Law Notes Dynamo

Thursday 25 August 2022

Article 226 Power of High Courts to issue certain writs

226. Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause ( 2 ) of Article 32

Article 227 Power of superintendence over all courts by the High Court

227. Power of superintendence over all courts by the High Court

(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction

(2) Without prejudice to the generality of the foregoing provisions, the High Court may

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein: Provided that any rules made, forms prescribed or tables settled under clause ( 2 ) or clause ( 3 ) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor

(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces

Monday 18 July 2022

Administrative law one liner notes - Part 2

Vande Matram!

Government has to administer the State and its people by making various rules and regulations. The working of the government to administer the State is to abide by various administrative laws. Here are some one liners for your notes to prepare any judicial exam.

Part 1

· Both the Union and the states are divided into three great departments, namely,

o (1) the executive,

o (2) the legislature, and

o (3) the judiciary.

· Executive may act in exercise of the executive power of the Union or of a state or it may act under the authority of a specific statute or subordinate legislation.

· The exercise of all administrative powers is subject to the rule of law.

· The legal control may be exercised by three authorities, namely,

o (1) the legislature,

o (2) the higher executive, and

o (3) the judiciary.

· Administrative law concerns itself mainly with the legal control of the government or of administrative authorities by the courts.

· In general the public law deals with the relations between the states on the one hand and the individual or groups of individuals or associations on the other hand. Whenever a question arises as to the relationship in various circumstances between the state and the individual, it falls in the domain of public law; for instance, constitutional law, administrative law, criminal law, law of taxation etc., are all branches of public law.

Administrative law one liner notes - Part 1

Vande Matram!

· The expression "Administrative Law" may mean two different things, namely,

o (a) law relating to administration, and

o (b) law made by the administration.

· There are again two types of law made by the administration:

o Rule making - rules, regulations, orders, schemes, bye-laws, etc made by the administrative authorities on whom power to make such subordinate legislation is conferred by a statute.

o Adjudication - certain administrative authorities have power to decide questions of law and/ or fact affecting particular person or persons generally.

· Most of such powers to decide questions of law and/ or fact affecting particular person or persons generally are exercised quasi-judicially.

· Administration is government or a department of government or an agency of the government.

· Under the Constitution of India the powers of the state are divided between the Union (including the Union Territories) on the one hand and the states on the other hand.

Wednesday 13 July 2022

One person may sue or defend on behalf of all in same interest O1 R8

Code of Civil Procedure

Rule 8 of Order I of CPC

¹[8. One person may sue or defend on behalf of all in same interest.—(1) Where there are numerous persons having the same interest in one suit,—

(a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested;

(b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested.

(2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff's expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.

(3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule (1), may apply to the Court to be made a party to such suit.

(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3), of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the Court has given, at the plaintiff's expense, notice to all persons so interested in the manner specified in sub-rule (2).

(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit.

(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.

Explanation.— For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be.]

Foot note:

1. Subs. by Act 104 of 1976, s. 52, for rule 8 (w.e.f. 1-2-1977).

Commentaries:

Order I, Rule 8 provides that persons may be impleaded in representative capacity where they are in large number but having the same interest with the provision of the court. [1][2]

Authorities:

[1] Diwakar Shrivastava & Ors. V. State of Madhya Pradesh & Ors, AIR 1984 SC 468

[2] http://www.nja.nic.in/16%20CPC.pdf

Saturday 9 July 2022

Commission for scientific investigation O26 R10A

The detailed provisions for issuing commands under Section 75 of CPC are set forth in Order 26 Rule-10A of CPC [1] which are as under;

"Rule 10A- Commission for scientific investigation-(1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interests of justice as to do, issue a Commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court.

(2) The provisions of rule 10 of this Order shall, as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under rule 9."

Commentaries:

A perusal of the rule shows that a discretion has been vested in the Civil Court to get any scientific investigation (Section 75 Clause (e)) conducted only if it needs necessary or expedient in the ends of justice. The basic rationale of this provision is that the Commission is going to held in extracting the truth. There is established procedure known to law that the Commissioner's report form part of the record and the same becomes evidence as a whole in the suit.[1]

It is not safe for a Court to act as an expert and to overrule the elaborate report of a Commissioner whose integrity and carefulness is unquestionable whose careful and laborious execution of task was proved by his report and who had not blankly adopted the assertions of either party.[1]

Report of a commission appointed by the Court is entitled to be accepted in its entirety as an evidence under Section 45 of the Evidence Act.

An order passed in the incidental proceedings will have a direct bearing on the result of the suit. [1]

Commissioner whose integrity is unquestionable his elaborate report cannot be overruled by the Court. [1] [2]

A document can be sent to the experts for examination and opinion about the date of printing and the period when it was circulated.[1][3]

Authorities:

[1] The Sunni Central Board Of Waqfs ... vs Gopal Singh Visharad [Allahabad High Court]

[2] AIR 1924 Cal.620, Amrita Sundari Versus Munshi

[3] In 2006 (4) Bom LR 336 Bapu Dhopndi Devkar v. S. Najaokar

Saturday 11 June 2022

Dowry MCQ Part 4

According to section 498A of IPC any cruelty for dowry to a woman by the husband or his relatives is

a) a non-bailable offence with up to three years jail and fine

b) a bailable offence with up to three years jail and fine

c) an offence with fine up to 5 thousand rupees

d) a non bailable offence with up to seven years jail and fine

============

Punishment for Dowry Death is

A. Death Punishment

B. Imprisonment not less than 7 years and may extend to life

C. Imprisonment upto 10 years and fine upto Rs. 50,000/-

D. No imprisonment, only fine.

===========

Which Court shall try an offence under Dowry Prohibition Act, 1961 if the offence is committed in Mumbai?

A. Judicial Magistrate First Class

B. Metropolitan Magistrate

C. High Court

D. Family Court