Hon’ble Supreme Court of India observed as under
“…It is no doubt well-settled that the right of appeal is a substantive right and it gets vested in a litigant no sooner the lis is commenced in the Court of the first instance, and such right or any remedy in respect thereof will not be affected by any repeal of the enactment conferring such right unless the repealing enactment either expressly or by necessary implication takes away such right or remedy in respect thereof."
Showing posts with label 1979. Show all posts
Showing posts with label 1979. Show all posts
Apr 20, 2011
Jul 18, 2010
Union of India vs. Prafulla Kumar Samal, (1979) 3 SCC 4
Supreme Court observed “( 1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
( 2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
( 4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.”
( 2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
( 4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.”
Feb 20, 2010
Bega Begum v. Abdul Ahad Khan AIR 1979 SC 272
where it was held that the expression 'reasonable requirement' in Section 11(h) of the Jammu & Kashmir Houses and Shops Rent Control Act, 1966, undoubtedly postulates that there must be an element of need as opposed to a mere desire or wish.
Feb 10, 2010
SANTRAM v. RAJINDER LAL 1979 SC (1) RCJ 13
Landlord filed a petition for eviction of the appellant-tenant under S.13(2) (ii) (b) of the East Punjab Urban Rent Restriction Act, 1949, as applied to Himachal Pradesh on the ground that the premises were being used for a purpose other than the one for which they were let out.
There is no case of written consent put forward by the tenant. But he contested the landlord's claim by asserting that there was no specific commercial purpose inscribed in the demise and, therefore, it was not possible to postulate a diversion of purpose. Secondly, he urged that, even assuming that the letting was for a commercial purpose, the fact that he had cooked his food or stayed at night in the rear portion of the small shop did not offend against S. 13(2)(ii)(b) of the Act.
The lease deed, disclosed no purpose; but inferentially it has been held by the High Court that the lease being of a shop the purpose must have been commercial. Possible; not necessarily sure. The actual life situations and urban conditions of India, especially where poor tradesmen like cobblers, candle-stick makers, cycle repairers and Tanduri bakers, take out small spaces on rent, do not warrant an irresistible inference that if the lease is of a shop the purpose of the lease must be commercial.
You struggle to make a small income and work late into the right from early in the morning and, during intervals, rest your bones in the same place, drawing down the shutters of the shop for a while. The primary purpose is to ply a petty trade, the secondary, but necessary incident, is to sleep in the same place since you can hardly afford anything but a pavement. In this view, the appeal is allowed with costs. The tenant shall not be ejected.
There is no case of written consent put forward by the tenant. But he contested the landlord's claim by asserting that there was no specific commercial purpose inscribed in the demise and, therefore, it was not possible to postulate a diversion of purpose. Secondly, he urged that, even assuming that the letting was for a commercial purpose, the fact that he had cooked his food or stayed at night in the rear portion of the small shop did not offend against S. 13(2)(ii)(b) of the Act.
The lease deed, disclosed no purpose; but inferentially it has been held by the High Court that the lease being of a shop the purpose must have been commercial. Possible; not necessarily sure. The actual life situations and urban conditions of India, especially where poor tradesmen like cobblers, candle-stick makers, cycle repairers and Tanduri bakers, take out small spaces on rent, do not warrant an irresistible inference that if the lease is of a shop the purpose of the lease must be commercial.
You struggle to make a small income and work late into the right from early in the morning and, during intervals, rest your bones in the same place, drawing down the shutters of the shop for a while. The primary purpose is to ply a petty trade, the secondary, but necessary incident, is to sleep in the same place since you can hardly afford anything but a pavement. In this view, the appeal is allowed with costs. The tenant shall not be ejected.
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