When counsel reports no instructions, it is the duty of the Court to issue notice to the party concerned before proceeding further in the matter

Every litigant ought to be afforded an opportunity of deciding the issue involved on merits without the same being scuttled on mere technicalities

    In the said backdrop, if the decision in Smt. Garuda Sakuntala (supra), as relied upon by the learned advocate for the appellants - plaintiffs is taken into consideration, it held therein that, 'Past conduct of a party regarding default in appearance cannot be taken into consideration while deciding the question as to whether there was 'sufficient cause' for non- appearance of the party on a particular subsequent date i.e. the date on which the latest default is committed. The Court below is not justified in adverting to the previous conduct of the appellant/plaintiff while refusing to set aside the default dismissal order. The Court below ought to have considered whether there was sufficient cause for the absence of the appellant/plaintiff on 15.2.1993 only, and not the previous conduct of the appellant. Hence, the contention of the counsel for respondents, that in view of the previous conduct of the appellant in not attending the court the lower court is right in dismissing the suit for default, cannot be accepted'. It is further held that, 'Apart from that, admittedly, the appellant/plaintiff engaged an advocate to represent her case, and it appears that the said advocate did not make any representation on behalf of the appellant/plaintiff. When the counsel reports no instructions, it is the duty of the Court to issue notice to the party concerned before proceeding further in the matter. In this case, no notice is issued to the appellant/plaintiff by the court below to that effect. On this ground also, the order under appeal is liable to be set aside'. The Court has observed that, 'Dismissal of a suit for default of the plaintiff shall always be resorted to by the courts with utmost circumspection. Before passing such default dismissal order, the Courts should keep in view the hardship that may be caused to the plaintiff in deserving cases, of course with exceptions depending on the fact-situation of a given case, because the dismissal of a suit for default of plaintiff operates as a bar for bringing a fresh suit on the same cause of action. The procedural laws are intended to do substantial justice between the parties and not to penalize the parties'. Thus, as observed in the aforesaid decision, it is the

duty of the Court to issue notice to the party concerned before proceeding further in the matter and before passing such default dismissal order, the Courts should keep in view the hardship that may be caused to the plaintiff in deserving cases, of course with exceptions depending on the fact-situation of a given case, because the dismissal of a suit for default of plaintiff operates as a bar for bringing a fresh suit on the same cause of action. In the case on hand also, the learned advocate representing the appellants - plaintiffs did not remain present as not keeping well and eventually, the suit came to be dismissed for default, however, no prior notice appears to have been issued to the appellants - plaintiffs.[Para No.6.2]

    Adverting to the facts of the present case, the learned trial Judge has dismissed the suit for default for want of prosecution and by way of impugned order, also dismissed the application for restoration of the said suit. It was the case of the appellants - plaintiffs that since the learned advocate representing the case of the appellants - plaintiffs before the trial Court was not keeping well, he did not remain present before the Court on the date so appointed, however, the learned trial Judge did not appreciate the said fact and considering the past conduct viz. non- appearance of appellants - plaintiffs dismissed the suit for default observing that the suit is aged 10 years. It is settled law as reflected in the decision in Smt. Garuda Sakuntala (supra) that past conduct of a party regarding default in appearance cannot be taken into consideration while deciding the question as to whether there was 'sufficient cause' for non-appearance of the party on a particular subsequent date i.e. the date on which the latest default is committed and the Court below is not justified in adverting to the previous conduct of the appellant/plaintiff while refusing to set aside the default dismissal order. Further, as held therein, when the counsel reports no instructions, it is the duty of the Court to issue notice to the party concerned before proceeding further in the matter. In this case, indisputably, the learned trial Judge has taken into consideration the past conduct of the appellants - plaintiffs while dismissing the suit for default and admittedly, no prior notice appears to have been issued to the appellants - plaintiffs by the learned Court below to that effect.[Para No.6.5]

Cr.P.C. does not provide any provision for service of summons through Whatsapp

Going by Section 65 of Cr.P.C, if service could not be effected as provided under Section 62, the serving officer shall affix one of the duplicates of the summons to the conspicuous part of the house or homestead in which the person summoned ordinarily resides. Thereafter, the court should make such enquiries as it thinks fit and either declare the summons to have been duly served or order fresh service in such manner as it considers proper. As per Rule 7 of the Criminal Rules of Practice, Kerala, summons issued to the accused and witnesses shall ordinarily be signed by the Chief Ministerial Officer of the Court and the words “By order of the Court” shall invariably be prefixed to the signature of the Ministerial Officer. [Para No.3]

    The above provisions do not provide for service of summons through WhatsApp.

No doubt, the revolutionary changes in the field of communication calls for a more pragmatic approach regarding the mode and manner of service of summons. In this regard, it may be pertinent to note the insertion of Section 144 in the Negotiable Instruments Act (for short, 'the Act') for the purpose of overcoming the delay in serving summons on the accused in complaints under Section 138 of the Act. Section 144, providing for service of summons by speed post or by approved courier service, was inserted by Act 55 of 2002.[Para No.4]

Judicial discretion cannot be so liberally exercised as to condone the delay where no cause is made out or the cause ascribed is unworthy of acceptance

The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one

    A profitable reference in this context can be made to a judgment of the Supreme Court in the case of Balwant Singh (dead) Vs. Jagdish Singh and others, 2010(8) Supreme Court Cases 685, wherein after adverting to a number of precedents, including the judgment in the case of Perumon Bhagwathy Devaswom (supra), the Supreme Court cautioned against construing the provisions of the Order XXII of the Code and Section 5 of the Limitation Act in such a manner as to render them redundant and inoperative.[Para No.17]

    The observations of the Supreme Court in paragraphs 32 to 35 and 38 are instructive. They read asunder:

“32. It must be kept in mind that whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly.

    Furthermore, it is also a well settled canon of interpretative jurisprudence that the Court should not give such an interpretation to the provisions which would render the provision ineffective or odious. Once the legislature has enacted the provisions of Order 22, with particular reference to Rule 9, and the provisions of the Limitation Act are applied to the entertainment of such an application, all these provisions have to be given their true and correct meaning and must be applied wherever called for. If we accept the contention of the Learned Counsel appearing for the applicant that the Court should take a very liberal approach and interpret these provisions (Order 22 Rule 9 CPC and Section 5 of the Limitation Act) in such a manner and so liberally, irrespective of the period of delay, it would amount to practically rendering all these provisions redundant and inoperative. Such approach or interpretation would hardly be permissible in law.

34. Liberal construction of the expression ‘sufficient cause' is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the Court should condone the delay; equally there would be cases where the Court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect “sufficient cause” as understood in law. (Advanced Law Lexicon, P. Ramanatha Aiyar, 2nd Edition 1997).

35. The expression “sufficient cause” implies the presence of legal and adequate reasons. The word “sufficient” means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the Courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated.

36…………………………………………………………….

37…………………………………………………………….

38. Above are the principles which should control the exercise of judicial discretion vested in the Court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this,the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The 

statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equi-benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the Court would be inclined to condone the delay in the filing of such applications.”[Para No.18]

No contract employee has any vested right to continue or to have his or her contract renewed

From the aforesaid observations which have been made by the Apex Court on the status of honorary employment in the service, it appears to this Court that it is not open for the petitioner to claim any relief, as tried to be sought in the present proceedings. Since throughout has accepted the status as honorary Medical Officer purely on contractual basis with open eyes and continued to discharge without any demur and throughout even during the extended period of his contract, the basic terms and conditions have remained unchanged. That being the position, it appears to this Court that hardly any case is made out by the petitioner to call for any interference to grant any relief as prayed for.[Para No.14]

    Additionally, it is a settled position of law that the contractual employment has no any vested right to continue

nor normally it is open for the Court to give any mandate to an employer to continue the contract or to change the status of the contractual employment in any manner. Once the same having been accepted by consent of both the sides without any demur and as such, the relevant observations contained in the following decisions of the Apex Court with regard to the status of even contractual employment, the Court would like to incorporate hereunder some of the relevant observations mentioned in the following decisions:

(1) In the case of Yogesh Mahajan Vs. Professor R.C. Deka, Director, All India Institute of Medical Sciences, reported in (2018) 3 SCC 218, Hon'ble the Apex Court has observed in para 6,7 and 8 as under:

6. It is settled law that no contract employee has a right to have his or her contract renewed from time to time. That being so, we are in agreement with the Central Administrative Tribunal and the High Court that the petitioner was unable to show any statutory or other right to have his contract extended beyond 30th June, 2010. At best, the petitioner could claim that the concerned authorities should consider extending his contract. We find that in fact due consideration was given to this and in spite of a favourable recommendation having been made, the All India Institute of Medical Sciences did not find it appropriate or necessary to continue with his services on a contractual basis. We do not find any arbitrariness in the view taken by the concerned authorities and therefore reject this contention of the petitioner.

7. We are also in agreement with the view expressed by the Central Administrative Tribunal and the High Court that the petitioner is not entitled to the benefit of the decision of this Court in Uma Devi. There is nothing on record to indicate that the appointment of the petitioner on a contractual basis or on an ad hoc basis was made in accordance with any regular procedure or by following the necessary rules. That being so, no right accrues in favour of the petitioner for regularisation of his services. The decision in Uma Devi does not advance the case of the petitioner.

8. Insofar as the final submission of the petitioner to the effect that some persons were appointed as Technical Assistant (ENT) in May 2016 is concerned, we are of the view that the events of 2016 cannot relate back to the events of 2010 when a decision was taken by the All India Institute of Medical Sciences not to extend the contract of the petitioner. The situation appears to have changed over the last six years and the petitioner cannot take any advantage of the changed situation. There is no material on record to indicate what caused the change in circumstances, and merely because there was a change in circumstances, does not mean that the petitioner is entitled to any benefit. On the other hand, it might have been more appropriate for the petitioner to have participated in the walk in interview so that he could also be considered for appointment as Technical Assistant (ENT), but he chose not to do so.

Even illegally obtained document is admissible in evidence if it is relevant and genuine one

The complaint was initially made in respect of acquiring huge immovable properties by respondent No. 2 in his name and in the name of his wife, and the Central Government had asked the State Government to conduct an inquiry into the said allegations. The complaint may be forged or fabricated, but it is nobody’s case that the copies of sale deeds annexed alongwith the said complaint were not genuine. While issuing direction to hold inquiry/investigation as to who had fabricated the said complaint and forged the signatures of Shri M.A. Khan, M.P., the allegations of acquiring properties by the respondent No.2 have been abandoned and unattended altogether.

    Even though the complaint was bogus, however, the sale deeds annexed alongwith the same though illegally collected by someone, have not been found to be fabricated documents.[Para No.26]

    It is a settled legal proposition that even if a document is procured by improper or illegal means, there is no bar to its admissibility if it is relevant

and its genuineness is proved. If the evidence is admissible, it does not matter how it has been obtained. However, as a matter of caution, the court in exercise of its discretion may disallow certain evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. More so, the court must conclude that it is genuine and free from tampering or mutilation. This court repelled the contention that obtaining evidence illegally by using tape recordings or photographs offend Articles 20(3) and 21 of the Constitution of India as acquiring the evidence by such methods was not the procedure established by law. (Vide: Yusufalli Esmail Nagree v. The State of Maharashtra, AIR 1968 SC 147; Magraj Patodia v. R.K. Birla & Ors., 1970 (2) SCC 888; R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157; Pooran Mal v. Director of Inspection, Income-Tax, New Delhi & Ors., AIR 1974 SC 348; and State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600).[Para No.27]

Non-production/withholding a vital document in order to gain an advantage on the other side tantamounts to playing fraud on the Court

No litigant is entitled to obtain the aid of the law to protect him in carrying out a fraudulent act

    The most sagacious judgments of our Courts define "fraud" as an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a sort of cheating intended to gain an advantage. Any litigant who approaches Court is bound to produce all the documents relevant, material and germane to the litigation. Non-production or non-mentioning or withholding a vital document in order to gain an advantage on the other side

tantamounts to playing fraud on the Court as well as the opposite party [S.P. Chengalvaraya Naidu vs. Jagannath & Ors (1994) 1 SCC 1 (paras-1,5 & 6), A.V. Papayya Sastry & Ors. vs. Govt. of A.P. & Ors. (2007) 4 SCC 221 (paras 21-33), K.D. Sharma vs. Steel Authority of India & Ors. (2008) 12 SCC 481 (paras-26-28 & 34-52) and Dalip Singh vs. State of Uttar Pradesh & Ors. (2010) 2 SCC 114 (paras 1- 9)].[Para No.12]

    This fact of suppression assumes more significance in a writ proceeding which has been instituted under Article 226 of the Constitution. The very basis of writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted the very functioning of the Writ Courts would become impossible. The jurisdiction of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. It is well settled that a prerogative remedy is not a matter of course and it is thus of utmost importance that a petitioner approaching the Writ Court must come with clean hands and put forward all the material facts without concealment or suppression. It there is no frank and candid disclosure of the relevant and material facts or that the petitioner is guilty of misleading the Court and the petition is liable to be dismissed. In fact, the Courts have gone to the extent of saying that in such circumstances, a Court may refuse to enter into the merits of the case. A party whose hands are soiled cannot hold the writ of the Court. In such situations, the aid of the Court is denied in order to maintain respect for the law; in order to promote confidence in the administration of justice; in order to preserve the judicial process from contamination (Miscellany-at-Law by R.E. Megarry, 2nd Indian Reprint 2004 at page-144). The rule has evolved in public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. In the facts and circumstances aforesaid and in the light of the prayers in the petition, I am of the view that the petitioners are guilty of misleading the Court and have deliberately, intentionally and mischievously suppressed the order dated 28 January, 2011 passed in Misc. Case No.26/2009.[Para No.13]

Testamentary disposition by Will is not a 'transfer' as defined u/s.5 of the Transfer of Property Act

It is not necessary to obtain a probate in respect of properties which are not situated whithin the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay

    In view of the rival submissions made on behalf of the parties, it will be necessary to refer to some of the provisions of the Ceiling Act and the Succession Act. Section 29 of the Ceiling Act reads thus:-

"Section 29. (1) Without the previous sanction of the Collector, no land granted under Section 27 or granted to a joint farming society under Section 28 shall be -

(a) transferred, whether by way of sale (including sale in execution of a decree of a Civil Court or of an award or order of any competent authority) or by way of gift, mortgage, exchange, lease or otherwise; or

(b) divided whether by partition or otherwise, and whether by a decree or order of a Civil Court or any other competent authority, such sanction shall not be given otherwise than in such circumstances, and on such conditions including condition regarding payment of premium or nazarana to the State Government, as may be prescribed;

    Provided that, no such sanction shall be necessary where land is to be leased by a serving member of the armed forces or where the land is to be mortgaged as provided in Sub-section (4) of Section 36 of the Code for raising a loan for effecting any improvement of such land.

(2) If sanction is given by the Collector to any transfer or division under Sub-section (1) subsequent transfer or division of land shall also be subject to the provisions of Sub-section (1).

(3) Any transfer or division of land, any acquisition thereof, in contravention of Sub-section (1) or Sub-section (2) shall be invalid; and as a penalty therefor, any right, title and interest of the transferor and transferee in or in relation to such land shall, after giving him an opportunity to show cause, be forfeited by the Collector and shall without further assurance vest in the State Government."

    This Court in the aforesaid case of Vimlabai vs. State of Maharashtra, cited supra, after considering the judgments on the point, has held that the transfers which are by act of parties made inter vivos or a result of a decree or an order of the Court, Tribunal or Authority, are alone covered by the said term as defined in Explanation (2) of Section 8 of the Ceiling Act. This Court has further held that it will not include the testamentary dispositions of the property not made inter vivos. Thus, this Court has taken a view that a testamentary disposition by Will is not covered by the word 'transfer' as per the provisions of Section 5 of the Transfer of Property Act. This Court has further while dealing with the certain provisions of the Ceiling Act has in unequivocal terms held that the transfer under the Ceiling Act would not include the testamentary disposition of the property not made inter vivos. In that view of the matter, insofar as the findings of the learned S. D. O. that the transfer is bad in law in view of provisions of Section 29(3) of the said Act is not sustainable in law.[Para No.6]

    The next question that arises is whether it is necessary to obtain a probate, so as to claim right as executor or legatee for the lands in question.[Para No.7]

    It would be appropriate to refer to certain provisions of the Succession Act. The relevant portion of Section 213 reads as under:-

"S. 213. Right as executor or legatee when established. - (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.

Death caused; without any premeditation, in a sudden fight, in the heat of passion, without taking any undue advantage or acted in a cruel or unusual manner, is not a murder

Admittedly, both the parties belonged to the same family and reside in the same campus and their relation was also not cordial due to property dispute. What is evident from the testimony of the PW-2 and PW-12 is that when the appellant was washing his face in the morning, the PW-2 (son of the deceased) initiated the quarrel by challenging the appellant to lodge complaint before the villagers for cutting their paddy, whereupon the appellant came out with the pistol and challenged the deceased to come out and also hurled abuses at him (deceased) and the deceased also came out and challenged him by saying as to why was he shouting and creating noise. From the testimony of the PW-12, it is also discernible that at the beginning when the PW-2 challenged the appellant for the previous incidence of cutting paddy, the appellant did not have the armed with him and in course of the exchange of words he came out with the pistol. From the above evidence, it has been established that the accused, who was a retired Air Force personnel having a licensed pistol shot the deceased in the heat of passion in course of sudden quarrel and as such it is difficult to say that the act of the appellant causing death of the deceased was pre-meditated. When evidently the appellant inflicted the injury causing death of the deceased without any pre-meditation and in the heat of passion during sudden quarrel, the appellant could not have been held liable for offence of murder. However, the facts and circumstances under which the appellant inflicted the injury causing death of the deceased, he shall be liable for committing an offence of culpable homicide not amounting to murder under Section 304 IPC.[Para No.28]

    In Rajender Singh v. State of Haryana (supra) in a similar facts situation the Apex Court converted a conviction under Section 302 IPC to 304 IPC, held as under:

"19. Consequently, we are convinced that since the death of Suraj Mal and Shri Ram had occurred due to the firing resorted to as part of his self-defence, the same would amount to culpable homicide not amounting to murder, which was committed without any premeditation in a sudden fight in the heat of passion

upon a sudden quarrel and that the offender did not take undue advantage or acted in a cruel or unusual manner, which would normally fall under Exception 4 of Section 300 IPC. Consequently, at best, conviction of the appellant can only be under Part II of Section 304 IPC for which he could have been inflicted with a punishment of ten years. For the very same reason, the conviction imposed under Section 27 of the Arms Act cannot also be sustained. It is stated that the appellant is suffering the sentence in jail and has so far suffered eleven years. The conviction is modified into one under Section 304 Part II and the sentence already suffered by the appellant is held to be more than sufficient."[Para No.29]

It is appropriate case for grant of anticipatory bail when F.I.R. is lodged by way of counterblast to an earlier F.I.R lodged/complaint filed by the accused against the informant in near proximity of time

The following can be considered as "appropriate cases" for grant of anticipatory bail to an accused apprehending arrest, even after submission of charge-sheet against the accused by the Investigating Officer of the police/after taking cognizance of offence against accused under Section 204 Cr.P.C. by the Court :-

1) Where the charge-sheet has been submitted by the Investigating Officer/cognizance has been taken by the Court, but the merits of the F.I.R/complaint that has been lodged by the informant/complainant are such that it cannot be proved against the accused in the Court;

2) Where there exists a civil remedy and resort has been made to criminal remedy. This has been done because either the civil remedy has become barred by law of limitation or involves time-consuming procedural formalities or involves payment of heavy court fee, like in recovery suits.

    The distinction between civil wrong and criminal wrong is quite distinct and the courts should not permit a person to be harassed by surrendering and obtaining bail when no case for taking cognizance of the alleged offences has been made out against him since wrong alleged is a civil wrong only.

    When the allegations make out a civil and criminal wrong both against an accused, the remedy of anticipatory bail should be considered favourably, in case the implication in civil wrong provides for opportunity of hearing before being implicated and punished/penalized. The criminal remedy, in most of the cases, entails curtailment of right to liberty without any opportunity of hearing after lodging of complaint and F.I.R under the provisions of Cr.P.C. which is pre-independence law and disregards Article 14 and 21 of the Constitution of India. Therefore, in such cases where civil and criminal remedy both were available to the informant/complainant, and he has chosen criminal remedy only, anticipatory bail should be favourably considered in such cases.

3) When the F.I.R/complaint has clearly been lodged by way of counterblast to an earlier F.I.R lodged/complaint filed by the accused against the informant/complainant in mear

proximity of time. The motive of lodging the false F.I.R/complaint is apparent and from the material collected by the Investigating Officer or from the statements of witnesses in complaint case, there is no consideration of the earlier F.I.R lodged/complaint filed by the accused against the informant/complainant;

4) Where the allegations made in the F.I.R/complaint or in the statement of the witnesses recorded in support of the same, taken at their face value, do not make out any case against the accused or the F.I.R/complaint does not discloses the essential ingredients of the offences alleged;

5) Where the allegations made in the F.I.R/complaint are patently absurd and inherently improbable so that no prudent person can ever reach such conclusion that there is sufficient ground for proceeding against the accused;

6) Where charge-sheet has been submitted on the basis of evidence or materials which are wholly irrelevant or inadmissible;