COURT FEE , JURISDICTION AND LIMITATION IN SUIT FOR PARTITION, SUIT FOR INJUNCTION AND SUIT FOR EASEMENT

 

If police fail to register your complant, what to do ?

 

Charge Sheet/Final Report -Points to be kept in mind while filing and scrutiny

 

No Need To File Separate Final Decree Proceedings In Partition Suit; Trial Courts Should Proceed Suo Motu Soon After Passing Preliminary Decree: Supreme Court

 Case: Kattukandi Edathil Krishnan vs Kattukandi Edathil Valsan

Coram: Justices S. Abdul Nazeer and Vikram Nath

Case No.: CA 6406­-6407 OF 2010

Court Observation: “We direct the Trial Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary decree for partition and separate possession of the property, suo motu and without requiring initiation of any separate proceedings.”

“This practice is to be discouraged as there is no point in declaring the rights of the parties in one proceedings and requiring initiation of separate proceedings for quantification and ascertainment of the relief. This will only delay the realization of the fruits of the decree”

A preliminary decree declares the rights or shares of the parties to the partition. Once the shares have been declared and a further inquiry still remains to be done for actually partitioning the property and placing the parties in separate possession of the divided property, then such inquiry shall be held and pursuant to the result of further inquiry, a final decree shall be passed. Thus, fundamentally, the distinction between preliminary and final decree is that:­ a preliminary decree merely declares the rights and shares of the parties and leaves room for some further inquiry to be held and conducted pursuant to the directions made in preliminary decree and after the inquiry having been conducted and rights of the parties being finally determined, a final decree incorporating such determination needs to be drawn up.

“Since there is no limitation for initiating final decree proceedings, the litigants tend to take their own sweet time for initiating final decree proceedings. In some States, the courts after passing a preliminary decree adjourn the suit sine die with liberty to the parties for applying for final decree proceedings like the present case. In some other States, a fresh final decree proceedings have to be initiated under Order XX Rule 18. However, this practice is to be discouraged as there is no point in declaring the rights of the parties in one proceedings and requiring initiation of separate proceedings for quantification and ascertainment of the relief. This will only delay the realization of the fruits of the decree.”

We are of the view that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. After passing of the preliminary decree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC. The courts should not adjourn the matter sine die, as has been done in the instant case. There is also no need to file a separate final decree proceedings. In the same suit, the court should allow the concerned party to file an appropriate application for drawing up the final decree. Needless to state that the suit comes to an end only when a final decree is drawn. Therefore, we direct the Trial Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary decree for partition and separate possession of the property, suo motu and without requiring initiation of any separate proceedings.

The trial of offence under Section 16 (1) (a) punishable under Section 27 (d) of the Drugs and Cosmetics Act remains with the Magistrate's Court

 Telangana High Court

M/S. Gaba Pharmaceutical Pvt Ltd. ... vs Union Of India Rep., By Asst., ... on 4 June, 2021

Bench: G Sri Devi

              HONOURABLE JUSTICE G. SRI DEVI

                       CRL.P.No.6949 of 2016

ORDER:

This Criminal Petition is filed, under Section 482 of the Code of Criminal Procedure, by the petitioners/A-1 to A-4 seeking to set aside the docket order, dated 19.04.2016, passed in D.S.C.No.2 of 2013 on the file of the I-Additional Metropolitan Sessions Judge, Hyderabad and consequently direct the I-Additional Metropolitan Sessions Judge, Hyderabad, to send back the said case to the Court of the VII-Additional Chief Metropolitan Magistrate, Hyderabad, to conduct trial as Calendar Case.

Heard Sri Gangaiah Naidu, learned Senior Counsel appearing on behalf of Ms.G.Bhanu Priya, learned Counsel for the petitioners and Ms. G.Anjali Agarwal, learned Counsel appearing for the respondent and also perused the record.

Learned Senior Counsel appearing for the petitioners mainly contended that the docket order, dated 19.04.2016, is ex-facie illegal and contrary to the orders passed by this Court in Criminal Petition No.2178 of 2015, dated 14.08.2015, wherein this Court remitted the said case to the Sessions Court with a specific direction to decide whether the alleged offence comes under Section 27 (a) or (c) of the Drugs and Cosmetics Act (for short "the Act") or both for retaining by him, or if it comes under Section 27 (b) and (d) to send back to the Magistrate. The learned Sessions Judge passed the impugned order stating that there is sufficient material to commence trial before the Sessions Court with alternative charge for the offence under section 27 (c) of the Act. The learned Sessions Judge ought to have assigned reasons how Section 27 (c) of the Act attracts, but he failed to assign any reason. He further submits that the material filed in this case, do indicate that the offence said to have been committed is under section 16 (1) (a) of the Act and the alleged lapse pointed out is that the subject drug is 'not of standard quality' in which event the penal Section 27 (d) of the Act would attract. In support of his contention, he relied on the judgment of the Kerala High Court passed in Criminal Revision No.1477 of 2013, wherein the High Court after considering all the provisions including the amended provisions, ruled that it is only the Magistrate vested with the jurisdiction to try the offences under 'not of standard quality' and the penal Section is 27 (d) of the Act. Therefore, it is made crystal clear that the allegation of 'not of standard quality' is triable by Magistrate only, even after amendment. Therefore, prayed to allow the Criminal Petition.

Learned Counsel appearing for the respondent would submit that certain offences under the Drugs and Cosmetics Act, 1940 were amended and made triable by the Court of Sessions. She also submits that the Additional District Judge is designated to try various offences under the Act and the petitioners cannot claim such relief in the present petition, since no other Court is competent to try those offences punishable under various provisions of the Act. She further submits that as per the judgment of the Madhya Pradesh High Court in M/s. Kalpataru Medicose Thru Narayana Prasad Sahu v. Food and Drug Administration Thru. Ashok Goyal1 the Criminal Petition is liable to be dismissed.

Before proceedings further it would be useful to refer to Section 16 of the Act, which deals with the standard quality.

"16. Standards of quality.- (1) For the purposes of this Chapter, the expression "standard quality" means -

(a) In relation to a drug, that the drug complies with the standard set out in the Second Schedule, and

(b) In relation to a cosmetic, that the cosmetic complies with such standards as may be prescribed."

As seen from the complaint filed by the respondent, the Test Report dated 20.03.2012 issued by the Government Analyst, CDL, Kolkata reveals that the sample was declared as "Not of standard quality" as the sample does not confirm to claim with respect to "Niacinamide Content". Section 16(1)(a) of the Act stipulates that drugs that comply with the standards set out in the Second Schedule shall be certified to be of "standard quality" . The penal provision for contravention of section 16 (1) (a) of the Act is punishable under section 27 of the Act, which reads as under:

"27. Penalty for manufacture, sale, etc., of drugs in contravention of this Chapter whoever, himself or by any other person on his behalf, manufactures for sale or for M.C.C.No.11940 of 2016, dated 10.01.2017 distribution, or sells, or stocks or exhibits or offers for sale or distributes-

(a) any drug deemed to be adulterated under Section 17A or spurious under Section 17B or which when used by any person for or in the diagnosis, treatment, mitigation, or prevention of any disease or disorder is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the meaning of Section 320 of the Indian Penal Code (45 of 1860), solely on account of such drug being adulterated or spurious or not of standard quality, as the case may be, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to a term of life and with fine which shall not be less than ten thousand rupees:

(b) any drug--

(i) deemed to be adulterated under Section 17A, but not being a drug referred to in clause (a), or

(ii) without a valid licence as required under clause (c) of Section 18, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than five thousand rupees;

Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than one year and of fine of less than five thousand rupees;

(c) any drug deemed to be spurious under Section 17B, but not being a drug referred to in clause (a) shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to five years and with fine which shall not be less than five thousand rupees:

Provided that the Court may, for any adequate and special reasons, to be recorded in the judgment, impose a sentence of imprisonment for a term of less than three years but not less than one year:

(d) any drug, other than a drug referred to in clause (a) or clause (b) or clause (c), in contravention of any other provision of this Chapter or any rule made thereunder, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to two years and with fine:

Provided that the Court may, for any adequate and special reasons, to be recorded in the judgment imposes a sentence of imprisonment for a term of less than one year."

Admittedly, the allegations made in the complaint itself would come neither under adulterated drug nor spurious drug and it is only "not of standard quality". Contravention under Section 18

(a) (i) of the Act, for having manufactured and distributed the "Not of Standard Quality" Drugs is punishable under Section 27 (d) of the said Act. Therefore, the offence committed by the petitioners is only under Section 27 (d) of the Act but not under Section 27 (a) or 27 (c) of the Act.

As per Section 36AB of the Act, the Special Court is constituted only for trying the offences relating to adulterated drugs and spurious drugs and Section 27 (d) of the Act is conspicuously excluded from the amendment conferring jurisdiction to Special Courts. Therefore, the trial of offence under Section 16 (1) (a) punishable under Section 27 (d) of the Act still remains with the Magistrate's Court. In the absence of vesting any jurisdiction to try the offence under Section 27 (d) of the Act, the learned Sessions Judge is incompetent to try the case. Therefore, this Court is of the view that the learned VII Additional Chief Metropolitan Magistrate, Hyderabad, alone is competent to try the offence punishable under Section 27 (d) of the Act. The learned I Additional Metropolitan Sessions Judge, Hyderabad, instead of following the procedure under Section 228 of Cr.P.C. erroneously assumed jurisdiction and passed the impugned order.

For the aforesaid reasons and having regard to the facts and circumstances of the case, the Criminal Petition is allowed and the docket order dated, 19.04.2016 passed in D.SC No.2 of 2013 on the file of the I-Additional Metropolitan Sessions Judge, Hyderabad, is hereby set aside. Further, the learned I-Additional Metropolitan Sessions Judge, Hyderabad, is directed to send back the records in D.SC No.2 of 2013 to the Court of the VII-Additional Chief Metropolitan Magistrate, Hyderabad, to conduct trial as Calendar Case.

As a sequel thereto, Miscellaneous Petitions, if any, pending in this Criminal Petition, shall stand closed.

_____________________ JUSTICE G. SRI DEVI 04.06.2021 Gsn/gkv

How to caluculate Court Fee

 

Rights of Citizens-Abuse and misuse of powers by police

 

Important Provisions of Stamp Act and Impounding of Documents

 

No application is needed for the return of the unmarked documents

 

 

Dis.No.                /Admn/2017                                       Dt. 07-12-2017.

 

 

                                            C I R C U L A R

 

Sub:- Courts – Civil – Return of un-filed documents - Certain instructions issued.

 

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                It is brought to the notice of the undersigned that, the parties in civil cases are filing documents for the purpose of evidence in various suits or other proceedings and out of them certain documents remain unmarked for various reasons and later the parties are approaching the Courts for return of those unfiled/un-marked documents filed in such cases, and certain Courts are insisting for filing petitions for return of documents and also passing orders for return on substitution of certified copies. Thereafter, the litigant parties are filing copy applications for issue of certified copies of those documents to enable them to substitute the certified copies for the original as directed by the Courts concerned. It is observed that, the concerned section clerks are returning such copy applications with an endorsement that the unmarked documents cannot be issued as certified copies. This situation is causing serious hardship to the litigants in taking back the unmarked documents. In certain courts, the concerned bench clerks are even consigning the unfiled documents into record section without returning the same to party concerned. In order to obviate this hardship to the litigant parties, the undersigned is desirous to apprise all concerned regarding the legal position on this aspect.

 

Order XIII Rule 7 CPC

Recording of admitted and return of rejected documents:-

(1)            Every document which has been admitted in evidence or a copy thereof where a copy has been substituted for the original under Rule 5, shall form part of the record of the suit.

 

(2)          Documents not admitted in evidence shall not form part of the record and shall be returned to the persons respectively producing them.

 

 

Rule 2 of the Rules made under the Destruction of Records Act, 1917 vide R.O.C.No.9/S.O/73.

 

The relevant portion reads as under:

Un-filed documents to be kept apart and destroyed:

 

Para 1: xxxx

 

Para 2: xxxx

 

          No application is needed for the return of the documents produced which have either not been tendered in evidence or if tendered, have been rejected. It is sufficient if a receipt for their return is taken in the list with which have been put up.

 

        From the above it is clear that the statute provides clear and unambiguous provisions for return of un-filed documents in favour of parties; there is no need to insist the parties to file applications for return of un-filed documents and to substitute them with certified copies.

        In this context a Judgment of Hon'ble High Court reported in
AIR 2006 AP page 3 (Lokara Om Kumar V/S Baikan Satyanarayana) is referred where the Hon'ble High Court in para 8 held as under;

[8] As per Regulation 2, unfilled documents, which have been tendered in evidence or those documents, which have been tendered in evidence, have been rejected, have to be returned to the party who produced such documents. If those documents are not reclaimed by the party, who produced them, then only they have to be retained in the Court for a period of one year from the date of final order. This only means that there is no necessity to keep the unmarked documents in the case file. In the eventuality of the party producing the unmarked documents not reclaimed them then only such documents have to be retained in the Court for a period of one year. Therefore, the view taken by the learned Principal Junior Civil Judge, Ranga Reddy District at L.B. Nagar, is

unsustainable in law.

 

        Therefore, all the Judicial Officers working in the unit are requested to not to insist the parties for filing applications for return of unfiled documents in deviation of the statutory provisions. They have to return all the un-filed documents as per Rule 2 of Rules framed under the Destruction of Records Act as specified above without insisting to file any application. However an exception is drawn that the documents such as Pronotes, bonds etc., even though unmarked in compromise decrees/settlements before Lok Adalat etc., should be superseded and retained in the record as they become void and useless by virtue of a decree/award.  These instructions shall be followed scrupulously in order to avoid loss and hardship to the litigant public and for smooth and effective administration of justice.

 

 The receipt of circular shall be acknowledged.                                               

                                               

 

  Prl.District and Sessions Judge,

                                                                     

To,

All the Judicial Officers in the Unit.

All Bar Associations in the Unit.

 

NBWs in NI Act cases shall be executed by Police

 

The Hon’ble High Court TG and AP in a Judgment reported in 2015 (2) ALT(Crl) 193 = 2015 (2) ALD(Crl) 111 (K.Sangameshawar Vs Chand Pasha) it is ruled that neither the Code of Criminal Procedure nor in the Criminal Rules of Practice contemplate execution of N.B.Ws by the complainant. Further it is held that as per Order 447(3) in Chapter 25 of A.P. Police Manual, N.B.Ws have to executed only by the Police Officers.

Issuance of NBW in baiable cases, though accused failed to appear after receipt of summons, improper