free legal guide 1969

  Execution Proceedings (Ss.47, 60, 122 Or.21 Rs.11, 98 & Or.11 R.14):- Executive Proceedings-Executing court must dispose of executive proceedings within six months from date of filing which may be extended only by recording reasons in writing for such delay. This would mean that every effort should be made to dispose of execution petition within said time-limit and executing court should have reasons for not being able to dispose of execution petition. Executing court is duty-bound to record reasons in writing when it is unable to dispose of matter within six months (Bhoj Raj Garg vs Goyal Education & Welfare Society: (2025) 9 SCC-618.

  Res Sub Judice:- Section 10 CPC relates to Res sub judice,a matter which is pending a judicial adjudication. Res Judicata and Res Sub Judice are two fundamental legal doctrines under civil procedure law designed to prevent the abuse of the judicial system and ensure the efficient administration of justice. The core distinction is that Res Judicata applies to a matter that has already been finally decided , whereas Res Sub Judice applies to a matter that is currently pending trial .   Comparison Table   Feature Res Sub Judice Res Judicata Literal Meaning "Under judgment" or under judicial consideration. "A matter judged" or a thing already decided. Legal Provision Section 10 of the CPC . Section 11 of the CPC. Status of Former Suit The previous suit must be pending in a court. The previous suit must be finally decided. ...

  Res Judicata:Applicability:- Doctrine of res judicata is applicable even to Writ jurisdiction exercised by Superior Courts (Shiv Chander More vs Lt. Governor (2014) 11 SCC-744.A Constitution Bench of Supreme Court of India has considered the applicability of rule of res judicata in Writ proceedings under Article 32 of the Constitution in Daryao & ors vs State of UP & ors (AIR 1961 SC-1457 ).In Forward Construction Co. vs Prabhat Mandal (1986) 1 SCC-100 , the Apex Court   held that the principle would apply to Public Interest Litigation   provided it was a bona fide litigation. Res judicata applicable on Execution proceedings ( Dipali Biswas vs Nirmalendu Mukherjee,2021 SCC Online SC-869 ).The principle of res judicata   would apply in different proceedings arising out of the same course of action but would also apply in different stages of the same proceedings (Bhanu Kumar Jain Vs Archana Kumar & anr (2005) 1 SCC-787 ).  

  Res Judicata-Principle-Section 11 C.P.C.:- The doctrine of Res Judicata (meaning "a matter judged") is a core legal principle stating that once a final judgment has been handed down on a case by a competent court, the same parties cannot litigate that exact matter again. This doctrine of res judicata is attracted not only in separate subsequent proceedings but also at the subsequent stage of same proceedings. Such a binding decision cannot be ignored even on principle of per incuriam because that principle applies to precedents and not to doctrine of res judicata (Ramachandra Rao vs Nagabhushana Rao : 2024) 17 SCC-361).   Pre-requisites of making   Res Judicata binding are: 1.       There must be a final judgment; 2.       The judgment must be on the merits; 3.       The claims must be the same in the first and second suits; 4.       The parties in the se...

  Res Judicata :-                   Re Judicata is a plea available in Civil proceedings in accordance with Section 11 of Code of Civil Procedure. It is a doctrine applied to give finality to ‘lis’ in original or appellate proceedings. As per the Law Lexicon “ res adjudicate” means “A matter adjudged; a thing judicially acted upon or decided; a thing or matter settled by judgment; a thing definitely settled by judicial decision, the thing adjudged”. In Corpus Juris, it has been stated,” res judicata is a rule of universal law pervading every well regulated system of jurisprudence and is put upon two grounds, embodied in various maxims of the common law; the one, public policy and necessity, which makes it to the interest of the state that here should be an end to litigation, the other, the hardship to the individual that he should not be vexed twice for the same cause”.    ...

  In a Motor Accident Claim, Loss suffered by Parents cannot be assessed with arithmetical precision:- The Supreme Court emphasized that determining compensation for a child's death under the Motor Vehicles Act must prioritize fairness and solace over rigid mathematical precision. "The loss suffered by the parents of the deceased cannot be measured with arithmetical precision, and the compensation awarded, viewed holistically, cannot be said to transgress the bounds of 'just compensation' under the MV Act,"  the Court observed. Akash Kumar, a CA Final student, died at 3:00 a.m. when his car struck an unlit, unreflective truck parked negligently on a dark Delhi road. The Tribunal awarded ₹81.21 lakh after finding the truck driver negligent, and following the High Court's affirmation, both the insurer and the claimants appealed to the Supreme Court seeking a reduction and enhancement of the compensation, respectively. Rejecting the insurer’s claim of e...

  Last Will may prevail over earlier Will:- In case of dispute between earlier and subsequent parts of a Will,the subsequent part of the Will will prevails ( Kaivelikkal Ambunhi & ors vs H.Ganesh Bhandary,(1995) 5 SCC-444 & Uma Devi Nambiar & ors vs TC Sidhan,( 2004) 2 SCC-321. In case of “ Jasbir Singh vs Jaspal Singh & ors ”,2016 SCC Online P & H-3416,it   was held that the last will would prevail and the previous Will automatically deemed to have been cancelled, even in the absence of any specific clause.

  Insurance Company not liable to pay compensation:- Insurance Company not liable to pay compensation if the vehicle carrying passengers beyond   the sitting capacity. In the case of   “National Insurance Co.Ltd vs Anjana Shyam & ors’ (2007) 7 SCC-445   the vehicle had only the capacity to carry 42 passengers but at the time of accident but  there were 70 passengers in the bus. So the Insurance Company not compelled to meet the award   beyond the contract of insurance itself. If the premium not paid to the Insurance Company, the Company is not liable to pay compensation 2008 SCC Online Guj-140.

  Testimony of Judge Witness in Criminal Case:- Karnataka High Court Declines Request for In-Person Testimony of Judge Witness in Criminal Case:- In a case of “Mahadev And State of Karnataka” (Criminal Petition No 200953/2023 dt. 11-08-2023/HON’BLE Justice Venkatesh Naik T). On June 27, 2017, when the Principal Civil Judge and JMFC in Vijayapura was performing her official duties, the accused entered the room with the intention to argue, verbally abused her. The   police initiated legal proceedings against the accused and submitted a charge sheet containing charges under sections 353, 448, 504, and 506 of the IPC. The petition requesting the personal attendance of the Principal Civil Judge for the purpose of cross-examination as a witness in his case, rather than utilizing video conferencing, has been rejected by the Karnataka High Court. The Court has held that the   panel made reference to the exception in Section 275(1) of the CrPC, which states that testimony ...

  Inheritance and Survivorship:-                                                  Prior to 1956, Hindu property inheritance in India was governed by two distinct legal schools. The Dayabhaga system prevailed exclusively in Bengal, while the Mitakshara system applied elsewhere. These two traditional schools differed fundamentally based on their core guiding principles. Dayabhaga relied strictly on the doctrine of religious efficacy to determine property rights. Conversely, the Mitakshara school lacked a single, definitive guiding principle for inheritance. Mitakshara instead fluctuated between blood relationship and religious efficacy to settle claims. Furthermore, the Mitakshara school recognised two distinct modes of property devolution. It applied the rules of survivorship exclusively to joint family prope...

  Scientific and Legal Dimensions of DNA Technology             DNA fingerprinting, profiling, or typing is widely considered the most significant contribution of science and technology in the twentieth century. This breakthrough is anticipated to become the universal identification technique of the twenty-first century. This emerging methodology has completely revolutionized the entire world by distinguishing every individual from another. Consequently, it plays a momentous role in both criminal and civil justice delivery systems today. It serves as an invaluable tool for the accurate identification of ancient or fragmented skeletal remains. Medical professionals also rely heavily on this technology for the detection of early onset diseases. Furthermore, it allows for the proactive mapping and diagnosis of various severe inherited disorders. This high-utility identification power stems directly from the biological blueprint fo...

  Guarantor has the liability to pay the loan amount taken by the principal debotor:- Recovery of debt from guarantor-Held, guarantee being a continuing guarantee,so long as the principal debt remained due and payable,the guarantor also remained liable-The suit was therefore not barred by limitation-However,liability of guarantor cannot exceed that of the principal debtor,even thought he guarantee documents mentioned so,since guarantor is only guaranteeing debt due by the principal debtor-Principal debtor being liable to pay interest 13.5% in respect of term loan facility   and 14% p.a. in respect of cash credit facility (B.G.Vasantha vs Corporation Bank<amangalore & anr,(2005) 10 SCC-215.                            Liability of guarantor is co-extensive with that of principal debtor unless it is explicitly exluded by the contract-Further held,...

  Sentence less than Minimum Sentence:-                    In “ State of MP vs Vikram Das ” reported in (2019) 4 SCC-125,the Supreme Court has held that awarding sentence less than the minimum sentence is impressibility .                    In “ State v. Ratan Lal Arora” : (2004) 4 SCC-590, the Supreme  Court of India said that in cases where an enactment enacted after the Probation Act prescribes minimum sentence of imprisonment, the provisions of the Probation Act cannot be invoked.                  

                 In “ Sharad Birdichand Sarda vs State of Maharashtra” :AIR 1984 SC-1622,the SC elaborated the five golden principles of circumstantial evidence laid down in Hanumant Vs.State of MP:AIR 1952 SC-343 which has been strictly abided by the SC itself in various leading cases and therefore are very important. 1.      The circumstances from which the conclusion of guilt is to be drawn should be fully established. 2.      The facts so established should be consistent with the hypothesis of guilt. 3.      The circumstances should be of a conclusive nature and tendency. 4.      They should exlcude every possible hypothesis except the one to be proved. 5.      There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that...

  Essential Characteristics of a Will:- 1.      There must be a legal declaration; 2.      Such declaration must be with respect to the property of the testator & 3.      The declaration must be intended to operate after the death of   the testator. Criteria for Proper Execution of Will:- 1.      The testator must have a disposing mind free from all extraneous influences with sound mental mind; 2.      The testator must have a mental capacity to make a valid will until contrary is proved; 3.      The Will should be executed in accordance with S.63 ISA read with Ss.67/68 of IEA; 4.      The onus of proof of the Will is on the propounder of the Will. 5.      If any suspicious circumstances arises,required to be removed by the propounder etc.

  Applicability of CPC & Limitation Act in Writ Proceedings:-   The issue concerning applicability of the provisions of the CPC in the writ proceedings is no longer res integra in view clear pronouncement made by the Supreme Court in “ Puran Singh and Others v State of Punjab and Others” reported in (1996) 2 SCC-205 , wherein the Supreme Court was dealing with an issue as to whether the provisions contained under Order 22 of the CPC are applicable to proceedings under Article 226 & 227 of the Constitution of India. The question as to whether provisions of the Act, 1963 would apply in proceedings under Article 226 of the Constitution of India is also no longer res integra in view of the law laid down by the Supreme Court in “Smt. Sudama Devi v Commissioner and others ” reported in (1983) 2 SCC-1.  

  Eve-Teasing  :-                                                                        Site: freelegalguide1969.blogspot.com Eve-Teasing is a euphemism, a conduct which attracts penal action but it is seen, only in one State, a Statute has been enacted, that is State of Tamil Nadu to contain the same, the consequence of which may at times drastic. Eve-teasing led to the death of a woman in the year 1998 in the State of Tamil Nadu which led the Government bringing an ordinance, namely, the Tami Nadu Prohibition of Eve-Teasing Ordinance, 1998, which later became an Act, namely, the Tamil Nadu Prohibition of Eve-Teasing Act, 1998 . The meaning of the expression ‘ honourable acquittal’ came up for consideration before this Court in Management of Reserve Bank of India, New Delhi v. Bhopal Singh Pa...

Natural Justice :- Natural Justice-Applicability- It is not possible to lay down rigid rules as to when the principles of natural justice are to apply: nor as to their scope and extent. Everything depends on the subject-matter, the application of principles of natural justice, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject-matter of the case. In the application of the concept of fair play there must be real flexibility. There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter to be dealt with, and so forth. The basic requirement is that there must be fair play in action and the decision must be arrived at in a just and objective manner ...

  Ossification test for determination of victim's Age:-           The ossification test is the test that determines the age on the " degree of fusion of bone" by taking X-ray of  bones of hands.Bone age is an indicator of the skeletal and biological maturity of an individual which assists in the determination of age.The most common method used for calculation of the bone age is radiography of the hand and wrist until the age of 18 years. However,it must be noted that the ossification test varies slightly based on individual characteristics,therefore the ossification test though is relevant however it cannot be called solely conclusive.           Section 68 (1) read with Rule 12(3) of the Juvenile Justice (Care & Protection of Children) Rules,2007 provides the legislative sanction for conduct of Ossification Test  to determine age of the victim in the absence of other age proof certificate.    ...

  Medical Negligence:-                The term “ negligence” has been defined in Halsbury Laws of England (Fourth Edition) para 34 and as settled in Kusum Sharma v. Batra Hospital and Medical Research Centre ((2010) 3 SCC 480) as under: “45. According to Halsbury's Laws of England, 4th Edn., Vol. 26 pp. 17-18, the definition of negligence is as under: “22. Negligence.—Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.” ...