia contrary to the C.P.W.D. norms to petitioner and that the respondent is avoiding the said contract. It was specifically contended that the then Director of respondent had exceeded his authority in entrusting additional works to petitioner without any written contract and for shockingly excessive tender premia and this entrustment is also not binding on respondent. In addition, there is also denial of liability to pay any amount at the rate of interest claimed in the plaint. In my considered opinion, this amounts to implied denial of every allegation in the plaint. Even the statement of the respondent in response to the interrogatories that some bills submitted by petitioner were paid, does not amount to any admission of liability to pay the balance amounts claimed in the suits.
19. Although learned counsel for petitioner sought to contend that there is no specific denial of the allegations made in the plaint by respondent in the written statement and it amounts to admission of liability by respondent under Order VIII Rule 5 C.P.C., I am unable to agree with the said submission. I am of the considered opinion that in the present case, taking into account the pleadings of the written statement in its entirety, by necessary implication, the allegations in the plaint in so far as the liability of respondent are concerned, are clearly denied.
20. In view of the above discussion, I do not find any error of jurisdiction warranting interference by this Court in the orders passed by the Court below in the orders impugned in these Revision Petitions. 21. Accordingly, the Civil Revision Petitions are dismissed. No costs. However, the Court below is directed to expedite hearing of the suits.
22. As a sequel, miscellaneous petitions pending if any, in these Revisions shall stand closed. ___________________________________ JUSTICE M.S. RAMACHANDRA RAO Date: 22-12-2015 Vsv/* [1] (1999) 8 SCC 396 [2] AIR 2010 SC 2077 [3] 2007(2) ALD 359 [4] 2014(4) ALT 653 [5] 2011(5) SC 273

Sunday, September 11, 2016

Every judicial authority is required to assign reasons for the conclusions drawn by it. Reasons are the life links - No interim injunction should be granted on cryptic lines “Heard the counsel for petitioner. Perused records. Upon consideration of the matter basing on the prima facie case in balance of convenience and also irreparable loss leaning towards the petitioner it is found desirable to issue Interim Injunction until further orders. Issue Interim Injunction accordingly restraining the respondent from terminating the general services agreement dt.01-10-2014 vide agreement No.CW 558370 including amended agreement dt.04-02-2015, and notice. Posted to 15- 02-2016. Order 39 R.3(a) CPC shall be complied with. = No reasons are assigned why a prima facie case is said to have been made out, where the balance of convenience lies and as to the nature of irreparable loss that might occasion to the petitioner in the O.P. Every judicial authority is required to assign reasons for the conclusions drawn by it. Reasons are the life links. They offer guidance as to on what lines the mind of the authority has worked. Since, no reasons are assigned by the Court while passing this order, we have been left guessing. The petitioner is an Information Technology provider, which employs a large number of employees, as its force members. It had entered into an agreement with the respondent herein, who is the petitioner in the O.P. which runs a restaurant and also provides food supplies services. Therefore, a careful assessment as to whether it is really expedient to permit such an agreement to hold the field, pending the O.P or not, ought to have been assessed carefully. Only on the short ground, we set-aside the docket order passed on 03.02.2016 by the Court below and restore the O.P. together with any interlocutory applications lying therein for consideration afresh, in accordance with law and duly assigning reasons for its conclusion

CMA 101 / 2016
CMASR 4358 / 2016CASE IS:DISPOSED
PETITIONERRESPONDENT
M/S BA CONTINUUM INDIA PRIVATE LTD., HYDERABAD  VSM/S S R RESTAURANT, SECUNDERABAD
PET.ADV. : PAVAN KUMARRESP.ADV. : VIJAYSEN REDDY
SUBJECT: ARBITRATION ACTDISTRICT:  HYDERABAD

THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO AND THE HON’BLE DR JUSTICE B. SIVA SANKARA RAO
C.M.A. NO.101 OF 2016 ORDER:
(As per Hon’ble Sri Justice Nooty Ramamohana Rao)
Heard Sri S. Niranjan Reddy, learned counsel for the appellant and Sri Sushanth, learned counsel appearing on behalf of the respondents. While, we admire the able way Sri Sushanth has presented his case on behalf of the respondent herein, but however, we find that the learned III Additional Chief Judge, City Civil Court, Hyderabad, who passed the impugned order on 03.02.2016 has not left us with much of a discretion.
The respondent was the petitioner in O.P.No.292 of 2016 moved under Section 9 of the Arbitration and Conciliation Act, 1996, seeking grant of perpetual injunction restraining the respondent therein from terminating the general services agreement dated 01.10.2014 together with its amended agreement dated 04.02.2015.
We are not adverting to the various contentions that have been canvassed on either side, as we are disposing this C.M.A on a very short ground.
The order passed by the learned III Additional Chief Judge, City Civil Court, Hyderabad, on 03.02.2016 reads as under:
“Heard the counsel for petitioner. Perused records. Upon consideration of the matter basing on the prima facie case in balance of convenience and also irreparable loss leaning towards the petitioner it is found desirable to issue Interim Injunction until further orders. Issue Interim Injunction accordingly restraining the respondent from terminating the general services agreement dt.01-10-2014 vide agreement No.CW 558370 including amended agreement dt.04-02-2015, and notice. Posted to 15- 02-2016. Order 39 R.3(a) CPC shall be complied with.”
No reasons are assigned why a prima facie case is said to have been made out, where the balance of convenience lies and as to the nature of irreparable loss that might occasion to the petitioner in the O.P. Every judicial authority is required to assign reasons for the conclusions drawn by it. Reasons are the life links. They offer guidance as to on what lines the mind of the authority has worked. Since, no reasons are assigned by the Court while passing this order, we have been left guessing. The petitioner is an Information Technology provider, which employs a large number of employees, as its force members. It had entered into an agreement with the respondent herein, who is the petitioner in the O.P. which runs a restaurant and also provides food supplies services. Therefore, a careful assessment as to whether it is really expedient to permit such an agreement to hold the field, pending the O.P or not, ought to have been assessed carefully. Only on the short ground, we set-aside the docket order passed on 03.02.2016 by the Court below and restore the O.P. together with any interlocutory applications lying therein for consideration afresh, in accordance with law and duly assigning reasons for its conclusion.
We, hope and trust, that the matter will be heard and decided on merits, as expeditiously as possible, preferably within a period of four weeks from the date of receipt of this order. Registry is directed to communicate the copy of this order at the earliest. Even otherwise, learned counsel on both sides are granted liberty to file appropriate memo before the Court bringing to it on record, the order passed by us today in this C.M.A which can be acted upon. With this, the appeal stands disposed of. No costs. Consequently, miscellaneous applications pending if any shall also stand closed. No costs. _______________________________________ JUSTICE NOOTY RAMAMOHANA RAO ______________________________________ JUSTICE DR. B. SIVA SANKARA RAO Date:01.04.2016 sp note: cc today b/o sp

Defendant Not permitted to say that the plaintiff signatures of Plaintiff are forged , being an octogenarian might not properly recognize the signature due to loss of sight = The petitioner filed a petition under Order 26 Rule 10-A of Civil Procedure Code r/w Section 45 of the Evidence Act, stating that the respondent-plaintiff refused to file the suit against the petitioner, and it is the sons of the respondent-plaintiff who have forged the signature of the plaintiff on the plaint and filed the suit. And hence, the petitioner prayed the Court below to send the admitted signature of the plaintiff on Ex.B1 along with the signature on the plaint for expert comparison. The trial Court dismissed the application by observing that the plaintiff was examined as PW1 and she categorically stated that she filed the suit against the petitioner-defendant. The trial Court further observed that the plaintiff being a lady aged 82 years, might not recognize her signature but her cross examination supports her pleadings in the plaint, and as the suit is at the stage of arguments, the defendant cannot question that the plaintiff has not filed suit against him.


CRP 688 / 2016
CRPSR 10 / 2016CASE IS:DISPOSED
PETITIONERRESPONDENT
SMT B NIRMALA, HYDERABAD  VSSMT. BASANI RADHAMMA, WARANGAL DIST & 2 OTHERS
PET.ADV. : PALLA DAMODAR REDDYRESP.ADV. : 
SUBJECT: ARTICLE 227DISTRICT:  HYDERABAD


THE HON’BLE SRI JUSTICE G. CHANDRAIAH
CIVIL REVISION PETITION No. 688 of 2016
ORDER: This civil revision petition is filed against the order dated 05.07.2011 passed by the XIII Additional Chief Judge, Fast Track Court, City Civil Court, Hyderabad in I.A.No.431 of 2011 in O.S.No.319 of 2006. The petitioner herein is the defendant in the suit.
2. Heard.
3. The petitioner filed a petition under Order 26 Rule 10-A of Civil Procedure Code r/w Section 45 of the Evidence Act, stating that the respondent-plaintiff refused to file the suit against the petitioner, and it is the sons of the respondent-plaintiff who have forged the signature of the plaintiff on the plaint and filed the suit. And hence, the petitioner prayed the Court below to send the admitted signature of the plaintiff on Ex.B1 along with the signature on the plaint for expert comparison. The trial Court dismissed the application by observing that the plaintiff was examined as PW1 and she categorically stated that she filed the suit against the petitioner-defendant. The trial Court further observed that the plaintiff being a lady aged 82 years, might not recognize her signature but her cross examination supports her pleadings in the plaint, and as the suit is at the stage of arguments, the defendant cannot question that the plaintiff has not filed suit against him.
4. Learned counsel for the petitioner sought to contend that the trial Court erred in dismissing the I.A., inasmuch as the signatures on the plaint are forged signatures and the signature are not of the plaintiff’s and the Court below ought to have sent her admitted signatures on Ex.B1 along with the signatures on the plaint for expert comparison.
5. Admittedly, the plaintiff was examined as PW1. She deposed to the contents and pleadings in the plaint and she categorically stated that she filed the suit against the defendant. As rightly observed by the Court below, the plaintiff, being an octogenarian might not properly recognize the signature due to loss of sight but the fact remains that she did not deny the pleadings in the plaint and the cross examination clearly supported the pleadings in the plaint and she also deposed that she filed the suit against the defendant. The suit is of the year 2006 and the suit is at the stage of arguments. The order under challenge is of the year 2011. When the suit is at the stage of arguments, more particularly when the plaintiff categorically stated that she filed the suit against the petitioner-defendant, the petitioner cannot take a plea that the signatures on the plaint are forged signatures and they should be sent for comparison with the admitted signature of the plaintiff on Ex.B1.
6. In that view of the matter, I see no reason to interfere with the impugned order.
7. Accordingly, the civil revision petition is dismissed. No costs. Miscellaneous petitions, if any pending, shall stand closed. _________________________ JUSTICE G. CHANDRAIAH 26 th February, 2016 ksm THE HON’BLE SRI JUSTICE G. CHANDRAIAH CIVIL REVISION PETITION No. 688 of 2016 26 th February, 2016 ksm

No interim injunction when prima facie case is not in favour of plaintiffs and so also balance of convenience. = Admittedly, there were earlier suits between the parties in O.S.No.25 of 2012 which has become final so also O.S.No.15 of 2002 and both the suits were held against plaintiffs-appellants herein. The subject matter of injunction petition is Ac.0.30 gts. of land, which defendant No.16 claimed through a registered gift deed executed by defendant No.7. The suit filed challenging the gift deed was also held against plaintiffs. Trial Court on a consideration of entire material including the orders and decrees in the earlier suits O.S.No.25 of 2012 and O.S.No.15 of 2002 held that prima facie case is not in favour of plaintiffs and so also balance of convenience. Trial Court recording such findings and having held that plaintiffs are not entitled for the relief of temporary injunction, observed that defendants being parties to the suit if any decree is passed it is binding on them and as the relief of injunction is equitable, such relief cannot be granted to the parties who approached the Court without placing any prima facie material. 6. Considering the submissions of both parties instead of going into the merits and demerits of the case, I feel by directing trial Court to expedite trial the ends of justice would be met

CMA 69 / 2016
CMASR 2682 / 2016CASE IS:DISPOSED
PETITIONERRESPONDENT
BALESAB, MAHABUBNAGAR DIST & 4 OTHERS  VSJALEEL AHMED SAUDAGAR, MAHABUBNAGAR DIST & 31 OTHERS
PET.ADV. : MAHADEV ANYARAMBHATLARESP.ADV. : VIJAY KUMAR HEROOR
SUBJECT: ORDER 43DISTRICT:  MAHABUBNAGAR

HON’BLE SRI JUSTICE S. RAVI KUMAR
CIVIL MISCELLANEOUS APPEAL No.69 of 2016
JUDGMENT: This appeal is preferred against order in I.A.No.701 of 2015 in O.S.No.62 of 2015 on the file of VII Additional District Judge, Mahabubnagar.
2. Appellants herein are plaintiffs in O.S.No.62 of 2015 and in that suit they filed I.A.No.701 of 2015 seeking temporary injunction restraining respondent Nos.5, 6 and 16 from making any constructions in Sy.No.368/AA of Marikal Village of Dhanwada Mandal, which is shown as part of ‘B’ schedule in the suit. The suit is filed for partition of suit schedule properties and also for perpetual injunction restraining defendants from alienating the suit schedule property pending the suit. Defendant Nos.5, 6 and 16 resisted the petition, but subsequently plaintiffs have withdrawn the claim against defendant No.6 only. Defendant No.5 and 16 resisted the injunction petition contending that plaintiffs approached the Court suppressing the true facts and that defendant No.16 is absolute owner of Ac.0.30 gts. of land covered by Sy.No.368/A out of total extent of Ac.2.05 gts. and the suit filed for cancellation of gift deed is decreed and it has reached finality and plaintiffs have no prima facie right in the suit properties. 
3. Trial Court on a consideration of prima facie material and contentions and rival contentions of both parties held that plaintiffs are not entitled for the relief of temporary injunction by holding that defendants being parties to the proceedings are bound to abide the decree that may be passed in the suit. Now aggrieved by the dismissal of the interim injunction petition plaintiffs preferred the present miscellaneous appeal.
4. Heard both sides.
5. Admittedly, there were earlier suits between the parties in O.S.No.25 of 2012 which has become final so also O.S.No.15 of 2002 and both the suits were held against plaintiffs-appellants herein. The subject matter of injunction petition is Ac.0.30 gts. of land, which defendant No.16 claimed through a registered gift deed executed by defendant No.7. The suit filed challenging the gift deed was also held against plaintiffs. Trial Court on a consideration of entire material including the orders and decrees in the earlier suits O.S.No.25 of 2012 and O.S.No.15 of 2002 held that prima facie case is not in favour of plaintiffs and so also balance of convenience. Trial Court recording such findings and having held that plaintiffs are not entitled for the relief of temporary injunction, observed that defendants being parties to the suit if any decree is passed it is binding on them and as the relief of injunction is equitable, such relief cannot be granted to the parties who approached the Court without placing any prima facie material.
6. Considering the submissions of both parties instead of going into the merits and demerits of the case, I feel by directing trial Court to expedite trial the ends of justice would be met. For these reasons, while dismissing civil miscellaneous appeal, trial Court is directed to proceed with the trial of the suit and decide the same without being influenced by any of the findings which are recorded in I.A.No.701 of 2015 so also in this appeal. 7. For these reasons, appeal is dismissed. 8. Miscellaneous petitions pending, if any, shall stand closed. No costs. __________________ S. RAVI KUMAR, J 18 th February 2016. mar

Executing court can not apportion liabilities of Jdrs = When the respondents-judgments debtors failed to pay the amount, the decree holder filed E.P.No.80 of 2015 before the VIII Junior Civil Judge, City Civil Courts, Hyderabad, seeking to issue warrants and realize the award amount from the salaries of the respondents. The trial Court on 24.04.2015 issued warrants against respondents 1, 2, 3 & 4 for recovering an amount of Rs.48,027/- each towards their portion of liability. =there is no provision of sharing the decretal amount among the judgment-debtors. Under law, the decree-holder can execute the decree against any one of the judgment-debtors or all of them. The order passed by the Executing Court is therefore, erroneous and misconceived.

CRP 436 / 2016
CRPSR 1283 / 2016CASE IS:DISPOSED
PETITIONERRESPONDENT
MARGADARSI CHIT FUND, SECUNDERABAD  VSP. PREETAM SINGH, HYD & FOUR OTHERS
PET.ADV. : DURGA PRASADRESP.ADV. : 
SUBJECT: ARTICLE 227DISTRICT:  HYDERABAD

HON’BLE SRI JUSTICE R.KANTHA RAO and HON’BLE SRI JUSTICE DR B.SIVA SANKARA RAO
C.R.P.No.436 of 2016
ORDER: ( Per Hon’ble Sri Justice R.Kantha Rao)
This Civil Revision Petition is directed against the docket order dated 24.04.2015 passed in E.P.No.80 of 2015 in ABR/CF/No.434 of 2014 by the VIII Junior Civil Judge, City Civil Judge, City Civil Courts, Hyderabad.
The Revision Petitioner is the decree holder, who filed ABR.CF.No.434 of 2014 on the file of the Deputy Registrar of Chits/Arbitrator, Erragadda, Hyderabad (South), for recovery of an amount of Rs.2,06,039/- against the respondents-judgment debtors.
The said case was disposed of on 15.11.2014 directing respondents 1 to 5 to jointly and severally pay the disputed claim amount of Rs.2,06,039/- with interest at 18% per annum on the principal amount of Rs.1,80,000/-. 
When the respondents-judgments debtors failed to pay the amount, the decree holder filed E.P.No.80 of 2015 before the VIII Junior Civil Judge, City Civil Courts, Hyderabad, seeking to issue warrants and realize the award amount from the salaries of the respondents. 
The trial Court on 24.04.2015 issued warrants against respondents 1, 2, 3 & 4 for recovering an amount of Rs.48,027/- each towards their portion of liability.
Challenging the same, the present revision has been preferred.
 Learned counsel appearing for the revision petitioner submits that there is no provision of sharing the decretal amount among the judgment-debtors. 
He further submits that in the Execution Petition, the Executing Court erroneously passed the order apportioning liability among the respondentsjudgment debtors 1 to 4.
Under law, the decree-holder can execute the decree against any one of the judgment-debtors or all of them. The order passed by the Executing Court is therefore, erroneous and misconceived. Accordingly, the Civil Revision Petition is allowed. The petitioner-decree holder is at liberty to execute the decree taking recourse to any method for recovering the decretal amount from one or all other Judgment Debtors. Miscellaneous petitions, if any, pending shall stand closed. __________________________ JUSTICE R.KANTHA RAO __________________________________ JUSTICE DR B.SIVA SANKARA RAO 18 th April, 2016 rkk

admitting secondary evidence i.e. photo copies of Fax Message Receipts= When the original Fax message was faded or erased due to time log, Xerox copies of the same can be received as secondary evidence = It cannot be denied that the receipt obtained on sending of a Fax Message is an electronic record which is printed on paper and would fall within the scope of Section 65 (B) of the Act, 1872. -Under Section 65 (C) of the Act, 1872, when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time, secondary evidence may be given of the existence, condition, or contents of such document. In the present case, the original of the Fax Messages had been filed along with the E.O.P. and due to lapse of time, their contents got erased. It cannot be said that there was any default or neglect on the part of the 1 st respondent in the erasure of the contents on the originals of the Fax Receipts filed along with the E.O.P. The learned counsel for the petitioner was not able to point out how the 1 st respondent could be said to be negligent. He also does not dispute the fact that print outs such as those obtained from fax machines as well as Automatic Teller Machines would fade with the passage of time. In the light of this admitted factual position which the Court has to take judicial notice, it cannot be said that 1 st respondent was not entitled to file photo copies of the original of the documents (Fax Sending Receipts). So the Court below had not committed any error in permitting them to be received as secondary evidence. I do not find any error of jurisdiction in the order passed by the Court below warranting interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India.


CRP 796 / 2016CRPSR 3057 / 2016CASE IS:DISPOSED
PETITIONERRESPONDENT
B HYMAAVATHI, W.G.DIST  VSG.MANGA MANI, W.G.DIST & 11 OTHERS
PET.ADV. : DASARI S V V S V PRASADRESP.ADV. : DURGA PRASAD
SUBJECT: ARTICLE 227DISTRICT:  WEST GODAVARI


HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO
C.R.P.No.796 of 2016
ORDER: Heard the learned counsel for the petitioner and the learned counsel for the respondents.
2. This Civil Revision Petition is filed challenging the order dt.21-01-2016 in E.O.P.No.1 of 2013 passed by the Principal Junior Civil Judge, Palakollu admitting secondary evidence i.e. photo copies of Fax Message Receipts (sending reports) which were sent through the Fax No.08812-245757 to the Fax Nos.(1) 040-27544580, (2) Narasapur and (3) 08812-230052.
3. Petitioner herein is the 1 st respondent in the E.O.P. The 1 st respondent herein filed the said E.O.P. to declare the election of the petitioner to the post of Sarpanch of Valluru Gram Panchayat held on 31-07-2013 as void, to set aside the said election and to declare that the 1 st respondent was duly elected to the said post in the said election. The said E.O.P. was filed in August 2013.
4. It is specifically alleged that in that election, the counting of the votes was not properly done and that 1 st respondent had sent a grievance in that regard to the State Election Commission and to respondent Nos.8 to 11 in the E.O.P. and that this grievance was registered in a Complaint No.60745 dt.01-08-2013 in the office of the 8 th respondent in the E.O.P. Copies of Fax Message Receipts relating to sending of these complaints/letters dt.01-08-2013 to the Election Commissioner, Hyderabad, District Collector, West Godavari District at Eluru, Sub Collector, Narsapur, District Panchayat Officer, Eluru, MPDO, Achanta through fax were also filed along with the Election Petition.
5. After the counter was filed by the petitioner, the trial in the E.O.P. commenced.
6. Thereafter, the 1 st respondent filed I.A.No.627 of 2015 under Order VII Rule 14 CPC read with Sections 63 and 65 of the Indian Evidence Act,1872 alleging that she had sent her grievance to the above persons and also to the State Election Commissioner on 01-08-2013 through Fax and the originals of the four sending Reports were filed along with the E.O.P. as document No.6 and photo copies of the same were also filed for service on the respondents; copies of the said Fax Message Receipts (Sending Reports) along with other documents were served on the respondents through the Court; the printed matter of the said original Fax Message Receipts (Sending Reports) had faded in their entirety at the time of marking the same in the evidence of 1 st respondent; the 1 st respondent was having photo copies of the said Fax Message Receipts (Sending Reports); those photo copies were taken from the original of the Fax Message Receipts (Sending Reports) which are mentioned as list of document No.6 in E.O.P., that the 1 st respondent had approached Manikanta Xerox, through whom, the Fax Messages had been sent and requested the said shop about the fax receipts, but he expressed his inability since he had not stored in his fax machines. The 1 st respondent contended that there was no possibility of producing originals with printed matter and it was beyond his control to get either the originals or copies of the Sending Reports, and so the photo copies of the same may be received as secondary evidence and marked in his evidence. 
7. Counter affidavit was filed by the petitioner opposing the said application. He alleged that the entire society depends upon technology and if the petitioner had really sent fax message to the official respondents, she would preserve the original Fax Message Report in another mode; since this was not done, the photo copies of the Fax Message (Sending Reports) sought to be filed by the petitioner cannot be received.
8. By order dt.26-11-2015, initially the Court below allowed the application and decided to receive the documents in exercise of its power under Order VII Rule 14 CPC observing that proof of validity of those documents can be decided during the trial.
9. Thereafter, on 21-01-2016, the Court below passed a separate order permitting the documents sought to be filed by 1 st respondent as secondary evidence and posted the matter for marking of the documents and for cross examination of P.W.1 to 04-02-2016.
10. It referred to the contentions of the petitioner and held that 1 st respondent had specifically mentioned about the issuing of Fax Messages and the date of the messages in her pleadings, that the Fax Message Receipts were filed along with E.O.P. and are not new documents. It observed that since the print thereon was not visible, 1 st respondent is seeking to file photo copies of the said receipts. It held that original documents were not available and the print on the documents originally filed by 1 st respondent had disappeared due to lapse of time since they were Fax Message Receipts. It observed that the contents of the documents when compared with the description mentioned in the petition as well as with the documents filed earlier indicate that the documents sought to be filed are not new ones and in the absence of any primary evidence, the secondary evidence cannot be opposed and these documents can be marked as exhibits. It observed that the question whether 1 st respondent sent the messages or not cannot be decided at the stage of marking of the documents and the same can be received in the evidence. It also relied on Section 65-B of the Evidence Act, 1872 and observed that these documents proposed to be marked are the output of a computer and it is an electrical record which can be accepted as evidence particularly when the print on the original documents filed by 1 st respondent along with E.P. had disappeared. So the photo copies which are visible can be accepted as secondary evidence as per Section 65 of the Evidence Act, 1872.
11. Learned counsel for the petitioner contended that this order of 21-01-2016 is contrary to law and there is no proper explanation regarding the original of the Fax Receipts and if really the originals were existing at the time of filing of the E.O.P., the 1 st respondent would have taken attested copy of the originals.
12. Learned counsel for the 1 st respondent refuted the above submissions and supported the order passed by the Court below.
13. It cannot be denied that the receipt obtained on sending of a Fax Message is an electronic record which is printed on paper and would fall within the scope of Section 65 (B) of the Act, 1872. 
14. Under Section 65 (C) of the Act, 1872, when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time, secondary evidence may be given of the existence, condition, or contents of such document.
15. In the present case, the original of the Fax Messages had been filed along with the E.O.P. and due to lapse of time, their contents got erased. It cannot be said that there was any default or neglect on the part of the 1 st respondent in the erasure of the contents on the originals of the Fax Receipts filed along with the E.O.P. The learned counsel for the petitioner was not able to point out how the 1 st respondent could be said to be negligent. 
16. He also does not dispute the fact that print outs such as those obtained from fax machines as well as Automatic Teller Machines would fade with the passage of time. 
17. In the light of this admitted factual position which the Court has to take judicial notice, it cannot be said that 1 st respondent was not entitled to file photo copies of the original of the documents (Fax Sending Receipts). So the Court below had not committed any error in permitting them to be received as secondary evidence. I do not find any error of jurisdiction in the order passed by the Court below warranting interference by this Court in exercise of its jurisdiction under Article 227 of the Constitution of India. 18. Accordingly, the Civil Revision Petition is dismissed. No costs. 19. As a sequel, the miscellaneous petitions, if any pending, shall stand closed. __________________________________ JUSTICE M.S.RAMACHANDRA RAO Date: 03-06-2016 kvr

Contempt of court after passing injunction decree = when photos shows only repair of damaged wall - it can not be said the Jdr violated the injunction orders = These averments would disclose that even by the time, the suit was instituted, the house belonging to defendants was already demolished in order to construct a new house within their property. Photograph at page No. 41 filed along with this revision would show that joint wall was partially affected. Photographs filed by the plaintiff along with the vacate petition would disclose that by December, 2015, defendants constructed a new house and affected portion of the wall is also now filled up. These photographs are testimony to the fact that after the suit is decreed, no demolition is caused and in fact the small offending portion of the joint wall is now filled. =Though, the Court below elaborately discussed the rival contentions, without giving any findings on the rival contentions, allowed the Execution Petition and ordered for arrest. It is not stated how the defendants disobeyed the decree passed by the Court below, much less, such disobedience is not held as deliberate and willful. On the contrary, material on record would disclose that no damage whatsoever is caused to the schedule joint wall by the defendants after the decree was passed. =The order under revision is unsustainable and it is accordingly set aside. In the result, the revision is allowed.

CRP 318 / 2016
CRPSR 1563 / 2016CASE IS:DISPOSED
PETITIONERRESPONDENT
KOKA VEKATARAMAAPPA AANTHAPUR DIST & ANR  VSKOKA GOVINDAPPA, ANANTHAPUR DIST
PET.ADV. : HAMSA DEVINENIRESP.ADV. : KUMMATHI VENKATESULU
SUBJECT: C.P.C.DISTRICT:  ANANTAPUR
HONOURABLE SRI JUSTICE P. NAVEEN RAO
CIVIL REVISION PETITION No. 318 of 2016
Date :11-04-2016
Between : Koka Venkataramanappa s/o Veerappa, Aged 85 years, Occu: Agriculture, r/o Nimbagallu Village, Uravakonda Mandal, Ananthapur District, Andhra Pradesh and another. … Petitioners/judgment debtors
And
Koka Govindappa S/o Veerappa, Aged about 74 years, Occu: Agriculture, r/o.Bimbagallu village, Uravakonda Mandal, Ananthapur District, Andhra Pradesh. … Respondent / decree holder
The Court made the following:
HONOURABLE SRI JUSTICE P. NAVEEN RAO
CIVIL REVISION PETITION No. 318 of 2016
ORAL ORDER: Parties are referred to as they are arrayed before the Court below.
2. This revision is filed against the order in E.P. No. 33 of 2015 in O.S. No. 62 of 2005 dated 06.01.2016 on the file of the Court of Junior Civil Judge, Uravakonda. The suit is filed by sole respondent herein praying to grant decree of permanent injunction restraining the defendants/revision petitioners from disturbing the western joint wall of the plaint schedule property. The suit was decreed granting permanent injunction regarding the plaint schedule property with direction to the defendants not to interfere with the peaceful possession and not to disturb the western joint wall.
3. Alleging that the judgment and decree is violated, plaintiff filed Execution Petition. Plaintiff alleged that the defendants made constructions violating the injunction order. The Court below held that the defendants disobeyed the Court orders, allowed the petition and issued arrest warrant against the defendants. 
4. Learned counsel for defendants contended that Court below exceeded its jurisdiction in allowing Execution petition. The defendants have not violated the decree passed in the suit. No demolition took place after the suit was decreed as alleged by the plaintiff. He further submitted that it is a joint wall belonging to plaintiff and defendants and since the house owned by the defendants was in dilapidated condition, defendants decided to undertake construction of new house and accordingly old house was demolished much prior to institution of suit and constructed a new house. The wall being joint wall belonging to the plaintiff and defendants, defendants are entitled to undertake construction on their side of the wall and by doing so, it cannot be alleged that the defendants have violated the decree passed against them. Learned counsel further contended that aggrieved by the exparte decree, the defendants filed application to set aside the ex-parte decree and the same is pending consideration by the Court below. The Court below erred in disposing of the Execution Petition, without considering the petition to set aside the ex-parte decree.
5. By referring to the photograph filed at page 41 of the revision, learned counsel for plaintiff contended that defendants sought to alter the suit schedule property and, thus, violated the decree passed against them. Defendants caused damage to the wall. He therefore, justifies the order passed by the Court below. 
6. The averments in para 3 of the plaint disclose that by the time suit was instituted the defendants already demolished the house belonging to them and started constructing a house in their open site. It was alleged that in the process of undertaking construction, the defendants were affecting the joint wall, which might endanger the entire structure of his property. It was further averred that in spite of plaintiff requesting defendants not to disturb the joint wall, as any disturbance to the joint wall would result in collapse of his house, they did not heed to his request and proceeded to undertake construction.
7. These averments would disclose that even by the time, the suit was instituted, the house belonging to defendants was already demolished in order to construct a new house within their property. Photograph at page No. 41 filed along with this revision would show that joint wall was partially affected. Photographs filed by the plaintiff along with the vacate petition would disclose that by December, 2015, defendants constructed a new house and affected portion of the wall is also now filled up. 
8. These photographs are testimony to the fact that after the suit is decreed, no demolition is caused and in fact the small offending portion of the joint wall is now filled. 
9. The Constitution of India guarantees every citizen fundamental right to freedom and liberty. When personal liberty of a person is in jeopardy, the Court must be extra cautions and unless there is unimpeaching evidence to show that his actions were deliberate, willful and his conduct offends the authority of the Court, his liberty and freedom should not be curtailed.
10. Though, the Court below elaborately discussed the rival contentions, without giving any findings on the rival contentions, allowed the Execution Petition and ordered for arrest. It is not stated how the defendants disobeyed the decree passed by the Court below, much less, such disobedience is not held as deliberate and willful. On the contrary, material on record would disclose that no damage whatsoever is caused to the schedule joint wall by the defendants after the decree was passed.
11. The order under revision is unsustainable and it is accordingly set aside. In the result, the revision is allowed. No costs. Having regard to the same, miscellaneous petitions, if any pending, are closed. ______________ DATE:11.4.2016 P NAVEEN RAO,J TVK HONOURABLE SRI JUSTICE P. NAVEEN RAO CIVIL REVISION PETITION No. 318 of 2016 Date :11-04-2016 Tvk

15.The import of Rules 5 to 7 of the S.C. & S.T. (Prevention of Atrocities) Rules could be mentioned that an Officer in charge of a police station on receipt of every information relating to the commission of an offence under the Act, shall reduce the same to writing and may send the substance of such report in writing by post to the Superintendent of Police, who after investigation either by himself or by a Police Officer not below the rank of Deputy Superintendent of Police shall make an order in writing to the officer-in-charge of the concerned Police Station to enter the substance of that information to be entered in the book to be maintained by that Police Station; that if any atrocity is committed on the members of the S.C. and S.T. communities within his jurisdiction, the District Magistrate or Sub Divisional Magistrate or D.S.P. shall immediately visit the place of occurrence to assess the extent of atrocity, loss of life or damage to the property and submit a report forthwith to the Government besides doing such other things as contemplated under Rule 6 and under Rule 7. The Investigating Officer shall be a Police Officer not below the rank of a Deputy Superintendent of Police and the said Investigating Office shall be appointed by the State Government/Director General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time and on investigation, the said Officer shall submit the report to the Superintendent of Police who would in turn forward the same to the Director General of Police of the State Government; that the Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution, the officer-in-charge of prosecution and the Director General of Police shall review by the end of every quarter the position of all investigations done by the Investigating Officer. 16. While such being the procedures contemplated by the Rules prescribed there under, it is a mystery as to why the petitioner has not chosen to follow these procedures so as to make his complaint before the authorities concerned, but bypassing the procedures, the petitioner has gone straight to the Magistrate in filing the private complaint. ` 17. On the part of the Magistrate too, without having regard to these Rules, he has entertained the complaint filed by the petitioner and has forwarded the same as though it is like the other complaints normally being filed before him, which are general in nature. Since the S.C. & S.T. (Prevention of Atrocities) Act being a Special Act, having the over-riding effect on other general laws, the Magistrate should have outright rejected the complaint directing the petitioner to seek resort to the relevant rules of procedures established by law and since the Magistrate did not adopt the procedures contemplated there under law, it has given way for many precipitations. 18. On the part of the petitioner too, though he now comes forward to allege that the Investigating Officer must be the Deputy Superintendent of Police and not an Inspector of Police, he himself has not chosen to file the complaint in the manner contemplated under the Rules, but for no reason assigned, has chosen to file the private complaint before the Magistrate. 19. When the Rules contemplate as to where the complaint is to be lodged, without trying that source and lodging the complaint before that particular authority before whom the complaint would lie, the petitioner, for no reason assigned, has filed the same before the Magistrate seeking direction, which is irregular, as a result of which every thing has gone wrong in the whole affair connecting to the complaint. 2003 http://judis.nic.in/judis_chennai/qrydisp.aspx?filename=1265

IN THE HIGH COURT OF JUDICATURE AT MADRAS


DATED: 04/02/2003

CORAM

THE HONOURABLE MR.JUSTICE V.KANAGARAJ

CRIMINAL ORIGINAL PETITION NO.818 OF 2003


K.P.S.Sathyamoorthy ... Petitioner

-Vs-

1.State of Tamilnadu,
through the Inspector of Police,
Protection of Civil Right Unit,
Virudhunagar,
Virudhunagar District.

2.The District Superintendent of Police,
Virudhunagar District,
Virudhunagar.

3.The Director General of Police,
Office of the Director General of Police,
Chennai.

4.Sri Kanchi Sangarachariar Sreemath
Jayendra Saraswathi Swamigal,
Kanchi Kamakodi Peedathipathy,
Sree Saradha Madam Sannithanam,
Kanchipuram. ... Respondents.


Criminal Original Petition filed under Section 482 of the Code
of Criminal Procedure for the relief stated therein.

For petitioner : Mr.V.N.Santharam for
G.Vijayakumar&J.Yuvaraj Shekar

^For R.1 to R.3 : Mr.N.R.Chandran,
Advocate General and
Mr.I.Subramaniam,
Public Prosecutor for
Mr.O.Srinath, Govt.Advocate(crl.side)

For R.4 : Mr.K.Rajasekaran and
Mr.R.Natarajan


:O R D E R
The petitioner, alleging to be belonging to the Scheduled Caste being
a member of the Hindu Pallan community and professing Hindu religious faith,
has come forward to file the above criminal original petition praying to call
for the records and quash the final report dated 1 4.11.2002 filed by the
first respondent before the Court of Judicial Magistrate, Sivakasi in
Crl.M.P.No.4936 of 2002 as illegal and improper and to issue necessary
directions or orders for fresh investigation in respect of the complainant's
complaint dated 28.10.2002 filed before the said Magistrate by any other
competent investigating agency.

2. The petitioner would submit that on 26.10.2002 while he was going
through the leading Tamil Daily magazines `Dina Thanthi' and `Dina Malar'
circulated in his area, he read a press statement in the nature of a circular
given by the 4th respondent/accused inviting all Hindu Religious communal
associations to attend a meeting to be held at Madras in respect of giving
clarification to the present enactment of the State of Tamil Nadu prohibiting
compulsory religious conversion, which is an insult on all the members of the
S.C. and S.T. communities within the public view and the entire statement is
in the nature of creating enmity, hatred and ill-will between different
religious classes, castes and communities.

3. The petitioner has also extracted the objectionable portion of the
4th respondent, which is extracted below:
** ,J tiuapy; fpw!;Jt kjj;jpy; cs;sth;fs; gog;g[ Kjy; vy;yh rYiffisa[k;
mDgtpj;J tpl;L cj;jpnahfk; vd tUk; nghJ jhH;j;jgl;lth;fSf;F mjpfg;goahf
cj;jpnahf tha;g;g[ bfhLf;fg;gLtjhy; jpUk;gt[k; ,e;Jthf khwp cj;j;pnahfj;jpw;F
te;J bfhz;oUe;jdh;/

,e;J rkaj;ijr; nrh;e;j midj;J tFg;gpdiua[k;. $hjp r';f';f';fisa[k;
miHj;J kj khw;w jilr;rl;l tpsf;ff; Tl;lk; eilbgWk;/ ,f;Tl;lk; vd; jiyikapy;
eilbgWk;/ ,jpy; midj;J $hjp r';f';fSk; Fwpg;ghf mk;ngj;fhh; tHpia gpd;gw;Wk;
bghJkf;fs; mtrpak; fye;J bfhs;sntz;Lk;

4. Extracting the above Tamil version of the publication, the
petitioner would state that he presented the complaint against the fourth
respondent/accused for offences punishable under Sections 3(1)(x) of the
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act,
1989, under Section 505(2) of the IPC and Section 3(g) of the Religious
Institutions (Prevention of Misuse) Act before the Judicial Magistrate,
Sivakasi, who took the complaint on file, numbered the same as Crl.M.P.No.4936
of 2002 and directed the first respondent to investigate the complaint under
Section 156(3) Cr.P.C. and to submit a final report thus forwarding the said
complaint to the first respondent on the very same day.

5. The petitioner has further stated that since nothing was heard
from the first respondent, he appeared before him on 9.11.2002 and enquired
about the stage of the case, when he was given to understand that the said
complaint was to be sent to the Assistant Director of Prosecution at
Virudhunagar seeking opinion regarding the sustainability of the complaint and
registering the case for investigation and the final report would be submitted
before the Court. During the said meeting, the petitioner is also alleged to
have informed the first respondent of the mandatory provisions of the
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules,
1995 followed by which he also submitted an explanatory letter dated
13.11.2002 by registered post; that in spite of receipt of the said letter on
14.11.2002, the first respondent did not consider anything stated therein and
filed the final report accompanied by the legal opinion of the Assistant
Director of Prosecution before the Magistrate to the effect that the
petitioner's complaint did not disclose or satisfy the ingredients of the
offences alleged against the fourth respondent and therefore no investigation
was necessary, based on which the Judicial Magistrate, Sivakasi passed an
order on 18.11.2002 stating that the petitioner's complaint in Crl.M.P.No.4936
of 2002 stood re jected.

6. On rejection of his complaint by the Judicial Magistrate, Sivakasi
in the manner aforementioned, the petitioner, stating that the final orders
passed in Crl.M.P.No.4936 of 2002 by the Judicial Magistrate, Sivakasi are
prima facie illegal and liable to be quashed, has come forward to file the
above criminal original petition on certain grounds as brought forth in the
grounds of memorandum such as (i) that the first respondent has no statutory
right or power or authority to investigate the complaint for alleged offences
under the S.C.&S.T. ( Prevention of Atrocities) Act as per Rule 5 of the
SC.&S.T.(Prevention of Atrocities) Rules, 1995; (ii) that for the alleged
offence under the S.C.&S.T.(prevention of Atrocities) Act along with the other
offences, the investigation could be carried out by the first respondent in
view of the statutory prescription under Rule 7 of the said Rules.

7. Citing two decided cases, the first one reported in 1998-1-MWN (
Crl.)-259 = 1998(I)CTC 276 (A.SASIKUMAR vs. THE SUPERINTENDENT OF POLICE,
VILLUPURAM) and the second one reported in 1998-1-MWN (Crl.)349 (MRS.MARIAMMAL
vs. STATE OF TAMILNADU) wherein a learned single Judge of this Court has held
that `within the meaning of Rule 7 of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Rules, 1 995, the Inspector of police has no
power or jurisdiction to investigate the matter arising out of Act 33 of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and
that the investigation should be done by an Officer not below the rank of a
Deputy Superintendent of Police whether the allegations are true or
otherwise', and giving expression to the legality of Rule 7 of the said Rules,
Sections 157(1)(b) and 157(2) of the Cr.P.C. and Section 3 of the S.C.& S.T.
(Prevention of Atrocities) Act, the petitioner would pray to the relief
extracted supra.

8. During arguments, the learned counsel appearing on behalf of the
petitioner, besides laying emphasis on those averments of the above criminal
original petition, would also submit that the Assistant Director of
Prosecution cannot give his opinion as it is in the case in hand; that it is a
case under the Special Act and a special prosecution should have been
contemplated and investigated into which the respondents 1 to 3 have failed to
do; that the Inspector of Police cannot investigate a case arising out of
S.C.&S.T. (Prevention of Atrocities) Act, but only a Deputy Superintendent of
Police and Officers above in rank could do the investigation as per the
relevant provisions of the said Rules. At this juncture, the learned counsel
for the petitioner would submit the following judgments:

1. 1999(III) CTC 464 (P.ALAGARSAMY vs. STATE OF TAMIL NADU REP.BY SECRETARY,
HOME DEPARTMENT, CHENNAI-9 AND FOUR OTHERS.

2. AIR 1992 SC 604(STATE OF HARYANA AND OTHERS vs. CH.BHAJAN LAL AND OTHERS)

3. 1982 CRI.L.J. 872 (SHANTABAI AND ANOTHER vs. STATE OF MAHARASHTRA)

9. In the first judgment cited above, it is a case of the victim
lodging FIR for offences under Section 3(x)(i) of S.C. & S.T. ( Prevention
of Atrocities) Act, 1989 r/w.Sections 323,341,355 and 147 against 5 persons
and the DSP deleted offence under Section 3(x)(i) of 1989 Act and directed the
Inspector to take further action for IPC offences, but no intimation was given
to the informant about the dropping of offence under S.C.&S.T. (Prevention of
Atrocities) Act, 1989 and the High Court held that the law enforcing agencies
were unduly hasty in dropping the main offences and acted in total disregard
to procedure and setting aside the order of conviction, directed the S.P. to
appoint some other D.S.P. to conduct fresh investigation under his direct
supervision and issued further directions to follow proper procedure.

10. In the second judgment cited above, the Honourable Apex Court has
held:

"In following categories of cases, the High Court may in exercise of powers
under Art.226 or under S.482 of Cr.P.C. may interfere in proceedings relating
to cognizable offences to prevent abuse of the process of any Court or
otherwise to secure the ends of justice. However, power should be exercised
sparingly and that too in the rarest of rare cases.
1.Where the allegations made in the First Information Report or the complaint,
even if they are taken at their face value and accepted in their entirety do
not prima facie constitute any offence or make out a case against the accused.

2.Where the allegations in the First Information Report and other materials,
if any, accompanying the F.I.R. do not disclose a cognizable offence,
justifying an investigation by police officers under S.156(1 ) of the Code
except under an order of a Magistrate within the purview of S.155(2) of the
Code.

3.Where the uncontroverted allegations made in the FIR or complaint and the
evidence collected in support of the same do not disclose the commission of
any offence and make out a case against the accused.

4.Where, the allegations in the F.I.R. do not constitute a cognizable offence
but constitute only a non-cognizable offence, no investigation is permitted by
a police officer without an order of a Magistrate as contemplated under
S.155(2) of the Code.
5.Where the allegations made in the FIR or complaint are so absurd and
inherently improbable on the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for proceeding against the
accused.
6.Where there is an express legal bar engrafted in any of the provisions of
the Code or the concerned Act (under which a criminal proceeding is
instituted) to the institution and continuance of the proceedings and/or where
there is a specific provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
7.Where a criminal proceeding is manifestly attended with mala fide and/or
where the proceeding is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to spite him due to private
and personal grudge."

It has been further held in this judgment that
"Where the Order directing an Inspector was one word under " investigate" in
respect of offences under S.5(1)(e) of Corruption Act and Ss.1 61 and 165 of
Penal Code, the Inspector was not clothed with valid legal authority to take
up the investigation and proceed with the same within the meaning of S.5A(1)
of the Prevention of Corruption Act."

11. In the last judgment cited on behalf of the learned counsel for
the petitioner, a Division Bench of the Bombay High Court has held:

"Section 7(1)(d) of the Protection of Civil Rights Act deals with insult or
attempt to insult on the ground of untouchability a member of Scheduled Caste.
The word `insult' in the legal parlance means to treat with offensive
disrespect or to offer indignity to a person. The significance to be attached
to the words used would obviously depend on the facts and circumstances of
each case, the occasion and the manner in which the words are used and person
to whom they are addressed. Any act or speech meant to hurt the feelings or
self-respect of another or to treat a person with insolence or contempt by
words or action would obviously amount to an insult. When a person belonging
to higher caste offers insult to a Harijan or to a person belonging to
Scheduled Caste on the ground of his caste, then the said act is presumed to
fall within the inhibition contained in the section. In such cases, the
burden would shift on the accused to establish that the act alleged to be
committed was not committed on the ground of untouchability but on some other
ground. The quantum and nature of proof required to displace the presumption
must vary according to the facts and circumstances of each case."

The learned counsel would end up his arguments praying to either allow the
criminal original petition or at least order fresh investigation to be done.

12. In reply, the learned Advocate General, Tamil Nadu appearing on
behalf of the respondents 1 to 3 along with the learned Public Prosecutor,
High Court, Madras, in his crisp arguments would submit that neither the
petition could be allowed nor fresh investigation be ordered in the case in
hand and once the Magistrate accepts the report made by the Assistant Director
of Prosecution, there is no point in going back much less ordering fresh
investigation since the order has been passed based on the legal position of
the subject. The learned Advocate General would further submit that the
inherent powers conferred by law upon this Court under Section 482 of the
Cr.P.C. could be made use of only for limited purposes, such as abuse of
process of law; that the extract of the newspaper given in the complaint does
not at all contemplate any penal action much less under the penal provisions
of the S.C. & S.T. (Prevention of Atrocities) Act as it has been wrongly
invoked in the circumstances of the case. On such arguments, the learned
Advocate General would pray to dismiss the above criminal original petition
confirming the order of the learned Magistrate.
The learned counsel appearing on behalf of the fourth respondent would
also adopt the arguments of the learned Advocate General regarding the subject
matter.

13. In consideration of the facts pleaded, having regard to the
materials placed on record and upon hearing the learned counsel for all the
parties as mentioned above, what comes to be known is that the petitioner
alleging that he belongs to the Scheduled Caste and that the statement
published in Tamil Daily Magazines `Dina Thanthi' and ` Dina Malar' alleged to
have been uttered by the 4th respondent in the nature of creating enmity,
hatred and ill-will between different religious classes, castes and
communities, has filed a private complaint before the learned Judicial
Magistrate, Sivakasi as against the fourth respondent for the offences
punishable under Sections 3(1)(x) of the S.C.&S.T. (Prevention of Atrocities)
Act, 1989, Section 505(2) IPC and Section 3(g) of the Religious Institutions
(Prevention of Misuse) Act and the said Court has referred it to the first
respondent under Section 156(3) Cr.P.C. directing him to investigate the
complaint and submit a final report as per its order dated 30.10.2002 and the
first respondent having obtained the opinion of the Assistant Director of
Prosecution concerned, has filed his final report along with the legal opinion
of the Assistant Director of Prosecution on 14.11.2002 before the said
Magistrate and since the Magistrate finding that the petitioner's complaint
did not satisfy the ingredients of the offences alleged against the 4th
respondent, has rejected the complaint of the petitioner, testifying the
validity of which the petitioner has come forward to institute the above
criminal original petition seeking the reliefs extracted supra.
14. At the outset, it is necessary to discuss two aspects of the
case, the first one legal and procedural and the second one factual which
would decide the case of the petitioner ultimately. The legal cum procedural
aspect being one concerned with Rules 5 to 7 of the S.C. & S.T (Prevention of
Atrocities) Rules which are relevant for consideration and in fact the
petitioner also heavily relies on these Rules, not only laying emphasis on
these Rules but also extracting from already decided cases, which have been
extracted supra.

15. The import of Rules 5 to 7 of the S.C. & S.T. (Prevention of
Atrocities) Rules could be mentioned that an Officer in charge of a police
station on receipt of every information relating to the commission of an
offence under the Act, shall reduce the same to writing and may send the
substance of such report in writing by post to the Superintendent of Police,
who after investigation either by himself or by a Police Officer not below the
rank of Deputy Superintendent of Police shall make an order in writing to the
officer-in-charge of the concerned Police Station to enter the substance of
that information to be entered in the book to be maintained by that Police
Station; that if any atrocity is committed on the members of the S.C. and
S.T. communities within his jurisdiction, the District Magistrate or Sub
Divisional Magistrate or D.S.P. shall immediately visit the place of
occurrence to assess the extent of atrocity, loss of life or damage to the
property and submit a report forthwith to the Government besides doing such
other things as contemplated under Rule 6 and under Rule 7. The Investigating
Officer shall be a Police Officer not below the rank of a Deputy
Superintendent of Police and the said Investigating Office shall be appointed
by the State Government/Director General of Police/Superintendent of Police
after taking into account his past experience, sense of ability and justice to
perceive the implications of the case and investigate it along with right
lines within the shortest possible time and on investigation, the said Officer
shall submit the report to the Superintendent of Police who would in turn
forward the same to the Director General of Police of the State Government;
that the Home Secretary and the Social Welfare Secretary to the State
Government, Director of Prosecution, the officer-in-charge of prosecution and
the Director General of Police shall review by the end of every quarter the
position of all investigations done by the Investigating Officer.

16. While such being the procedures contemplated by the Rules
prescribed thereunder, it is a mystery as to why the petitioner has not chosen
to follow these procedures so as to make his complaint before the authorities
concerned, but bypassing the procedures, the petitioner has gone straight to
the Magistrate in filing the private complaint.

` 17. On the part of the Magistrate too, without having regard to these
Rules, he has entertained the complaint filed by the petitioner and has
forwarded the same as though it is like the other complaints normally being
filed before him, which are general in nature. Since the S.C. & S.T.
(Prevention of Atrocities) Act being a Special Act, having the over-riding
effect on other general laws, the Magistrate should have outright rejected the
complaint directing the petitioner to seek resort to the relevant rules of
procedures established by law and since the Magistrate did not adopt the
procedures contemplated thereunder law, it has given way for many
precipitations.

18. On the part of the petitioner too, though he now comes forward to
allege that the Investigating Officer must be the Deputy Superintendent of
Police and not an Inspector of Police, he himself has not chosen to file the
complaint in the manner contemplated under the Rules, but for no reason
assigned, has chosen to file the private complaint before the Magistrate.

19. When the Rules contemplate as to where the complaint is to be
lodged, without trying that source and lodging the complaint before that
particular authority before whom the complaint would lie, the petitioner, for
no reason assigned, has filed the same before the Magistrate seeking
direction, which is irregular, as a result of which every thing has gone wrong
in the whole affair connecting to the complaint.

20. Coming to the factual aspect of the case, the petitioner does not
seem to have been an aggrieved party, since the petitioner is born, bred and
continues to be a Hindu S.C. man whereas the remark said to have been uttered
by the 4th respondent is only against those who enjoy the privileges as
Christians being members of the Christian religion and got converted to the
Hindu religion for the purpose of enjoying the job opportunities. Since the
petitioner does not fall under this category, he is not the aggrieved party
entitled to question the validity of such a remark said to have been made on
the part of the 4 th respondent since he does not have the locus standi to do
so.

21. Secondly, the statement alleged to have been made by the 4th
respondent is based on facts which are not at all either denied or rebutted by
the petitioner in his complaint stating that no such conversion has taken
place and that it is a false statement. Even taking for granted that the 4th
respondent has uttered the said remarks, extracted in Tamil in the preceding
paragraph, regarding certain members of Christian religion getting themselves
converted into Hinduism for the purpose of enjoying the job opportunities in
the past. Since being a fact, neither this statement is denied nor
established as false on the part of the petitioner in his pleadings nor even
an attempt has been made by him to the said effect and calling a spade a
spade, cannot be an insult to the S.C. and S.T. community men nor the
statement could create enmity or hatred or ill-will between different
religious classes, which is a reality and therefore neither there is anything
wrong nor could the petitioner, who is not that category having enjoyed the
privileges as a Christian and getting himself converted as a Hindu for job
opportunities, can have the locus standi to testify the veracity of the
statement.

22. Further, since the case of the petitioner is that the 4th
respondent has committed the offences punishable under Sections 3(1)(x) of the
S.C.&S.T.(P.A.)Act, 1989, 505(2) IPC and Section 3(g) of the Religious
Institutions (Prevention of Misuse) Act, 1988, it has become incumbent on the
part of this Court to extract the above three Sections:

"Section 3 of the S.C.&S.T.(P.A.)Act,1989: PUNISHMENT FOR OFFENCES OF
ATROCITIES
(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe -
(i) ...
(ii) ...
(iii) ...
(iv) ...
(v) ...
(vi) ...
(vii) ...
(viii) ...
(ix) ...
(x)intentionally insults or intimidates with intent to humiliate a member of a
Scheduled Caste or a Scheduled Tribe in any place within public view."

"Section 505(2) IPC: STATEMENTS CREATING OR PROMOTING ENMITY, HATRED OR
ILL-WILL BETWEEN CLASSES: (2) Whoever makes, publishes or circulates any
statement or report containing rumour or alarming news with intent to create
or promote, or which is likely to create or promote, on grounds of religion,
race, place of birth, residence, language, caste or community or any other
ground whatsoever, feelings of enmity, hatred or ill-will between different
religious, racial, language or regional groups or castes or communities, shall
be punished with imprisonment which may extend to three years, or with fine,
or with both."

"Section 3(g) of the Religious Institutions (Prevention of Misuse) Act, 1988:
"3. PROHIBITION OR USE OF RELIGIOUS INSTITUTIONS FOR CERTAIN PURPOSES - No
religious institution or manager thereof shall use or allow the use of any
premises belonging to, or under the control of, the institution -
(a) ...
(b) ...
(c) ...
(d) ...
(e) ...
(f) ...
(g) for the doing of any act which promotes or attempts to promote disharmony
of feelings of enmity, hatred or ill-will between different religious, racial,
language or regional groups or castes or communities; or ..."

23. So far as the first and second of the above Sections viz.
Section 3(1)(x) of the S.C.&S.T.(P.A.)Act, 1989 and Section 505(2) IPC are
concerned, `intention' is the pre-condition for the commission of the offence
under these Sections. Nowhere the petitioner has made it available the
required `intention' on the part of the 4th respondent to indulge in such
offences mentioned therein nor has he at least made it clear as to the object
sought to be achieved by the fourth respondent in making such statements or
remarks so as to apply these Sections for the imputation alleged to have been
made on the part of the fourth respondent.

24. So far as the third above Section i.e. Section 3(g) of the
Religious Institutions (Prevention of Misuse) Act,1988 is concerned, it
requires the premises or the religious institution i.e. the Kanchimatt to
have been used to promote disharmony or feeling of enmity or hatred or
ill-will between different religious, racial, language or religion groups or
castes or communities. Here again, the Section requires the use of the
premises or religious institution as a place or instrument for promoting
disharmony or hatred or ill-will. That the framers of law have not intended
an isolated event or utterance but made use of the term `use', which would
mean habitual, well-designed with continuity making use of the premises or
institution for repeated commission of the act in the usual manner and
therefore an isolated or casual utterance or reference made cannot be
construed to mean using the premises or the religious institution since the
term `use', at this juncture, has got wider connotation in the context of the
case. Neither the remarks alleged to have been uttered by the fourth
respondent could be termed as objectionable even considering that the said
respondent actually uttered the same nor at the stretch of imagination could
it be construed that the fourth respondent is using the ` religious
institution' to promote disharmony of feelings or hatred or illwill much less
between different religious, racial, language or regional groups or castes or
communities and therefore it could only be decided that the petitioner has
cast his imagination too far in contemplating that an offence could be made
out under this provision of law. Moreover, a reading of the remarks would
only mean that it has come out of the noble mind and with the honest intention
to promote harmony among different groups of the Hindu religion, particularly
those Associations which follow the footsteps of Dr.Ambedkar.

25. All these Sections could be brought into play only when factually
a case is made out on the face of the complaint particularly in the case in
hand pertaining to the statement alleged to have been made by the 4th
respondent. This statement is alleged to have been published in `Dina
Thanthi' and `Dina Malar' Tamil dailies, but the petitioner has not even made
the Editors and Publishers of these newspapers as parties to the proceedings,
who ought to have been impleaded as parties to the proceeding if the statement
is objectionable since the newspapers are not supposed to carry out such
objectionable or illegal utterances of, whomsoever is the maker of the
statement. From the very fact that the petitioner has not impleaded those
persons as parties to the proceedings would not only mean that they are not
objectionable statements but also the petitioner with some ill-motivated
designs and at the instigations of those who have some basic grievances or
hatred or ill-will or motive against the 4th respondent has come forward to
initiate these proceedings. Therefore, besides being the petitioner not
having the locus standi to question the validity of such paper publication
taking it as genuine and made with intent to injure the religious and caste
feelings, absolutely no case worth to be considered under the relevant
Sections of law has been put up by the petitioner and therefore this Court is
left with no choice but to arrive at the only irresistible conclusion that no
valid case has been put up by the petitioner nor is there any pith or
substance in the averments of the petition worth considering for any purpose
much less warranting granting of the relief sought for and it could be safely
concluded that the Court below has done nothing than what is required in the
circumstances of he case in rejecting the complaint filed by the petitioner by
its order dated 18.11.2002. Needless to mention that the above criminal
original petition equally becomes liable to be dismissed.

In result,
(i) the above Criminal Original Petition is dismissed.
(ii)Consequently, the alternative relief of the petitioner for fresh
investigation in respect of the petitioner's complaint dated 28.10.20 02 also
does not arise at all and the same is also dismissed.

Index: Yes
Internet: yes

Rao

To

1.The Inspector of Police,
Protection of Civil Right Unit,
Virudhunagar,
Virudhunagar District.


2.The District Superintendent of Police,
Virudhunagar District,
Virudhunagar.


3.The Director General of Police,
Office of the Director General of Police,
Chennai.

4.The Public Prosecutor,
High Court, Madras.