PROTECTION WHEN NOT APPLICABLE FOR COMMUNICATIONS DURING MARRIAGE - EXCEPTION TO SECTION 122 OF THE INDIAN EVIDENCE ACT

       Before moving on to comprehending the exceptions to Section 122 of the Indian Evidence Act, 1872 it becomes quite essential to first understand what this section encompasses to itself. Section 122 of the Indian Evidence Act incorporates the privileged communication between a man and wife in a marriage and secures the communication from any disclosure. This section talks about one of the privileged communication from the lot as incorporated between section (122 – 129).Hence, it becomes imperative to understand that privileged communications are the conversations or the certain matters which can neither be compelled nor disclosed by a witness even if he wishes to do so. It is a protection granted by the law for certain communications. This section rests on a sole fundamental ground that if the communication between a man and his wife are disclosed it would result in unrest, commotion, turmoil and domestic turbulence among the members of the family hence shaking the entire system of mutual trust, faith and confidence which is in fact one of the vital prerogatives of the family setup.

     However, it is to be kept in mind that though this section guarantees protection from disclosure of privileged communication between husband and wife it also carries with it certain exceptions which determines the fact that the protection under this section is not absolute as it guided by certain restrictions and exceptions.

Exception to section 122:

1. When any one of the spouse consents to the disclosure of the communication then this is known as the waiver of privileged communication. When a party consents to such disclosure then the protection guaranteed under this section is not attracted.

2.This section is not applicable when the parties are contesting against each other is a suit or a criminal proceeding as the fundamental purpose of mutual confidence between the partners perishes when they are raged against each other.

3. Any communication made prior to the marriage or after its dissolution cannot be protected under this section. Refer to case Mc Varghese v/s T.J Ponnan (AIR 1970 SC 1876)

4. Any act which does not form a part of the communication can be compelled or disclosed as a testimony.

5. Any communication or a conversation being made by a husband and wife in the presence of a third person or being overheard by the third person can be testified. However, a clear demarcation needs to be drawn when ascertaining as to the communications being overheard and the giving of testimony on the basis of letters, documents….Etc. The letters, documents...Etc as the part of a confidential information of privileged communication must not have been achieved surreptitiously without the consent of the parties. Absence of the consent renders the evidence inadmissible in the eyes of the law with respect to documents, letters etc.

Contributed by,

Maitreyi Raghuraman

LAW OF OBSCENITY IN INDIA

         An interesting fact which amuses many with respect to obscenity law in India is the absence of its definition in the Indian Penal Code. The Indian Penal code comprises of section 292,293 and 294 which deal with strict laws relating to the obscenity. Section 292 of the Code comprises of the contents with regards to the sale of books, pamphlet, paper, writing drawing, painting, representation, figure or any other object which shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embedded in it. This section also guarantees exception to

1.          publication which is proved to be justified as being for the public good and is in the interest of science,literature,art or learning or other objects of general concern
2.         Which is kept or used for bonafide purposes
3.         Ancient monument within the meaning of Archeological Sites and Remains Act 1958(24 of 1958)
4.         Any temple or car used for the conveyance of idols, or kept or used for religious purposes.

      If we were to look into the dictionary meaning of obscenity it clearly defines obscenity as the portrayal or description of sexual matters offensive or disgusting by accepted standards of morality and decency. However, it has been observed that the definition of obscenity has kept on changing and emerging over the period of time. What was considered to be obscene in the earlier years has completely come into the ambits of acceptability in the current trend of society. With consistent advancement in society and its changing views the definition and adaptability of what amounts to obscenity shall keep on remodeling. Section 292 along with 293 were amended Act No 36 of 1969 where the laws were made more stringent and deterrent with respect to the laws of obscenity in India

A standard test which has been followed across the globe to test obscenity is the Hicklen’s test . This was laid down in Regina v/s Hecklin in United Kingdom way back in 1868 and it was held as follows

                   " The test of obscenity is whether the tendency of the matter charged as obscene is to deprave and corrupt whose minds are open to such immoral influences and into whose hands a publication of this sort may fall”.

      Hicklen’s test was followed in Ranjit Udeshi v State of Maharashtra AIR  1965 SC 881 where an important contention was made by the counsel of the accused that Section 292 is void as being an impermissible and vague restriction on the freedom of speech and expression guaranteed under Art. 19 .1(a) and is not saved by clause 2 of the same article.  However the Hon’ble Supreme Court held that this section was introduced by the Obscene publication Act (7 of 1925) to give effect to Article 1 of the international convention of the suppression of or traffic in obscene publications signed by India in 1923 at Geneva. The Hon’ Supreme Court further held that obscenity which is offensive to modesty and decency cannot be protected on the ground of constitutional guarantee of freedom of speech and expression under Article 19(1) (a) .

        In K.A Abbas v/s Union of India the Supreme Court has laid the following guiding principles to be applied by censors when they have to deal with a film which is said to be objectionable on the ground of indecency or immorality:

• ·        Treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more.
• ·        Comparison of one book with another to find the extent of permissible action is not necessary.
• ·        The delicate task of deciding what is artistic and what is obscene has to be performed by courts and in the last resort, by the Supreme Court and so, oral evidence of men of literature or others on the question of obscenity is not relevant.
• ·        An overall view of the obscene matter in the setting of the whole work would of course be necessary but the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity is so decided that it is likely to deprave or corrupt those whose minds are open to influence of this sort and into whose hands the book is likely to fall.
• ·        The interests of contemporary society and particularly the influence of the book etc., on it must not be overlooked.
• ·        Where obscenity and art are mixed, art must be so preponderating as to throw obscenity into shadow or render the obscenity so trivial and insignificant that it can have no effect and can be overlooked.
• ·        Treating with sex in a manner offensive to public decency or morality which are the words of our (1) [1965] 1 S. C. R. 65 Fundamental Law judged by our national standards and considered likely to render to lascivious, prurient or sexually precocious minds must determine the result.
• ·        When there is propagation of ideas, opinions and informations or public interests or profits, the interests of society may tilt the scales in favour of free speech and expression. Thus books on medical science with intimate illustrations and photographs though in a sense immodest, are not to be considered obscene, but the same illustrations and photographs collected in a book from without the medical text would certainly be considered to be obscene.
• ·        Obscenity without a preponderating social purpose or profit cannot have the constitutional protection of free speech or expression. Obscenity is treating with sex in a manner appealing to the carnal side of human nature or having that tendency. Such a treating with sex is offensive to modesty and, decency.
• ·        Knowledge is not a part of the guilty act. The offender's knowledge of the obscenity of the book is not required under the law and it is a case of strict liability." Application of these principles does not seek to whittle down the fundamental right of free speech and expression beyond the limits permissible under our Constitution for however high or cherished that right it does not go to pervert or harm society and the line has to be drawn somewhere.  

          In  Samresh Bose  & Ors v/s Amal Mitra and Ors it was contented whether reference to kissing, description of the body parts of female  characters in books suggesting sex by themselves have any effect of depraving and debasing, and encouraging lasciviousness  among readers of any age . The Supreme Court held that vulgar writing is not necessarily obscene.   

 

               “Vulgarity arouses a feeling of disgust and revulsion and also boredom but does not have the effect of depraving, debasing and corrupting the morals of any reader of the novel, whereas obscenity has a tendency to deprave and corrupt those minds that are open to such immoral influences.

         The Supreme Court in Aveek Sarkar V/s State of West Bengal held that Hicklen test is not the correct test to be applied to determine ‘what is obscenity’. We have therefore to apply the “community standard test” rather than ‘Hicklen test “to determine ‘what is obscenity’. A picture of a nude/semi-nude woman, as such, cannot per se be called obscene unless it has the tendency to arouse feeling or revealing an overt sexual desire. The picture should be suggestive of deprave mind and designed to excite sexual passion in persons who are likely to see it, which will depend on the particular posture and the background in which the nude/semi-nude woman is depicted. Only those sex-related materials which have a tendency of “exciting lustful thoughts” can be held to be obscene, but the obscenity has to be judged from the point of view of an average person, by applying contemporary community standards.

     The Supreme Court in the same case also made reliance to Bobby International & Ors v/s Om Pal Singh Hoon (1996) 4 SCC 1 where the Supreme Court held that the scenes in the movie Bandit Queen were depicted not to titillate the lust of the cinemagoers but to arouse in them sympathy for the victim and disgust for the perpetrators.

  Punishment under section 292: On first conviction with imprisonment of either description for a term which may extend to 2 years and with fine which may extend to 2000 rs, and, in the event of subsequent conviction ,with imprisonment of either description for a  term which may extend to five years or with fine which may extend to 5000 rs.The offence under section 292 is cognizable, bailable , non compoundable and triable by any Magistrate.

     Similarly,Section 293 provides for the selling, letting for hire, distribution or circulation of any obscene object to a person under the age of 20 years to be punished on the first conviction with imprisonment of either description for a term which may extend to three years, or fine which may extend to 2000 rs and on subsequent conviction with imprisonment of either description of a term which may extend to seven years or with fine which may extend to 5000 rs.

    Section 294 provides for punishment for doing an obscene act or singing, reciting or uttering an obscene song at public place which causes annoyance to others. The offence of eve teasing is covered under section 294 but a punishment upto only 3 months is considered in the case of eve teasing. The offence under section 294 is cognizable,bailable ,non compoundable and triable by Magistrate .

Contributed by,

Maitreyi Raghuraman

CONDONATION OF DELAY UNDER SECTION 5 OF THE LIMITATION ACT, 1963

Section 5 of the Limitation Act deals with expression condonation of delay. It reads as follows:

Extension of the prescribed period in certain cases: Any appeal or any application, other than an application under any provisions of Order XXI of the Code of Civil Procedure, 1908(5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation : The fact that the appellant or the applicant was mislead by  any order, practice or Judgment of the High Court in ascertaining or computing the prescribed period may be a sufficient cause within the meaning of this section.

           It becomes quite imperative to understand the literal meaning of “Condone / Condonation “before proceeding further with the write up. In literal sense condone means to approve or sanction something especially with reluctance. From this definition we can construe that the Court condones a delay with a sense of reluctance but prescribing the same on the basis of a “Sufficient Cause”. Section 5 of the Limitation Act, 1963 plays a vital role as it encompasses the expression condonation of delay of any appeal or application after the prescribed period. If we were to look into section 3 of the Limitation Act, 1963 it is been clearly mentioned that any suit instituted, or an appeal preferred or an application made after the prescribed period of time shall be dismissed. It is immaterial if the defence was taken up for the delay or not. This is indicative of the fact that this power is exercised by the discretion of the court.

        Similarly under S.5 the Court is empowered to exercise its discretion in condoning the delay considering that a sufficient cause exists in ascertaining the same. In Balwant Singh (Dead) v/s Jagdish Kumar and ors AIR 2010 SC 3043 the Hon’ble Supreme Court has held that sufficient cause means presence of legal and adequate reasons. In the same Judgment it was again reiterated that the Law of Limitation may affect a particular party harshly but it has to be applied with all rigour when the statue so prescribes and the courts have no power to extend the period of limitation on equitable grounds.

        In  Land acquisition officer Ananth Nag v/s  Mst. Katiiji and ors  AIR 1987 SC 133 The Supreme Court has held that the expression Sufficient cause  employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of Courts . The Supreme Court in this Judgment prescribed certain guidelines regarding the liberal approach to be adapted to evaluate a sufficient cause

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

         From a plain reading of S 5 it is comprehensible that Section 5 deals with the condonation of delay of applications and appeals but not the institution of suits. The Court has managed to prescribe a list of conditions which amounts to a sufficient cause in seeking condonation of delay as under S 5 of the Act.

1.      Mistake of fact - Must be bonafide and unintentional in nature.

2.      Disease or illness of the applicant in filing the appeal or application in a prescribed time

3.      Imprisonment of any of the parties to the suit

4.      Mistake by Court authorities in providing copy of the decree or order

5.      Mistake of Law only under bonafide and authentic conditions.

6.      Mistake of Counsel –  however, Counsels engagement in other Court is not an excuse

7.      Illiteracy ,poverty and being a Pardanashin women are certain other grounds

     We can conclude that the main focus of section 5 is not intended to calculating the amount of delay in time but this section is focused at the cause of such delay. The delay in filing appeal or application must be under bonafide, authentic and genuine grounds lacking any particular intention to vexatious delay and harassment to the other party.

Contributed by:

Maitreyi Raghuraman

RECOVERY OF POSSESSION OF IMMOVABLE PROPERTY UNDER SPECIFIC RELIEF ACT,1963

      

     

   The recovery of possession in the Specific Relief Act, 1963 is mentioned under chapter 1 from section 5 to 8. The recovery includes both the movable as well as the immovable property however, section 5 and 6 deals with the recovery of immovable property.

 Section 5 reads as follows:

Recovery of specific immovable property:

A person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure, 1908(5 of 1908).

       If we were to minutely analyze this section then we are clear off at understanding that this section deals with the recovery of possession on the basis of title and in the manner guided by the Code of Civil Procedure ,1908 under Order 21 Rule 35 and 36. There are certain guidelines propounded by the Court of law which govern as to what encompasses “entitlement to possession”:

• ·        A person cannot be said to be entitled to possession if he were given to acquire the occupation of the possession gratuitously.
• ·        Care taker, servant, watchman or a friend who was allowed to the premises for sometime cannot acquire title to the property irrespective of their long possession and the Courts are not justified at protecting their right to title.
• ·        To entertain a suit for the recovery of specific immovable property on the basis of title it is imperative for the person to prove that he has a valid, subsisting rent agreement, lease or license agreement in his favor.

       For a valuable understanding of this section it becomes quintessential to glance at the provisions of section 110 of the Indian Evidence Act which states the burden of proof as to ownership. This section enunciates that when there emerges a question of ownership of possession the burden of proving that the person is not the owner lies on the person who affirms in converse. It is also important to note at this point that the possession holds good against the whole world except the true owner.

       Section 6 of the Specific Relief Act, 1963 deals with the suit instituted by persons dispossessed of immovable property and to attract this section the following conditions are essential and need to be fulfilled in toto:

·        The plaintiff must prove his juridical possession to the property prior to dispossession.
·        The plaintiff must have been unlawfully dispossessed from the property without his consent. Which clearly implies that it must not have been an action taken by the Government or the Public Authority in the rightful exercise of their duty.
·        The plaintiff must have instituted a suit within 6 months from the date of dispossession.

        Section 6 was introduced to provide expeditious relief to persons who are wrongfully and unlawfully dispossessed from the possession without any consent. It was also introduced with a purpose to deter people from taking law into their own hands. This section also holds well against owners who unlawfully and unauthorizedly dispossess the tenants exposing them to traumatizing and fragile conditions. This section caters to summary relief but to see its application at a full swing the plaintiff must suffice all the prerequisites as mentioned above before coming to the Court of Law.

         Since this section was introduced to expeditiously resolve matters hence, there shall lie no appeal against any order or decree in any suit instituted under this section, nor shall any review of such decree or order be allowed -Section 6(3). This clearly emphasizes that the order or decree passed under this section is a case decided and only Revision as under Section 115 of the Code of Civil Procedure, 1908 shall be allowed. However, institution of suit under this section does not bar the aggrieved party to seek relief under Section 5 for the recovery of property on the basis of title.

        In the similar context in the Code of Criminal Procedure, 1973 under Section 145 the Executive Magistrate on receiving a report from the police officer or upon information that a dispute is likely to cause breach of peace, can make an order in writing, stating the grounds to be satisfied and requiring the parties concerned in such dispute to attend his court in person or by his pleader on a specified date and time. If it appears to the Magistrate that any of the persons have been wrongfully dispossessed within two months next before the date on which the report of the police office or the information so received he shall treat as if the party so dispossessed had been in possession on the date of his order. This section also entitles to the person unlawfully and wrongfully dispossessed the right to seek quick justice and remedy.

         Hence, the major point of difference between Section 5 and Section 6 lies in the fact that under section 5 the suit is instituted to recover the possession on the basis of title and governed by the manner provided under the Code of Civil Procedure, 1908 and is usually a lengthier and time consuming procedure. However Section 6 deals with unlawful dispossession from property and title is immaterial. This section ensures a speedy recovery and summary procedure to help the aggrieved party.

Contributed by,

Maitreyi Raghuraman

INHERENT POWER OF THE HIGH COURT UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE

      Section 482 of the Code of Criminal Procedure lays down as follows:

Saving of Inherent powers of High Court

Nothing in this code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.

The Inherent powers of the court were introduced as Section 482 by an amendment in the year 1923 even though the Courts possessed the power way before the Act came into existence. It is basically a reproduction of section 561 (A) of the 1898 Code. The Inherent powers of the code engraft an essential supremacy of the High Court to use the powers vested upon it :

• ·        To give effect to any order under the Code
• ·        To prevent the abuse of process of any Court
• ·        To secure the ends of justice.

This power has been conferred exclusively upon the High Court in the Code of Criminal procedure as no other court can exercise such an exclusive power. Hence, the Inherent power needs to be very sparingly used with adept judicial reasoning and only under exceptional circumstances to prevent the miscarriage of justice and also prevent the abuse of law. The inherent power of the High Court has no limit but this needs to be exercised very cautiously ,judicially and never arbitrarily to meet the whims and caprice of fake litigants.

To dwell deeper it is essential to quote certain case laws which help in establishing the core essence of this section.

In  Ram Chand v/s State of Bihar 1977 Cri LJ 466 (Pat) it was held that the inherent power of the High Court cannot be invoked to override an express provision of law or when there is already remedy available under the Code.

In Madhu Limaye v/s State of Maharashtra AIR 1978 SC 47 the Supreme Court mentioned certain guiding principle in exercising this power.

“At the outset the following principles it may be noticed in relation to the exercise of the inherent power of the High Court which have been followed ordinarily and generally almost invariably having few exceptions

• ·        The power is not resorted to if there is a specific provision in the code for redress of grievance of the aggrieved party
• ·        That it should be exercised very sparingly to prevent abuse of the process of any Court to secure the ends of justice
• ·        That it should not be exercised as against the express bar of law engrafted in any other provision of the code.”

         It was in the same case where the Supreme Court resolved the most haunted question whether the High Court has the power to exercise its inherent power in the revision of interlocutory order under section 397(2).Section 397(2) states that the power of revision shall not be exercised to any interlocutory order passed in any appeal, inquiry, trial or other proceedings. The Supreme Court held that the bar created by section 397(2) of the code of criminal procedure shall not prevent the High Court from exercising its inherent powers for stopping the criminal proceedings as early as possible instead of harassing the accused up to the end.

The Supreme Court in CBI v/s Ravishankar Shrivastava AIR 2006 SC 2872(2875) has laid down exemplary circumstances wherein the high Court could prevent the miscarriage of justice. This power must be used by the Court sparingly and in the rarest of the rarest cases.

"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

Similarly,in Rajiv Thapar v/s Madan Lal Kapoor (2013) 3 SSC 330 the Hon’ble Supreme Court has laid down stepwise enquiry for High Court to follow in exercise of the power of quashment U/S 482 of the Code of Criminal Procedure.

“We would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under section 482 of Cr.P.C

(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?

(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.

(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?

(iv) Step four, whether proceeding with the trial would result in a abuse of process of the court, and would not serve the ends of justice?

If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused. [Para 23]

               It must be concluded from the above leading case laws that Section 482 of the Code of criminal Procedure does not vest any new power to the High Court but saves the existing power that it has been conferred with before the enactment of this code. This power is exclusively vested and judicially exercised by the High Court under and needs to be used in exceptional cases under exceptional circumstances only.

Contributed By,

Maitreyi Raghuraman

TEMPORARY INJUNCTION AS UNDER ORDER XXXIX Rule 1 to 5 OF THE CODE OF CIVIL PROCEDURE

This article is with a view to discuss Temporary Injunction as given under Order XXXIX Rule 1 to 5 of the Code of Civil Procedure.

Injunction is a judicial proceeding which directs a party to do or to refrain from doing any particular act. When an order of Injunction prohibits a party from doing any particular act it becomes a prohibitory injunction whereas, when an order or Injunction compels a person do a particular act it is a Mandatory Injunction. The main objective for granting temporary injunction is to maintain subject matter in status quo for the time being. Injunction also helps in the preservation of property till the legal rights and conflicting claims of the parties are adjudicated before the court.

Injunctions are of two types: Temporary and Perpetual. The major point of difference between the two lies in the fact that temporary injunction is granted during the pendency of the suit till the disposal of the suit or otherwise directed by the court, and are governed by rules under Order 39 rule 1 to 5 of the code of Civil Procedure. Perpetual injunction is granted at the conclusion of trial after hearing both the parties and is governed by section 38 to 42 of the Specific Relief Act, 1963.

As previously stated injunction is a judicial proceeding which bestows the Court to exercise its discretionary power and is granted only after crucial circumspection and application of sound judicial principles. The order of injunction cannot be granted arbitrarily hence, there are vital principles which need to be evaluated before granting the same. The essential principles on which the Injunction is majorly dependent are

1 1.   Existence of a prima facie Case:

The existence of prima facie case connotes a bonafide dispute which establishes an affordable ground for the applicant to seek relief claimed based on the merits and facts of the case. In the leading case of Dalpat Kumar V/s Prahalad Singh AIR 1993 SC 227 the Hon’ble Supreme Court held that the burden of proof lies on the plaintiff to satisfy the court by leading evidence or otherwise that he has a prima facie case in his favor. In the same case the Supreme Court also that a mere existence of prima facie case is not sufficient to entitle temporary injunction to the applicant.

2. Irreparable Injury/Loss

In CCE V/S Dunlop India Ltd  AIR 1985 SC 330 the Hon’ble Supreme Court held that irreparable damage means , a damage which is capable of satisfying the court that it cannot be compensated by damages and no pecuniary standards can be ascertained in measuring the damages.

3. Balance of Convenience

The balance of convenience must always be in favor of the applicant. In weighing the probabilities the Court must be convinced that in denial to grant temporary injunction the plaintiff would encounter serious irreparable damages, it is only after thoroughly scrutinizing and evaluating, the Court sanctions the order of Injunction in favor of the applicant.

4. Other Grounds:

Other grounds which purport a sufficient cause to deny or grant temporary injunction must be complied with as per the sound judicial discretion. Other affording conditions like latches, suppression of material facts, and intention on the part of the applicant to defraud and delay, inability of the applicant to come with clean hands can efficiently compel the Court to deny or reject temporary injunction.

There are specific grounds under which a temporary injunction can be granted and they are laid out respectively as per the provisions given in the Code of Civil Procedure

·       That any property is dispute is in a danger of being wasted, damaged, alienated by any party to the suit, or wrongfully sold in execution of a decree or, Order XXXIX Rule 1 (a)

1. ·       That the defendant threatens or  intends, or remove or dispose of his property with a view to defrauding his creditors, Order XXXIX Rule 1 (b)
2. ·       That the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, Order XXXIX Rule 1 (c)
3. ·       To restrain a defendant from committing breach of trust or any injury of the any kind, Order XXXIX Rule 2 (1)
4. ·       In case of disobedience to injunction commit the person to civil prison, and order his property to be attached and sold or, Section 94 (c)
5. ·       Whatever the court deems fit to meet the ends of justice, Section 151

Court’s exclusive power to grant Ex-Parte Injunction

Under Order XXXIX Rule 3 the Court is entitled to exercise its power to grant ex-parte injunction. But, this power is to be sparingly exercised and only under exceptional circumstances by the court with the application of sound judicial reasoning. Usually the Court needs to send a notice to the opposite party before granting Injunction but Rule 3 lays down an exception where granting the injunction would be defeated by delay. In such cases the Court requires the applicant to deliver to the opposite party or by registered post immediately after the order of granting injunction the following

• ·       A copy of affidavit filed in support of the application
• ·       A copy of the plaint, and
• ·       Copies of documents on which the applicant relies

           Under Order XXXIX Rule 3A the court shall make an endeavor to finally dispose of the application within thirty days from the date on which the injunction was granted, where it is unable to do so it shall record its reasons for doing so.

The Order granting or refusing to grant injunction is subject to appeal. Since the Order is a case decided within the meaning of section 115 revision lies against such Order. The order shall stay operative till the disposal of the suit or throughout the proceeding. As per rule 4A the order of injunction is subject to being discharged, varied or set aside.

In case of breach of injunction and disobedience under Rule 2A, the court can perform the following procedures:

• ·       Arrest of the opponent and detention in the civil prison for a period not exceeding 3 months
• ·       Attachment not remaining in force for more than 1 year
• ·       If disobedience continues then the attached property can be sold, and out of the proceeds the court may award such compensation as it thinks fit to the aggrieved party.

 Regards,

 Maitreyi Raghuraman

TENANCY BY HOLDING OVER AS UNDER TRANSFER OF PROPERTY ACT,1872

This article is targeted to discuss Tenancy by holding over as given under the Transfer of property Act, 1872.Tenancy by holding over has been guaranteed under 116 of the Act which states as :-

“If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106 “

This section enunciates the effect when the lessee or an under-lessee of a property stays in the possession after the determination of lease (also known as the termination of lease as mentioned under section 111 of the Transfer of Property Act,1872 ) and the lessor or his legal representative assent to the continuation in possession or accept rent thereof then the lease will be renewed as per the provision given under section 106 of the Transfer of Property Act ,1872 in the absence of any agreement to the contrary.

It is to be pointed here that the whole effect of this section is dependable on the assent of the lessor or his legal representative by the way of giving assent or accepting rent both ad idem. This clearly implies that there must be meeting of minds between the lessor or his legal representative and the Lessee or the under-lessee concerning the continuation of possession after the determination of lease. Hence, a mere acceptance of rent would not act as a sufficient ground to attract this section.

How is tenancy by holding over determined?

The essential ingredients in determining the tenancy by holding over are as follows:

·       The possession must be continued with the assent of the lessor or his legal representatives.

·       The consent must be definite in pursuance to the continuation of tenancy.

·       Consent or the assent must be consensus ad idem leaving no room for any loop holes and inadequate inferences.

·       Acceptance of the rent must always be in the clear recognition of the acceptance of tenancy.

 Tenancy-at-sufferance

In the above scenario the possession was continued since the determination of lease with the assent of the lessor or his legal representatives. Whereas, when a lessee or an under-lesssee happens to continue in the possession of the property since the determination of lease without the assent of the lessor or his legal representatives then this is termed as the tenancy at sufferance. The tenant at sufferance does not enjoy any legal title and can be subjected to ejectment without serving any notice.

Tenancy at will

Tenancy at will is a tenancy which is terminable at the will of either the landlord or his tenant. A tenancy at will can arise anytime by the implication of law with the consent of owner to continue in possession or, by an express agreement to pay compensation on day to day basis where the period of tenancy is not defined. One of the important differences between tenancy at will and tenancy by holding over is the power of alienation. Tenancy by holding over entitles the tenant to alienate tenancy however the same is not true in case of tenancy at will.

Tenancy at will is terminable /determined in the following manner:

• ·       Terminable by either of the parties (Landlord or Tenant / lessee)
• ·       Death or the landlord or the tenant/lessee.
• ·       When a tenant puts the possession on sub lease /under lease.
• ·       When the Tenant/ Lessee acts inconsistent with the will to continue.
• ·       Alienation of tenancy.

Difference between tenancy by Holding over and tenancy-at-sufferance:-

Retention of possession:

Tenancy by holding over: With the consent of landlord or his legal representative

Tenancy- at-sufferance: No consent

Interest in the leasehold

Tenancy by holding over – Has some interest

Tenancy -at-sufferance – No interest

Power to alienate tenancy

Tenancy by holding over – Transferable and heritable

Tenancy-at-sufferance – Neither transferable nor heritable

Notice  for ejectment

Tenancy by holding over – Notice as with respect to provision U/S 106 of the act

Tenancy –at- sufferance – No notice required

Regards,

 Maitreyi Raghuraman