Suit For Mere Injunction Not Maintainable When Defendant Can Successfully Raise Cloud Over Plaintiff’s Title: SC [Read Judgment]
Read more at: http://www.livelaw.in/suit-for-mere-injunction-not-maintainable-when-defendant-can-successfully-raise-cloud-over-plaintiffs-title-sc-read-judgment/
അകാരണമായി ഡിഫക്ട് നോട്ട് ചെയ്യുകയും, ഡിവിഷൻ ബെഞ്ചിന്റെ 2015 (5) KHC 703 റിപ്പോർട്ടഡ് കേസിലെ വിധിന്യായം ഉദ്ധരിച്ച് ഡിഫക്ട് ഇല്ല എന്ന് അഭിഭാഷകൻ സമർത്ഥിച്ചിട്ടു കേസ് നമ്പർ ചെയ്യാൻ വിസമ്മതിച്ച ഹൈക്കോടതി ഉദ്യോഗസ്ഥനെതിരെ നടപടി എടുക്കാൻ ഉത്തരവ്. ജസ്റ്റീസ് വിനോദ് ചന്ദ്രൻ, ജസ്റ്റീസ് അശോക് മേനോൻ എന്നിവരടങ്ങിയ ഡിവിഷൻ ബഞ്ചാണ് നടപടിക്ക് ഉത്തരവിട്ടത്. രജിസ്ട്രാർ ജനറൽ ഈ വിഷയത്തിൽ അന്വേഷണം നടത്തി നടപടി രണ്ടാഴ്ചക്കകം എടുക്കണമെന്നും അത് കോടതിയെ അറിയിക്കണമെന്നും ഡിവിഷൻ ബഞ്ച്. ചില ഉദ്യോഗസ്ഥരുടെ നടപടികൾ പരിധി വിടുന്നു എന്നും കേട്ടതി വാക്കാൽ നിരീക്ഷിച്ചു. അഡ്വ. അനിൽ S രാജ് ഫയൽ ചെയ്ത ഹർജിയിലാണ് ഉത്തരവ്. ഹർജി നമ്പർ ചെയ്യാനും നാളെത്തന്നെ പോസ്റ്റ് ചെയ്യാനും ഉത്തരവിൽ പറയുന്നു.
*New Judgments in 2018 (3) KLT Part 12 (17.09.2018*)
*Civil P.C., 1908,* Order XXXIX Rule 1 – When mandatory injunction is for restoring the ante status quo position as on the date of the institution of the suit and when there is prima facie evidence, it would cast a duty on the court to preserve the property as such as on the date of its institution, hence granting of interim mandatory injunction for restoring ante status quo position of the suit property is the rule and not the exception.....1003
* *New Judgments in 2018 (3) KLT Part 12 (17.09.2018*)
*Civil P.C., 1908,* Order XXXIX Rule 1 – When mandatory injunction is for restoring the ante status quo position as on the date of the institution of the suit and when there is prima facie evidence, it would cast a duty on the court to preserve the property as such as on the date of its institution, hence granting of interim mandatory injunction for restoring ante status quo position of the suit property is the rule and not the exception.....1003
*Conservation of Paddy Land & Wet Land Act, 2008 (Kerala)* , Sections 5 & 27A (as amended by Act 29 of 2018) – If the properties are included in the data bank constituted under Act, 2008, despite the fact it is remaining as a garden land and included in the revenue records and in the BTR as ‘paddy field’, an application shall be filed before the Local Level Monitoring Committee to remove the property from the data bank.......1033.
..................Section 27A(3) First Proviso (as amended by Act 29 of 2018) – The burden of proving whether the land is naturally filled up or not is upon the applicant..................1033.
..................Section 27A(6) (as amended by Act 29 of 2018) – No permission under Section 27A is required for constructing a residential building having maximum area of 120 square metres in a maximum extent of 4.04 ares of land or a commercial building having a maximum area of 40 square metres in a maximum extent of 2.02 ares of land............................1033
...................Section 27A(13) (as amended by Act 29 of 2018) – As per sub-section (13) of Section 27A, any application received for the change of nature of unnotified land from the date of commencement of the Amendment Act, 2018 shall be considered and disposed of only in accordance with the provisions of the Act.....1033.
..................Section 27C (as amended by Act 29 of 2018) – The change of records can be made in accordance with the stipulations contained thereunder by filing an application before the Tahsildar in accordance with the provisions of Section 27C and re-assessment can be done by the Tahsildar in accordance with Section 6A of the Kerala Land Tax Act, 1961.......................1033.
*Constitution of India,* Articles 19(1)(a), 19(2) & 32 – A writer or an artist or any person in the creative sphere has to think in an unfettered way free from the shackles that may hinder his musings and ruminations....................1042 (SC).
..................Articles 19(1)(a), 19(2) & 32 – A writer or an author, while choosing a mode of expression, be it a novel or a novella, an epic or an anthology of poems, a play or a playlet, a short story or a long one, an essay or a statement of description or, for that matter, some other form, has the right to exercise his liberty to the fullest unless it falls foul of any prescribed law that is constitutionally valid........1042 (SC)
...................Articles 19(1)(a), 19(2) & 32 – Curtailmentof an author’s right to freedom of expression is a matter of serious concern......................1042 (SC)
...................Articles 19(1)(a), 19(2) & 32 – One may have a grave dislike towards a particular manner of expression but that would not warrant for issue of a mandamus from the Court to ban the book or the publication...............1042 (SC).
...................Articles 19(1)(a), 19(2) & 32 – One should never forget that only when creativity is not choked, it helps the society to be able to accept the thoughts and ideas of a free mind.......1042 (SC)...................Articles 19(1)(a), 19(2) & 32 – The culture of banning books directly impacts the free flow of ideas and is an affront to the freedom of speech, thought and expression.........................1042 (SC).
..................Articles 19(1)(a), 19(2) & 32 – The freedomenjoyed by an author is not absolute, but before imposition of any restriction, the duty of the Court is to see whether there is really something that comes within the ambit and sweep of Article 19(2) of the Constitution..........1042 (SC)
*Contempt of Courts Act, 1971* , Sections 9 & 16 – A Judge of Court of Record is not liable to be punished for committing a contempt of his own court.............1087 (Uttarakhand)
*Contract Act, 1872* – Tender – Performance Guarantee – The tenderer having accepted the conditions of tender and quoted for the same, could not have, in any manner, wriggled out of those conditions. ........................1076
*Criminal P.C. 1973,* Sections 41, 91, 102, 157, 160, 161, 165 & 173 – A police officer cannot exercise the powers under Sections 41,91,102,157,160, 161,165 and 173 unless they are conferred on him by the Code of Criminal Procedure or any other statute. .....1023
*Delhi Special Police Establishment Act, 1946* , Sections 6 & 5 – When there is no power for the C.B.I. to investigate, without the consent of the State Government, there cannot be any power to conduct a preliminary enquiry also............1023
*Hindu Marriage Act, 1955* , Section 9 – Withdrawal of the wife from the society of the husband, on demand of separate residence to avoid members of the husband’s family, is not a reasonable cause, unless it is proved that the family members in the matrimonial home had treated her with cruelty ........................1060
*Land Utilization Order, 1967 (Kerala)* , Clause 6(2) – Conservation of Paddy Land & Wet Land Act, 2008 (Kerala), Section 27A (as amended by Act 29 of 2018) – What is taken away from Clause 6(2) of Kerala Land Utilization Order, 1967 is the power vested thereunder with the Revenue Divisional Officer to tackle the application for other purposes prescribed thereunder other than other agricultural crops..........................1033
*Maintenance and Welfare of Parents and Senior Citizens Act, 2007* , Section 23 – It cannot be laid down as a universal proposition that a gift deed is animated by enduring love and that an allegation on the donor’s part that the love is lost suffices to cancel it..........1082
*Minor Mineral Concession Rules, 2015 (Kerala),* Rule 32(3) – Land Conservancy Act, 1957 (Kerala), Section 6(1) & (2) – Whether seigniorage is to be remitted by the contractor when the excavation and removal of earth is part of the Government contract..............1063
*Motor Vehicles Taxation Act, 1976 (Kerala)* – S. 52 – The nature of seats; whether it is push back or straight back is not a speci-fication of the manufacturer nor prescribed by the statute or rules and is exclusively the volition of the owner who builds the body – The taxation has to be on verification of the nature of the seats actually fitted..........................1066
*Narcotic Drugs and Psychotropic Substances Act, 1985* , Section 67 – A confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court.....1027 (SC)
...................Section 67 – Certain additional features must be established before a statement under Section 67 could be relied upon against a co-accused ...................1027 (SC)
*Passport Manual, 2010* , Chapter 9 Para 4 – The Paragraph 4 of the Guideline cannot compel a well-meaning parent to perform something impossible: getting consent from the other estranged, unwilling, or unyielding parent.....1057
*Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002* , Section 14 – The Chief Judicial Magistrate’s Court can entertain no plea of a tenant because the jurisdiction of the Chief Judicial Magistrate’s Court under Section 14 is limited.............1071
*Special Marriage Act, 1954,* Section 27(1)(b) & (d) – If a person gets infected with a disease and loses his capability of sexual act, it does not amount to cruelty. .........1080
*University Grants Commission (Minimum Qualifi-cations for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 –* When the prescription is that the qualification shall be in “the” relevant subject, then only that subject can be reckoned, whereas when the qualifications are prescribed to be in a relevant subject, then every such relevant subject can also be reckoned, and taken into account while selection is made.........1008 , Sections 5 & 27A (as amended by Act 29 of 2018) – If the properties are included in the data bank constituted under Act, 2008, despite the fact it is remaining as a garden land and included in the revenue records and in the BTR as ‘paddy field’, an application shall be filed before the Local Level Monitoring Committee to remove the property from the data bank.......1033.
..................Section 27A(3) First Proviso (as amended by Act 29 of 2018) – The burden of proving whether the land is naturally filled up or not is upon the applicant..................1033.
..................Section 27A(6) (as amended by Act 29 of 2018) – No permission under Section 27A is required for constructing a residential building having maximum area of 120 square metres in a maximum extent of 4.04 ares of land or a commercial building having a maximum area of 40 square metres in a maximum extent of 2.02 ares of land............................1033
...................Section 27A(13) (as amended by Act 29 of 2018) – As per sub-section (13) of Section 27A, any application received for the change of nature of unnotified land from the date of commencement of the Amendment Act, 2018 shall be considered and disposed of only in accordance with the provisions of the Act.....1033.
..................Section 27C (as amended by Act 29 of 2018) – The change of records can be made in accordance with the stipulations contained thereunder by filing an application before the Tahsildar in accordance with the provisions of Section 27C and re-assessment can be done by the Tahsildar in accordance with Section 6A of the Kerala Land Tax Act, 1961.......................1033.
*Constitution of India,* Articles 19(1)(a), 19(2) & 32 – A writer or an artist or any person in the creative sphere has to think in an unfettered way free from the shackles that may hinder his musings and ruminations....................1042 (SC).
..................Articles 19(1)(a), 19(2) & 32 – A writer or an author, while choosing a mode of expression, be it a novel or a novella, an epic or an anthology of poems, a play or a playlet, a short story or a long one, an essay or a statement of description or, for that matter, some other form, has the right to exercise his liberty to the fullest unless it falls foul of any prescribed law that is constitutionally valid........1042 (SC)
...................Articles 19(1)(a), 19(2) & 32 – Curtailmentof an author’s right to freedom of expression is a matter of serious concern......................1042 (SC)
...................Articles 19(1)(a), 19(2) & 32 – One may have a grave dislike towards a particular manner of expression but that would not warrant for issue of a mandamus from the Court to ban the book or the publication...............1042 (SC).
...................Articles 19(1)(a), 19(2) & 32 – One should never forget that only when creativity is not choked, it helps the society to be able to accept the thoughts and ideas of a free mind.......1042 (SC)...................Articles 19(1)(a), 19(2) & 32 – The culture of banning books directly impacts the free flow of ideas and is an affront to the freedom of speech, thought and expression.........................1042 (SC).
..................Articles 19(1)(a), 19(2) & 32 – The freedomenjoyed by an author is not absolute, but before imposition of any restriction, the duty of the Court is to see whether there is really something that comes within the ambit and sweep of Article 19(2) of the Constitution..........1042 (SC)
*Contempt of Courts Act, 1971* , Sections 9 & 16 – A Judge of Court of Record is not liable to be punished for committing a contempt of his own court.............1087 (Uttarakhand)
*Contract Act, 1872* – Tender – Performance Guarantee – The tenderer having accepted the conditions of tender and quoted for the same, could not have, in any manner, wriggled out of those conditions. ........................1076
*Criminal P.C. 1973,* Sections 41, 91, 102, 157, 160, 161, 165 & 173 – A police officer cannot exercise the powers under Sections 41,91,102,157,160, 161,165 and 173 unless they are conferred on him by the Code of Criminal Procedure or any other statute. .....1023
*Delhi Special Police Establishment Act, 1946* , Sections 6 & 5 – When there is no power for the C.B.I. to investigate, without the consent of the State Government, there cannot be any power to conduct a preliminary enquiry also............1023
*Hindu Marriage Act, 1955* , Section 9 – Withdrawal of the wife from the society of the husband, on demand of separate residence to avoid members of the husband’s family, is not a reasonable cause, unless it is proved that the family members in the matrimonial home had treated her with cruelty ........................1060
*Land Utilization Order, 1967 (Kerala)* , Clause 6(2) – Conservation of Paddy Land & Wet Land Act, 2008 (Kerala), Section 27A (as amended by Act 29 of 2018) – What is taken away from Clause 6(2) of Kerala Land Utilization Order, 1967 is the power vested thereunder with the Revenue Divisional Officer to tackle the application for other purposes prescribed thereunder other than other agricultural crops..........................1033
*Maintenance and Welfare of Parents and Senior Citizens Act, 2007* , Section 23 – It cannot be laid down as a universal proposition that a gift deed is animated by enduring love and that an allegation on the donor’s part that the love is lost suffices to cancel it..........1082
*Minor Mineral Concession Rules, 2015 (Kerala),* Rule 32(3) – Land Conservancy Act, 1957 (Kerala), Section 6(1) & (2) – Whether seigniorage is to be remitted by the contractor when the excavation and removal of earth is part of the Government contract..............1063
*Motor Vehicles Taxation Act, 1976 (Kerala)* – S. 52 – The nature of seats; whether it is push back or straight back is not a speci-fication of the manufacturer nor prescribed by the statute or rules and is exclusively the volition of the owner who builds the body – The taxation has to be on verification of the nature of the seats actually fitted..........................1066
*Narcotic Drugs and Psychotropic Substances Act, 1985* , Section 67 – A confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court.....1027 (SC)
...................Section 67 – Certain additional features must be established before a statement under Section 67 could be relied upon against a co-accused ...................1027 (SC)
*Passport Manual, 2010* , Chapter 9 Para 4 – The Paragraph 4 of the Guideline cannot compel a well-meaning parent to perform something impossible: getting consent from the other estranged, unwilling, or unyielding parent.....1057
*Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002* , Section 14 – The Chief Judicial Magistrate’s Court can entertain no plea of a tenant because the jurisdiction of the Chief Judicial Magistrate’s Court under Section 14 is limited.............1071
*Special Marriage Act, 1954,* Section 27(1)(b) & (d) – If a person gets infected with a disease and loses his capability of sexual act, it does not amount to cruelty. .........1080
*University Grants Commission (Minimum Qualifi-cations for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 –* When the prescription is that the qualification shall be in “the” relevant subject, then only that subject can be reckoned, whereas when the qualifications are prescribed to be in a relevant subject, then every such relevant subject can also be reckoned, and taken into account while selection is made.........1008
The *Delhi High Court* has held that availability of information with another public authority is not a ground to deny the information sought under the Right to Information Act, 2005 (RTI Act).
*Read more at* https://barandbench.com/availability-information-public-authority-rti-delhi-high-court/
