Dr. Ashok Dhamija

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  • in reply to: Divorce filed by wife #1244

    If you are not willing for divorce, you may oppose it. Moreover, if you feel that she has deserted you and that you want to live with her, you can file a petition for restitution of conjugal rights.

    As regards the amount of maintenance, it depends on the facts of each individual case and no hard and fast rule can be laid down with regard to amount of maintenance. The fact that she is also working may also be considered by the court in this regard.

  • in reply to: slp(cc) 4277/2015 #1243

    It is not possible to understand your question. The SLP number that you gave has been dismissed on 03.02.3017. So, whatever the high court had said would be applicable.

  • in reply to: SlP civil mater. #1240

    This case is shown registered as SLP (Civil) D 38105 of 2016 [S. MALLIKA AND ORS. Vs. R. SARAVANAN AND ANR.]. No next date is shown on the website and no order passed is shown on website. You may have to check from the Supreme Court registry, either personally or through your advocate. If you cannot go there personally, you may have to engage an advocate. An unauthorized person cannot get information from registry. Else, keep checking the website for whatever information is available. Use this link to check information: http://courtnic.nic.in/supremecourt/casestatus_new/caseno_new_alt.asp

  • Section 21 of the Civil Procedure Code is similar to your case, though it does not directly cover your case. It is reproduced as under:

    21. Objections to jurisdiction.— (1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.

    (2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.

    (3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.”

    In a similar situation, in the case of Bahrein Petroleum Co. Ltd. v. P.J. Pappu, AIR 1966 SC 634, the Supreme Court held that:

    “If the defendant allows the Trial Court to proceed to judgment without raising the objection as to the place of suing and takes the chance of a verdict in his favour, he clearly waives the objection, and will not be subsequently permitted to raise it. It is even possible to say that long and continued participation by the defendant in the proceedings without any protest may, in an appropriate case, amount to a waiver of the objection.”

    As I mentioned above, though your case is not covered under Section 21 of CPC, the legal principle is somewhat similar. You may try taking a similar ground that before the Single Judge of the high court, the proceedings continued for 16 long years and the opposite party never objected and even a judgment was passed in your favour. Likewise, even before the division bench of the high court, no objection was taken even till the time the judgment was reserved. Therefore, at such late stage, such objection by the opposite party should not be accepted. [Note: however, please be aware that where the competence of the court goes to the root of the jurisdiction, the court may or may not accept this argument.]

  • in reply to: PwD service matters #1232

    As far as I understand, a certificate issued by the appropriate authority  or duly constituted medical board about the disability should generally be considered to be final. Under the newly enacted the Rights of Persons with Disabilities Act, 2016 [http://www.disabilityaffairs.gov.in/upload/uploadfiles/files/RPWD%20ACT%202016.pdf], as well as under the existing guidelines, namely,  the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996, there does not appear to be any provision for such review on behalf of the employer, though there are provisions to enable the person with disability to file for review / appeal against the decision of the medical board if he is not satisfied about such decision. Even the rules relating to medical examination of candidates for Civil Services Examination (including for the persons belonging to the PH category) [http://persmin.gov.in/ais1/Docs/Appendix-III.pdf] do not contain provisions for any such review.

    However, I may not have access to all relevant departmental guidelines or rules (which are not available on the web). And, perhaps, it may need some more research on this issue.

    But, perhaps in those cases where there is an allegation that the person concerned has produced or obtained a fake disability certificate for claiming reservation benefit for PH candidates, the department may be in a position to refer them to the appropriate medical board. To give a parallel, several years back, I had seen the cases of two persons who had been appointed to the Central Civil Services (if I remember correctly, one of them was appointed in IAS and the other in IPS) on the basis of fake caste certificates thereby wrongly claiming reservation benefits. Subsequently, they were removed from service and criminal cases were registered against them for the fake caste certificate. Perhaps, in a similar manner, if there are allegations that a person has obtained or produced a fake disability certificate, the department may perhaps get it verified and take necessary action if such certificate is found to be fake. This is because it is a misconduct to produce fake certificates (including cases where the medical board was also involved or was bribed) and an appointment made on the basis of fake certificate may be revoked. This is also in order to ensure that the deserving PH candidates are not deprived of their opportunities by the people with fake disability certificates. In fact, a simple search of Google shows several news reports with fake disability certificate scams. For example, see the following news report:

    But, in genuine marginal cases (i.e., where fake disability certificate is not suspected), such review of PH candidates should not be possible. More so, when the person has already spent about a year in service. Wherever possible, benefit of doubt should be given to the PH candidate. In case, any action is taken in any such genuine case, the person concerned can ask the Govt as to under what provisions of law such review medical examination is being conducted (or, it may perhaps be explained in the order for such review, itself). And, if need be, such review order can be challenged before the appropriate court or tribunal (such as CAT) having jurisdiction.

  • in reply to: autonomous body service matter #1229

    High Court jurisdiction under Article 226 is not fully taken away, but this will be only after CAT decision. What this means is that once CAT gets jurisdiction in a matter, the matter has to be taken to CAT first and the high court cannot hear it at the first or original stage. But, after CAT has given its verdict, the CAT decision can be challenged in high court under Article 226.

  • in reply to: SLP(Civil) for issues left without finality #1228

    Without going into the details of facts of your case, generally speaking, the issues which are not decided while finally disposing of a matter may be considered to have been rejected by the court (unless, of course, if the court specifically mentions that certain issues have been kept open, without deciding them, in which situation those specific undecided issues may not be considered to have been rejected by it). Therefore, it may be possible to challenge such issues in the higher court, in this case by way of SLP in Supreme Court. If the Supreme Court deems it appropriate, it may remit the matter to the high court and direct it to decide those issues, or else the Supreme Court may itself decide them.

  • in reply to: Private complaint against builder under mofa and ipc #1226

    Please see my article: http://tilakmarg.com/answers/difference-between-a-criminal-complaint-filed-under-section-200-and-190-of-cr-p-c/

    If you have sufficient evidence to prove the case on your own as a private complaint case, then you may try Section 190 / 200 Cr.P.C. private complaint route.

    However, if you feel that you need police investigation for collecting relevant evidence and that you’ll not be able to prove the case yourself without such additional evidence, in that case, you may try an application under Section 156(3) Cr.P.C. requesting the Magistrate court to direct police to investigate the case.

  • in reply to: cheque dishonoured due to account closed #1224

    Section 420 IPC is reproduced below:

    420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

    It is clear from Section 420 IPC that it is committed when the act of cheating is used to induce the person to deliver some property etc. Such intention to dishonestly induce the person to deliver property etc should be since the beginning, i.e., since the time when the act was first committed.

    In your case, you say that hand loan was given. Now, suppose hand loan (which is property) was given at the time when the cheque was given to you, then perhaps Section 420 IPC may be attracted, since at that time the account itself was already closed. So, the intention, as mentioned above, would perhaps have been there to cheat.

    But, suppose the hand loan had already been given and the cheque was given subsequently, then at the time of giving the cheque there was no inducement for delivering any property etc (since hand loan is already given), and in such a case, it may become difficult to prove Section 420 IPC. However, even in this case, offence under Section 138 of Negotiable Instruments Act may be made out.

    What I have mentioned above is the general scenario. Ultimately, it depends on the detailed facts of an individual case. So, please consult some local lawyer by showing him all relevant documents / facts.

    Please also read my following articles, which are relevant to your question:

    http://tilakmarg.com/forum/topic/can-cheating-case-under-section-420-ipc-be-filed-in-cheque-bounce/

    http://tilakmarg.com/answers/breach-of-contract-will-not-be-cheating-unless-deception-played-at-the-very-inception/

  • in reply to: JUrisdictions – Cheque Boumce #1223

    The latest legal position with regard to jurisdiction in cheque bounce cases is laid down in Section 142(2) of the Negotiable Instruments Act, which was amended with effect from 15 June 2015, and this amended provision is as under:

    “(2) The offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction,—
    (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or
    (b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.
    Explanation.—For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.”

    So, the cheque bounce case can now be filed in the court which has jurisdiction over the place where the branch of the bank where the payee maintains the account, is situated. It is NOT at the place where the drawer of the cheque maintains the account. This is the latest position.

  • in reply to: Procedure for divorce on mutual concern(Special act) #1221

    Your similar question has been answered at the following link, which replies to your present question also:

    http://tilakmarg.com/forum/topic/divorce-on-mutual-concernsspeacial-act/

  • in reply to: Divorce on mutual concerns(Speacial act) #1219

    For divorce on mutual consent under the Special Marriage Act (as mentioned in the title of your question), both of you will have to file a mutual consent divorce petition in the Family Court under Section 28 of the Special Marriage Act, 1954, which is as under:

    28. Divorce by mutual consent.—(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

    (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the district court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act, and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.”

    Please consult some local lawyer of your area for the detailed procedure.

  • in reply to: autonomous body service matter #1217

    It is not advisable for me to comment on facts without actually seeing the documents. But, from what you have mentioned, it appears that the 2 months notice clause is a part of the same 6 monthly contract. If so, then generally such clause would state that before the completion of the 6 months period, services may be terminated by giving a 2 months notice. In your case, you have said that the services were terminated on the completion of 6 months contract (i.e., on the last day), which means no fresh contract of 6 months was signed. In that situation, in the absence of a fresh / new 6 months contract, the 2 months notice may not be relevant since the contract itself comes to an end. But, as I mentioned above, this is what is based on limited knowledge of facts. Please consult your advocate who would have seen all relevant documents.

    On the second issue, under Section 14(2) of the Administrative Tribunals Act, 1985, the Central Government, may by notification, extend the jurisdiction of the CAT to certain corporations / societies controlled by Central Government, etc. Once such a notification is issued, the high court and other courts (excluding the Supreme Court) will not have jurisdiction to entertain service matters of their employees. So, there is a legal bar. If such a notification has been issued in respect of your organisation (as you say, it was in 2008), then the high court will not have jurisdiction and CAT will have the original jurisdiction. The fact that previously for many other employees, the high court was entertaining petitions by mistake, will be no ground for high court to entertain your petition also once it has knowledge of such notification. So, in such a case, your petition may have to go to CAT.

    Generally speaking, the high court may dispose of your petition with liberty to approach CAT. But, if the high court is willing to transfer your petition to CAT, that also should be alright. But, chances are that the high court will ask you to file a fresh petition in CAT.

    There is no time limit for disposal of a case. Sometimes, they take years. There is a lot of pendency in most courts and even tribunals.

    If the opposite party delays the matter, you’ll have to request the court / tribunal to expedite the matter and direct the opposite party or not to give the opposite party further time, etc.

    You can approach the NCW, but their powers in this regard are limited.

  • in reply to: cheque dishonoured due to account closed #1211

    For what purpose, the cheque was issued?

    Did you deliver some goods or services on the basis of the said cheque?

  • in reply to: Pursis of Defense Lawyer #1209

    Even if there are more than one advocates appearing for an accused, they are considered as one unit. It cannot happen that one advocate takes one stand and another advocate takes another stand for the same accused, since both of them are representing the same person. So, even where there is a joint Vakalatnama on behalf of a single accused person, which has been signed by more than one advocate, they have to take a joint stand and they cannot take different stand for the same accused.

    Secondly, citing accused person as a witness is only optional. It is not compulsory. In fact, generally an accused person is not produced as a witness. It is quite rare to produce an accused person as a witness in his own case. If the accused appears as a witness, then the public prosecutor gets a right to cross-examine the accused, which can sometimes become a double-edged weapon. So, usually, the defence advocates do not want to cite the accused person as a witness.

    Rest of things you can ask from your advocate, because I don’t know what exactly is their intention or plan.

Viewing 15 posts - 1 through 15 (of 404 total)