EXPERIENCE

This was my first time in my life till today to board a plane for Malaysia. I was so excited on 6th July. My Flight to Malaysia was scheduled at 8.55 PM from Mumbai International Airport. So I reached there by 6' O Clock for check in. As soon as I reached Airport, I was informed that my flight is retimed to 10:50 PM, so I made some necessary calls to my family and friends and then Checked-in at 8' O Clock. After the formalities of Boarding Pass, Emigration, I finally entered inside the Airport.

There I found so many persons waiting for their call to board the plane. It was 10:30 PM, I was informed that my flight has not been reached to the Airport from Malaysia. It was informed to me that, the flight will arrive at 12:40 PM and it will take another 1 hour to reschedule the things and take off. There I found, absolutely Mess at the Airport. There was no proper seats in the waiting area. Everybody was asking each other about the flight, its arrival and departure. There was not a single person from the Airport Authority to solace the people. So I decided to take a ride to food stalls.

AT the food stalls the prices were on the sky. A Pulav costs Rs.175/-, A can of Beer Rs.260/-, Biryani costs Rs.150/-, A water Bottle costs Rs.50/-. It was horrible experience to see these price tags. Forcibly I have to eat Pulav and took a sip of water. Again went to boarding area. It was 12:50 AM, an announcement was made for the passengers flying to Malaysia to board the plane.

When I entered the plane, I saw some typical faces of Air Hostesses Red Dressed. It was a fun for the conversation with them. One of the Air Hostesses helped me to reach my seat, fortunately it was a window seat. Around 1:30 AM, there was an announcement to fasten the seat belt. Thereafter two Air Hostesses performed the practical, for fasten the seat belt, oxygen mask, life jacket in case the plane falls in sea, etc

Exactly at 1:40 AM the plane started. During take off, I saw from the window, and it was so beautiful to see the Mumbai lights. After few minutes our plane was above the cloud. when the plane was in Air Pockets ( I think turbulance) it was moving up and down, so I tightened my hands on the chair and forcibly slept. I was so frightened to unfasten the seatbelt. But my friend helped me out and then I took a walk from front to the back of the plane.

At around 9:10 AM (6:10 IST) the plane landed at Kuala Lumpur Airport. The Green City, with full of Field Squares, Water, Greenery. After completing the formality of emigration, baggage, I came out of the Airport, there I saw, a woman with a plate searching for me and my friends. She immediately took us to our hotel Brisdale in Kuala Lumpur.

In Brisdale Hotel, the receptionist asked me to wait till 2:00 PM, as it is the regular check-in time in Malaysia. So I kept the luggage and went outside, to satisfy the tummy.There I found one Shalimar Restaurant, at the Chow Kit sqaure. The owner of the Restaurant was typical ANNA. While perusing Menu Card, I felt very joyous. I could eat, Rice, Masala Dosa, Wada, Uttapam, Samosa, Jilebi, Gulabjam, Balushahi. Farsan, Misal, Tea, Coffee.

After a typical गयावया to the Receptionist, she gave me room at 12:00 Noon. Where I take the first foreign bath. The ambience of hotel and bathroom is normally seen in pictures. After that, I took a survey of the entire hotel Brisdale, I was accomodated on 14th Floor, Then I went to 17th Floor where the Restaurant is situated.

The first thing I saw in KL, is the discipline. The vehicles specially Buses, Private Cars, Taxis were plying in a very smooth manner, there was no rashness in their driving. There are yellow and black strips at the roads, with a pedestrian signals ( both working) I have not heard a single horn of any vehicle during my 5 days stay in KL. Even if the pedestrian has a red signal and still he attempts to cross the road, the vehicles are automatically stopped allowing him to cross the road. No abuses, no staring towards such a person.

The most important thing I saw is that, all the Signals (Red, Yellow and Green including pedestrian signlas) were working properly throughout a day and night. Four and Two wheelers always accomodates the pedestrian. Inter alia, there were mono rail, and metro rail. Mono rail, Metro Rail, Buses are fully automatic and air conditioned. Similarly parking of vehicles at the road side was really an eyeopener for our indians. Above all, there was no traffic police guarding the roads for hours together.

There are cement road cutting across. A proper drainage ( fully covered ) running beneath the roads. Unmanned Public Toilets are situated at every square. Just you have to insert 50 cents and the door is opened automatically. Inside those toilets are well equipped with censors. Water dispensation, hand dryer are well maintained. No taps from the basins were found removed. The people were using the paper roll as per their minimum requirements.

After say every 100 to 200 feet, there was a dustbin. No pieces of any waste products are thrown on the streets, and if anybody throws it, the pure malaysian picked it up and placed in the dustbin. After every 200 to 500 square feet, a persons are deputed to pick up the waste, and wash the road by wet and dry mops. Every taxis, during day or night time scrupoulously plied by a meter. A minimum fare of taxy is 3 Ringgit i.e. Rs.45 INR.

Malaysia was earlier rulled by Britishers. In 1957 Malaysia got the Independence. Since then there are number of fly overs ( almost 10 times what Maharashtra Govt including Gadkari Regime in all these 63 years (if 1947 is taken) and 50 years (if 1960 is taken) constructed by Malaysian Government only. There were no fly overs in the regime of British rule malaysia. All the fly overs are well-planned and properly connecting to the localities, having walkways at necessary points ( to avoid the long U turn for the public and vehicles )

India and Malaysia is having great resemblance in respect of Pre and Post Independence still due to lack of vision of our great leaders we remain in the same old state till we cross 63 years of Independence India. The malaysia is leading in all spheres i.e. Technology, Governance, Road and Transport, Conservancy, Taxes, Facilities to Public, Rail, conveyance, Agriculture, Chemicals, Food Products, Electricity, Petroleum products, Water management. etc etc and so on. We have only beat them in terms of Population.

The best thing I saw is the Rail Ticketing. After you purchase a mono rail ticket, you have to insert it in a check-in box, after you insert it, the screen shows the message, TICKET ACCEPTED, there after from another slot, you receive the ticket. After you board the monorail and get down from it, again you have to insert it in a check-out box, then again same message is displayed and the ticket is deposited in the box, then only the exit gates are opened and you could come out of the railway station. The exit gates are so sealed, that without reading the ticket it won't allow a single person to get out of the station. ( This was also unmanned railway station )

Similar is the case with the lockers. If you desired to put your hand bag, or small luggage, you have to insert three notes of 1 Ringgit in a slot, once you insert, a slip comes out having bar code and at the same time, a locker gets opened. On closing it locked automatically. Once you insert the slip in a bar code reader the locker panel opens waiting for you. This locker system is unmanned. Only enquiry counter is kept in case of emergency. This is what called a Use of Technology. Similar system is available in the Bank Lockers, Clock Rooms, Shop Lockers, etc.

I went to China Town. A grey market specially meant for excessive bargaining. China products are mostly kept for sell. Language is no barrier in Malaysia, there are many hindi knowing persons available there. A separate area is constituted for Food Hub in China town. Indians are also having shops in China town. But with a desent atmosphere, you can purchase in China Town.

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I thought to purchase some T-Shirts for my son, and was searching for 26 to 30 number inside the collar. The shop owner asked me, to go for 14 to 18, which will beffit to my sons.

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Really, we can't purchase cloths, t-shirts or bermudas for kids, as the number which they normally wear in India is used by moms of malaysia, so it is bit difficult to choose the beffiting garments.

The ethnic indian, Ananda Krishnan is the second richest man of Malaysia. He has owned one of the Petronas Twin Tower as it was built in the land owned by him. That building is having a resembling look of American Twin Tower. After the fall of towers on 9/11, these petronas were under close scrutiny and security. But since last two years, the security is cut down to almost 1/80th.

The national flower of malaysia is HIBISCUS i.e. Jaswand. There are number of trees of Hibiscus, on either side of the city roads. Hibiscus is consisting of 5 petals. each represent the policy of malaysia.

1) Unity 2) democracy 3) equal distribution of wealth in society 4) liberal approach and 5) progressive society.

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Every political party is having the great respect of Hibiscus. I did not find any instance from the people hating the national flower just because it is the election symbol of any political party. In india, our lotus is more deepened in the mud, and found in very few parts of the country.

Tiger is the National Animal of Malaysia. Again there is a resemblance. But only for the namesake. The way of protecting them is simply marvelous. There is no hunting of Tigers (legally or illegally). The number of tigers of Malaysia is around 769.

The most humble, sophisticated and submissive person you will get in Malaysia is the POLICE. You can have a chat with him, can take snaps with him. You can ask n number of questions to him, he is always ready to provide you every details and get the best deal of conveyance. He is the true caretaker of public maintaining law and order in the most suitable manner. I haven't heard of any road accident from him since last 16 months in KL city.

Malaysia is self sufficient and independent for petroleum products, hence petrol price there in Malaysia is Rs.26 per litre. Similarly they prepared one typical type of rustless metal which has a regular demand in all over the globe. There is a free economy. Genuinely a freedom of thoughts, profession, worship can be experienced in Malaysia. There is no pseudo type politics or red tapism adopted in Malaysia.

It is the Government, who has initially given some facility to the public at large and in turn expecting self imposed discipline from the people. The people are also supporting the country in all respect very respectably. Government has given the facilities more than the expectations of the public, the people has to only maintain it and they are maintaining it quite nicely.

In Malaysia, I found number of shops of SPA or Massage Centre after every 100 to 200 feet. The charts are displayed on the roads detailing the types of massage, including medicure, pedicure, body massage, fish massage, etc etc. The people over there are very much health conscious. Unlike our Yoga Taparis, every government office has motivated the ppl for maintaining peaceful mind, healthy body, and balance activities.

There are some big SPA providing Jakuzi, Sauna, Steam in just RM 85 i.e. about Rs.1,000/- Every SPA shop has a polite instructor, who helps us maintaining the time slots in Sauna and Steam Rooms. A cold drink or a coffee as per the taste is also provided.

There are no Taparis, for Pawn and Gutkha, though there is no restriction over it, still in very few places, I saw Beetel Leaves. Cigaratte stalls are in ample number. Normally Dunhill and Marlborou Cigarattes are famous in KL. Some shops provides Zurkas or Chilims in a Gudgudi.

Though there are no written rules for the Do's and Don't, still the ppl are following some unwritten convention as far as cleanliness, traffic rules, paying of taxes, use of facilities, hospitality, hygenic conditions in hotels, shops and eating houses. Every individual is working in the growth of the country.

Malaysia is a city of Malls. Big Malls. You can invariably see the big Escalators. Ofcourse there are stairs but they are only 10% of the escalators. The most important thing is that, all the escalators are in working condition. I had an opportunity to take 13 escalators in a row to reach on the 24th level of a mall. The maintenance of the escalators is simply marvellous and flawless. There is no single instance that I have seen the escalator not working.

I also went to Genting Highland. This Genting Highland is privately owned by a Chinese person. The hotels in Genting is world class. Out of that, I stayed in Hotel First World. This is the biggest Hotel in the World. It is a Guiness Record Holder. This hotel has 6118 Rooms. Genting Highlands experienced IIFA Awards in 2002. There are two towers of First World, I stayed in Tower 2 at 27th Floor. The technology is used at its maximum. You have express check-in and check-out box here. The waiting hall is a huge one. Casino at the Level 1 is the biggest Casino after Vegas. It takes about 2 to 3 hours to check-in the First World Hotel. Normal check-in time is 2'O Clock.

It was a matter of pleasure and privilege to see the electronic lockers. The casino in Hotel Genting is even bigger than the casino of First World. The Indoor Theme Part of First World is class of its own. Full of lights. You can enjoy Roller Coasters, Car, Electronic Water Boat, Casino, Jackpot, Three Dice, Poker, Three Card Poker, Rud Gullette, Wheel of Fortune. Anybody will just fall in love with such a place. I think Heaven will be the proper word.

On 8th Level, there is a Continental Cafe, where you can get, Thai, Chinese, Continental, Indian food as well. A typical Dahi-Bhaat, Tandoori roti, Biryani, is the best dish one can have in the Shop of Mr.Shaiful on 8th Level. At least once, we shud experience the cleanliness, hygenic condition there in First World.

As far as Non-vegetarian, there is a very bad news, except Chicken Curry and Masala, nothing is available which can be consumed. There is no Mutton served in First World. The Beef Meat and Australian Lamb is served in the category of Mutton.

Dispensation of Justice

Dispensation of Justice is an attribute of GOD. It is a matter of PRIDE, DIGNITY AND HONOUR. Even GOD who has created the human being, does not sit in judgment over his deeds until the human’s death, when only he determines whether he deserves to be sent to hell or heaven. We have been given the authority to sit in the judgment over the deeds of a man in his lifetime. Our pen has the power to grant the freedom of living or the sentence of death to an accused. Our mighty pen can turn riches into rags and pauper into a millionaire.

We the judges thus represents a privileged class and vested with duties of great responsibility, holding offices of public trust. It is often said that our duty is a divine duty and work for it we must follow the CANONS OF JUDICIAL ETHICS. Number of times we have been told to follow the ethics in our work.

Everybody seating here has some fear in their mind about HIGH COURT. There are various sections in the High Court i.e. Judicial, Inspection, Legal, S.I.D. etc. Everybody has been connected with all these sections for the one reason or the other. Everybody present here have some aspirations, dreams in mind and performing duties to the best of the abilities to achieve them. During his routine work, every judge desires to bring some progressive development in his judicial career. But for the overall development, we must think seriously. I would like to mention some of the points helpful for the overall development of a Judicial Officer.

Like the S.I.D. section of our Hon’ble High Court, we must also maintain S.I.D. in ourselves. I referred S.I.D. that means SELF IMPOSED DISCIPLINE. Following are the basic requirements to have SELF IMPOSED DISCIPLINE.

1) To develop the habit of taking action regularly requires self-control.

2) In order to feel motivated to take regular actions you will need a sense of purpose and a clear vision.

3) Even thinking about what you do want and refusing to think about what you don't want requires self control.

4) Your personal growth, career growth and improvement in all areas of your life happen when you are willing to do something today and everyday. Lack of it in one area will affect other areas of your life.

5) Success comes after taking consistent efforts not once in a while but everyday.

6) You face many choices daily and you have control over your actions. But failing to do the right thing can lead to failure. And when the failures accumulate over time your life can turn disastrous.

7) Imposing self-control requires courage. You may have to leave a familiar ground because it involves change.

8) You would have to fight against your inner cravings, your emotions, compulsions and routines.

9) When you are determined to make your life a success you will create a plan of action each day. Success will show up from the many tiny efforts that you put in.

10) You have to maintain and stay focused until your vision becomes a reality. Otherwise the simplest task can seem challenging and you will eventually stop yourself.

11) So if you want something badly you must take continuous action to make it happen. Though the road may seem far and long you can take one step today.

12) When what you do does not work use that as a learning experience and further development. Look for a different way to do it. The number of different things you attempt will affect the results.

13) Persistence is important. Whatever it is that you desire to accomplish will take continuous efforts and time before you feel comfortable. If you keep doing something each day your ability to do it will improve.

14) So whether you like it or not, doing what you should do when you should do it is what discipline is all about.

SELF IMPOSED DISCIPLINE is based on two PRINCIPLES.

1) It requires continuous consciousness-alertness-awareness, staying fully awoke and alive at all times,

2) It requires putting yourself in a situation that will always demand upfront accountability.

This year doesn't have to end the same way as it did last year for us. Many of us wrote many beautiful well-thought out plans, but found them still tucked away in our journals, notebooks, or saved on our computers at the end of the year, revisiting them once more, asking ourselves the same old questions that we have asked ourselves year after year: Who are you accountable to in your life other than yourself ? Whom do you report to ? where did I go wrong ? What happened to me ? How did I get so far off track ? What's wrong with me that I can't stay on point and fulfill my dreams ?

There are 12 months. I want you to pause and think about that - "12 months." Can we stay consciously aware of our dream plans to make it to the finish line? Are we willing to be held accountable for our actions by deliberately seeking those who have already achieved what we want to achieve and allow them to guide us and mentor us through our dreams into a physical reality. Let us cross the finishing lines of greatness together this year.

During all this process to cross the finishing lines of greatness, don’t forget that we are human beings, having brain as well as heart. I quote one phrase here, “NEVER BECOME SO INTELLIGENT, NEVER BECOME SO HIGH, NEVER BECOME SO WISE, THAT SOME DAY NO ONE MAY BE ABLE TO SEE THE HUMAN IN YOU”. It is necessary that judges must remain humane and considerate. We have been vested with divine duties but we would never attain divinity. We are mere agents of the superior power that controls us to do justice between man and man.

We must also keep in mind, that we should not invite cases on ourselves, from our family members, as regards their maintenance and restitution of conjugal rights.

Now judiciary has provided laptop and net connection to each one of us. We must take the best use of this technology. We must not complained about good old home library. Now a days there are several free websites available on internet, and all the acts, precedents, articles, journals are just mouse click away. The world of internet is at its peak, its database, is much more than the human being can think.

Hon’ble Shri Justice R.C. Lahoti, Retired C.J.I. in his one of the speech THE CULTURE OF A JUDGE, has enumerated 10 lessons for us. I am reproducing it as below.

1) Maintain a Good Physique and Sound Health

2) Value the time

3) Simple Living

4) Choose your company cautiously

5) Read Literature

6) Continuing Education

7) Develop a Hobby

8) Be prompt

9) Respect and regard your court room as a TEMPLE OF JUSTICE

10) A Triple Mantra which is most important

(a) never say anything about anybody in his absence which if asked to repeat in his presence you will not do

(b) never condemn anyone by words spoken and by words written both at the same time

(c) discharging administrative or judicial functions, let the justice be never divorced from mercy.

If we follow the SELF IMPOSED DISCIPLINE and above 10 LESSONS then we can certainly bring change in our ATTITUDE in POSITIVE manner.

While summing up, I would like to recite one prayer, which is meant for us and everyone can begin our day with this prayer.

“OH GOD, GIVE ME COURAGE, TO CHANGE THE THINGS I CAN CHANGE

GRANT ME SERENITY, TO ACCEPT THE THINGS I CANNOT CHANGE

AND THE WISDOM TO KNOW THE DIFFERENCE”.

SPECIFIC PERFORMANCE OF CONTRACT

WHEN SPECIFIC PERFORMANCE OF CONTRACT

SHOULD BE GRANTED AND WHEN SHOULD IT BE REFUSED.

EXTENT OF DISCRETION AND MANDATORY

PROVISIONS RELATING TO DAMAGES AND

COMPENSATION

Specific Relief Act was originally embodies in 1877. The Act of 1877 is not exhaustive. For many decades the Act of 1877 was subjected to judicial interpretation revealing in that process many deficiencies and lacunae and giving rise in several instances to divergencies and cleavages of judicial opinion. The Law Commission appointed by the President of India after the advert of the New Constitution addressed itself to his task at its very first meeting held on 17^th September, 1955. The recommendation of the commission were embodied in its Ninth Report which was forwarded to the Government of India on 19^th July, 1958. They culminated in the passing of the Specific Relief Act of 1963 which came into force from 1^st day of March, 1964.

As observed by Pollock and Mulla in “the Specific Relief Act” the law of Specific Relief in its essence part of the law of procedure, for specific relief is a form of judicial process. Such right is discretionary for a court to grant an interest in land to be recognised cannot be at the discretion of the court nor be taken away by it.

The basic principle embodied in the Specific Relief Act as regards grant and refusal of specific performance is a matter of discretion of the court. It is to be exercised on sound judicial principles.

Section 10 – Cases in which specific performance contract enforceable :- Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced --

a when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed, be done; or

b when the act agreed to be done in such that compensation in money for its non-performance would not afford adequate relief.

Explanation :- Unless and until the contrary is proved, the court shall presume -

(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and

(ii) that the breach of a contract to transfer movable property can be so relieved except in the following cases :-

(a) where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market;

(b) where the property is held by the defendant as the agent or trustee of the plaintiff.

The very foundation of the jurisdiction to decree specific performance of contracts is that an award of damages does not afford the aggrieved party a complete remedy and put his in a situation as beneficial as if the contract is specifically enforced. If in the opinion of the Court damages will be an adequate remedy, specific performance of the contract cannot be decreed.

Section 14 :- Contracts not specifically enforceable – (1) The following contracts cannot be specifically enforced, namely -

(a) a contract for the non-performance of which compensation in money is an adequate relief;

(b) a contract which runs into such minute or numerous details or which is so dependant on the personal qualifications or violation of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms;

(c) a contract which is in its nature determinable;

(d) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise.

As per section 20 the jurisdiction to decree the specific performance is discretionary and the court is not bound grant such relief merely because it is lawful to do so; but the discretion but sound and reasonable guided by judicial principle and capable of correction by a court of appeal. Section 20 (2) contemplates the contingencies in which discretion not to decree a specific performance can be exercised.

Section 20 - Discretion as to decreeing specific performance -

(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or

(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff;

(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.

Hon'ble Supreme Court in case M.Meenaxi & others -versus- Metadin Agrawal (decased) by LR's reported in 2006 (8) SCJ 509, has held that,

“Section 20 of the Specific Relief Act, confers a discretionary jurisdiction upon the courts. Undoubtedly such discretion cannot be refused to be exercised on whims and caprice; but when the passage of time contract becomes frustrated or in some cases increase in the prices of land takes place, the same being relevant factors can be taken into consideration for the said purpose while refusing to exercise it's jurisdiction courts are not precluded from taking into consideration the subsequent events. Only because the plaintiff respondents ready and willing to perform their part of contract and even assuming that the defendant was not entirely vigilant in protecting their rights same cannot be ground for granting a specific performance”.

As per section 21 of the Specific Relief Act, the courts are empowered to award compensation in certain cases .

On plain reading of the section it appears that a compensation may be awarded only when following three conditions are satisfied.

1) The court must decide that specific performance ought not to be granted;

2) There must be a contract between the parties which must have been broken by the defendant against whom the compensation is to be granted; and

3) The plaintiff must have proved his right to the compensation to be awarded.

A claim for damages in lieu of specific performance is different from a claim to damages for breach of the contract. If it is in lieu of specific performance the plaintiff has to allege and prove readiness and willingness on his part to perform his part of the contract. This remedy cannot be granted if the remedy of specific performance is abandoned. The claim for damages for breach of contract is different and may be enforced even if the claim to specific performance is abandoned. The Court has jurisdiction to grant the relief of damages for breach of contract even if the plaintiff has abandoned the relief of specific performance. In addition to granting specific relief, court has power to grant some compensation. Where the claim to damages is based upon the breach of the contract and recession by the plaintiff, the plaint should make allegations appropriate to such an action.

CONCLUSION

Grant of specific performance by the court is purely discretionary relief and therefore court must adhered to the facts and circumstances of each case with sound judicial principles.

Issue of Process

Issue of Process by Criminal Court, Postponement of it far holding an inquiry and When can a cognizance be said to be taken

Chapter XII of the Code of Criminal Procedure 1973 deals with information to the Police, and their powers to investigate. Section 156(1) vests in an officer in charge of a Police Station the power to investigate any cognizable case, without the order of a Magistrate, Section 156(3) authorities a Magistrate, empowered under section 190, to order an investigation as mentioned in Section 156(1). The provisions from section 157 onwards are concerned with the power and procedure for investigation.

Chapter XIV of the code deals with conditions requisite for initiation of the proceedings. Section 190 authorise the Magistrate to take cognizance (a) upon receiving the complaint of facts which constitutes such offence, (b) upon a police report of such facts and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

Chapter XV (Section 200 to 203) of the Code deals with “complaints to Magistrates”. A Magistrate taking cognizance of an offence on complaint is required by S.200 to examine upon oath the complainant and the witnesses present, if any. Section 202 provides that a Magistrate taking cognizance of a case upon complaint, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Section 203 empowers the Magistrate to dismiss the complaint, if, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is on the opinion that there is no sufficient ground for proceeding.

Chapter XVI deals with “commencement of proceedings before Magistrate” and Section 204 enables a Magistrate to issue summons or a warrant as the case may be to secure the attendance of the accused if in the opinion of the Magistrate taking cognizance of the offence there is sufficient ground for proceeding.

It is seen from the provisions referred to above, on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under section 200.

Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under section 203. If in his opinion there is sufficient ground for proceeding he may issue process under section 204. However, if he thinks fit, he may postpone the issue of process and either inquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is not sufficient ground for proceeding.

On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under section 156(3). The police will then investigate and submit a report under section 173(1) of the code.

On receiving the police report the Magistrate may take cognizance of the offence under section 190(1)(b) and straightway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The police report under section 173 will contain the facts discovered or unearthed by the police and the conclusions drawn by the police and he may decide to issue process even if the police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the police report may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under section 200 of the code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under section 156(3) and received a report under section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from the proceeding under section 200, 203, 204 of the code.

Thus a Magistrate who on receipt of a complaint orders an investigation under section 156(3) and receives police report under section 173(1) may thereafter do one of three things:-

1 He may decide that there is no sufficient ground for proceeding further and drop action.

2 He may take cognizance of the offence under section 190(1)(b) on the basis of police report and issue process, this he may do without being bound in any manner by conclusion arrived at by the police in their report,

3 He may take cognizance of the offence under section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complaint and his witnesses under section 200. If he adopts the third alternative he may hold or direct an inquiry under section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process as the case may be.

When the offence complained of is triable exclusively by court of session he has no other way but to call upon the complainant to produce all his witnesses and examine them on oath.

INJUNCTION INTERIM

INJUNCTION INTERIM

WHEN TO BE REFUSED OR GRANTED

Interlocutory injunction are those issue at any time during the pendancy of the litigation for the short term purpose of preventing irreparable injury to the petitioner prior to the time that the court will be in a position to either grant or deny permanent relief on the merit. In accordance with their purpose, interlocutory injunction are limited in duration to some specified length of time, or at the very outside, to the time of conclusion of the case on the merits. Within the category of interlocutory injunction there are two distinct types which must be considered individually. The first is generally referred to as a preliminary injunction, and includes any interlocutory injunction granted after the respondents has been given notice and opportunity to participate in a hearing on whether or not that injunction should issue. The second is generally referred to as a temporary restraining order and differs from preliminary injunction primarily in that it is issued exparte, with no notice or opportunity to be heard granted to the defendant. Temporary restraining order supply the need for relief in those situation in which the plaintiff will suffer irreparable injury if relief is not granted immediately, and time simply does not permit either the delivery of the notice or the holding of a hearing.

In general sense every order of the court which command or forbids is a injunction; but in its accepted legal sense, an injunction is a judicial process or mandate operating in personam by which, upon certain established principles of equity a party is required to do or refrain from doing a particular thing. An injunction has also been defined as a writ framed according to the circumstances of the case commanding an act which the courts regards as essential to justice or restraining an act which it estimes contrary to equity and good conscience; as a remedial writ which court issues for the purpose of enforcing their equity jurisdiction; and as a writ issuing by the order and under the seal of a court of equity.

The general rule in India litigation is that a party gets no relief till he has gone to trial and persuaded to the court that he has a right which has been infringed. He is not entitled to an interlocutory injunction, just because he has a strong case. He is only so entitled if it is shown that there could be injustice if the defendant is left unfettered and that there is a serious risk of irreparable damage to the plaintiff. In the first place the plaintiff should show that there is some serious need for the defendant to be restrained.

Following from this, the three classic requirements or deciding factors before an injunction can be granted are

(a) prima facie case

(b) balance of convenience

(c) irreparable injury caused to the affected party.

(a) PRIMA FACIE CASE

The aggrieved party must be able to establish that he has a prima facie case in support of the right claimed by him, that is the court must be satisfied that there is a bona fide dispute raised by the applicant, that there is a strong case for trial which needs investigation and a decision on merits. Courts have pointed out that at the stage of granting interim relief,

(a) they should avoid a mini-trial and

(b) should only look at whether the applicant's case is not vexatious or frivolous and whether it deserves to go to trial or not. the applicant is not required to also prove that he has a good chance of winning the case altogether when the case reaches the stage of trial. And to determine if there is a prima facie case, the court must make reference to all the documents available such as plaint, affidavits, applications and other material placed at its disposal and see whether the applicant has a better chance of success or not as compared to the other party's chances of success.

(b) DOCTRINE OF BALANCE OF CONVENIENCE

The court must also be satisfied that the balance of convenience is in the applicant's favour. The balance of convenience will tilt in favour of that party which is put to greater inconvenience; if injunction is refused/granted and later the suit is decreed/dismissed respectively. In balancing the comparative conveniences/inconveniences from granting/refusing injunction, the court will take into consideration what means it has of putting the party who may be ultimately successful in the position he would have stood if his legal rights had not been interfered with.

The governing principle is to first consider if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant;s continuing to do what was sought to be enjoined between the time of the application and the time of the trial.

(c) IRREPAIRABLE INJURY

The applicant must further satisfy the court that he is bound to suffer irreparable damage if injunction is not granted and that there is no other remedy available to him and it is of such nature that cannot be simply monetarily compensated. Therefore, if injunction is not granted and later the suit is decreed, the court will ask the defendant to compensate the applicant for whatever loss was caused to the plaintiff by being barred from exercising his right. But it may so happen, that the defendant will be in no position to compensate that loss, arising either out of his own inability to pay or due to the nature of the injury caused.

Thus, the extent to which the disadvantages to each party would be incapable of being compensated in damages in the even of his succeeding at the trial is always a significant factor in assessing where the balance of convenience lies; and if the extent of the uncompensatable disadvantage to each party would not differ widely, it may not be improper to take into account in tipping the balance the relative strength of each parti's case as revealed by the affidavit evidence adduced on the hearing of the application.

EXCEPTIONAL CIRCUMSTANCES

Mostly, the courts are reluctant to conduct a mini-trial at the stage of granting injunction. But depending upon the particular circumstances of individual cases exceptions have been created. In case of industrial disputes, where there is a strike,with picketing, blocking etc., the plaintiff;s business is greatly injured; the courts invariably assess the relative strength of each party's case and grant or refuse an injunction accordingly.

The apex court in Dalpat Kumar -vs- Prahlad Singh reported in AIR 1993 Supreme Court 276, laid down that the existence of the prima facie right and infraction of the enjoyment of property or the right is a condition for the grant of temporary injunction. Prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. the court further has to satisfy that non-interference by the court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction. Thirdly, the court should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties.

CONCLUSION

For a considerable period of time, primal facie case was given undue importance. It assisted the parties to arrive at an earlier view on prospects and thus reduce costs of litigation based on the logic that the petitioner was very likely to succeed at the end of the day, it will be convenient to grant interim interdict and prevent the defendant from infringing his rights.

PLEA OF ADVERSE POSSESSION

PLEA OF ADVERSE POSSESSION

WHAT IS REQUIRED TO BE PROVED

Possession is a branch of law of property. Acquisitiveness and possessiveness are basic instincts of man which are founded on economic needs, amongst others. Possession has always been a means of acquiring title to property. It was the earliest means recognized by mankind of appropriation of anything tangible by one person for his own use to the exclusion of others, and legislators and publicists have always acknowledged its efficacy in confirming and creating title.

“nec vi, nec clam, nec precario” is the basic principle which says that the possession must be a peaceful, open and continuous possession.

The Courts in India, have held that the intention to claim exclusive possession in hostility against the possession of true owner makes said possession adverse. Thus animus possidendi must be evidence by the manner of occupancy which again depends upon the nature of the property. The trespasser must be in actual physical possession of the property over a sufficiently long period; that possession must be to the knowledge, either express or implied of the owner or without any attempt at concealment and which contains an element of animus possidendi. It is such possession which becomes juridical possession, that is protected by law, even against the true owner. “Legal Possession”, “Juridical Possession”, “Possession in law”, means the same thing.

Trespasser in settled possession has the same protection of law, though his possession is wrongful in its origin. A tenant whose tenancy has been determined, though in the contemplation of law he is a trespasser, in as much as he is in possession without the owner's consent, has clear protection of law in retaining possession, till he is evicted in due course of law, through the machinery of the Courts. His possession is not like that of a squatter, but legal or juridical.

Possession is single and exclusive. It is indivisible. Two persons cannot, at the same time, have possession of a thing, except jointly or in common. In the case of joint owners there is unity of title and unity of possession. In the case tenants in common there is unity of possession but the titles are according to individual rights of each co-sharer.

Law of limitation and prescription are founded on the reasons of public policy. In nearly every system of law it is recognized that, if a person has been in possession of a thing, for a considerable time, defects in his title and manner of acquiring ownership are cured. The justification for this institution is to be found in inconvenience and hardship of disturbing a possession which has been long enjoyed.

Mere possession however long does not necessarily means that it is adverse to true owner and adverse possession means hostile possession which is expressly or impliedly in denial of title of true owner.

Hon'ble Supreme Court in T.Anjanappa & others -v- Somalingappa & another, reported in 2006(3) CCC 328, has held that,

“The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to e adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property.

Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.

It is well recognized proposition in law that mere possession however long does not necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the formers hostile action.

CONCLUSION :

Adverse possession implies that it commenced in wrong, and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to contract, it cannot be adverse. Mere possession for howsoever length of time does not result in converting the permissible possession into adverse possession. Intention to dispossess on the part of the adverse possessor is essential to prove adverse possession.