Dr. Ashok Dhamija

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  • in reply to: Order 7 Rule 11 of CPC repeated petition or amendment #4802

    In the case of U.P. SRTC v. State of U.P., (2005) 1 SCC 444 : AIR 2005 SC 446, the Supreme Court has held that the principle of res judicata is based on the need of giving a finality to judicial decisions. The principle which prevents the same case being twice litigated is of general application and is not limited by the specific words of Section 11 CPC in this respect. The Supreme Court further held that res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings.

    Relying upon the above Supreme Court judgment, in a recent case decided by the Madhya Pradesh high court, in Mannu Raje Trust v. Mohd. Ajad, (2017) 2 MP LJ 300 (MP), has held that if at an earlier stage of the same suit, identical application under Order 7 Rule 11 of the CPC had been moved and the same had been rejected then the subsequent application under the same provision of law will not be maintainable being defeated by the principle of res judicata. It was further held that, even otherwise, if the grounds mentioned in the previous and subsequent applications under Order 7, Rule 11, Civil Procedure Code are different, then also the subsequent application would be barred by the principle of constructive res judicata as the ground raised in the subsequent application was available at the time when the previous/first application under Order 7, Rule 11, Civil Procedure Code was moved.

    In view of the above, it may not be possible to move a repeated application under Order 7 Rule 11 of the CPC in the same suit.

    As regards the second issue of amendment of the petition / application, you may try moving the court seeking an amendment to your petition, with justifiable reasons. If the court grants you permission for amending it, you may do so.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • in reply to: Family Court procedure #4800

    Due to heavy pendency in courts and the number of judges being insufficient, delay happens in most cases. Nowadays, marriage related cases also remain pending for several years.

    It is not possible for us to comment on the facts of a case without having seen detailed facts of the case.

    You should see the progress of other cases in the same court and check which years’ cases are pending. If you are still not satisfied with the performance of your advocate, you can change your advocate.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • in reply to: Preliminary enquiry vs Compulsory FIR #4799

    Please see our guidelines, we don’t reply to academic questions on this Forum. This Forum is meant to help people who have some legal issue of their own. We don’t have spare time to reply to academic questions; you can please do research on the issues involved through Google.

    In any case, in the Lalita Kumari case, the Supreme Court had referred to some types of cases in which a preliminary enquiry may be necessary before registration of FIR.

    In the judgment referred to by you for cases under SC/ST Act, the Supreme Court has laid down some safeguards in view of alleged misuse of the said Act, as mentioned by the court. This matter is already pending before the Supreme Court in a review petition. If you are aggrieved by this judgment, you can approach the Supreme Court.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • in reply to: Time for appeal in highcourt in family matters #4796

    The limitation period to file appeal in a family matter would depend on the legal provision under which the appeal is filed.

    If the appeal is filed before the high court under Section 19 of the Family Courts Act, 1984, then sub-section (3) of this section provides limitation period of 30 days.

    If the appeal is filed under Section 28 of the Hindu Marriage Act, 1955, then the limitation period is 90 days.

    Limitation period is counted from the date of the order. However, the period between the date of application of certified copy and the date of actual delivery of certified copy is excluded.

    In your case, the date of order is 27 March 2018 and the date of getting copy of the judgment is 21 May 2018; however, you have not mentioned when did you apply for getting a certified copy. The actual time period taken for delivery of the certified copy of the judgment from the date of your application for certified copy is generally excluded while calculating the limitation period.

    However, if the judgment is first released on 21 May itself, then the limitation period may start from this date.

    You should consult your local lawyer with the detailed facts on this issue.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • This usually happens in many courts. Many courts have very lengthy cause lists and the number of cases listed every day is generally large. Due to this, many a time, it is not possible for the court to hear all the matters which have listed for the day. In such a situation, further date is given.

    This problem is not specific only in your case, but in many of the cases. You have to be patient since the courts have huge pendencies and there are several vacancies in the posts of judges. Strength of judiciary is not sufficient to deal with the number of cases pending.

    However, if your case of an urgent nature, your lawyer can mention the case before the court, whereupon the court may give it an expeditious hearing if it is convinced by the argument of urgency.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • in reply to: SLP – Getting SLP Number and Listing during vacation #4793

    Registry in the Supreme Court works during the vacations. So, the SLP Number may be given during the summer vacation also.

    However, the listing of the SLP before the regular bench of the Supreme Court will not be made during the vacation, unless it is an urgent matter and a specific request is made for its listing during vacation.

    Most of the SLPs are dismissed on the first date of hearing. So, yes, it is possible that the SLP could be dismissed on the first date of hearing.

    If the SLP is dismissed on the first date, without issuing notice, and without hearing the case in detail (as is generally the case), it may not be precedent for other cases.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • Rule 6 of the Central Administrative Tribunal (Procedure) Rules, 1987, lays down as to before which Bench an Original Application can be filed by an applicant:

    6. Place of filing applications. – (1) An application shall ordinarily be filed by an applicant with the Registrar of the Bench within whose jurisdiction, (i) the applicant is posed for the time being, or (ii) the cause of action, wholly or in part, has arisen:

    Provided that with the leave of the Chairman the application may be filed with the Registrar of the Principal Bench and subject to the orders under section 25, such application shall be heard and disposed of by the Bench which has jurisdiction over the matter.

    (2) Notwithstanding anything contained in sub-rule (1) persons who have ceased to be in service by reason of retirement, dismissal or termination of service may at his option file an application with the Registrar of the Bench within whose jurisdiction such person is ordinarily residing at the time of filing of the application.”

    It appears that in your case the dismissal order might have been passed at Jhansi. So, you can file an Original Application in CAT only if:

    (1) You are residing in Delhi after your dismissal, which comes within the jurisdiction of CAT, Principal Bench, New Delhi.

    (2) OR, if you seek permission of the Chairman of CAT for filing OA in the Principal Bench at New Delhi (giving some justifiable reasons for doing so) and such permission is granted.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • in reply to: FIR with IPC 337 #4788

    Section 6(2) of the Passports Act, 1967, deals with refusal of passport or travel documents on various grounds:

    “(2) Subject to the other provisions of this Act, the passport authority shall refuse to issue a passport or travel document for visiting any foreign country under clause (c) of sub-section (2) of Section 5 on any one or more of the following grounds, and on no other ground, namely:—

    (a) that the applicant is not a citizen of India;

    (b) that the applicant may, or is likely to, engage outside India in activities prejudicial to the sovereignty and integrity of India;

    (c) that the departure of the applicant from India may, or is likely to, be detrimental to the security of India;

    (d) that the presence of the applicant outside India may, or is likely to, prejudice the friendly relations of India with any foreign country;

    (e) that the applicant has, at any time during the period of five years immediately preceding the date of his application, been convicted by a court in India for any offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than two years;

    (f) that proceedings in respect of an offence alleged to have been committed by the applicant are pending before a criminal court in India;

    (g) that a warrant or summons for the appearance, or a warrant for the arrest, of the applicant has been issued by a court under any law for the time being in force or that an order prohibiting the departure from India of the applicant has been made by any such court;

    (h) that the applicant has been repatriated and has not reimbursed the expenditure incurred in connection with such repatriation;

    (i) that in the opinion of the Central Government the issue of a passport or travel document to the applicant will not be in the public interest.”

    The conditions mentioned in clauses (e), (f) and (g) deal with your situation. Once the case against you is disposed of, thereafter clauses (f) and (g) may not apply. Moreover, if you are convicted and sentenced only with fine, as you have mentioned, for the offence under Section 337 of the IPC, then the condition mentioned under clause (e) may also not apply, since minimum punishment mentioned therein is 2 years’ imprisonment and since offence under Section 337 is not an offence involving moral turpitude as far as I understand.

    Therefore, as far as I understand, the sentence of only fine in an offence under Section 337 IPC may not come in the way of getting passport. Now, whether it would create a problem in getting Visa from any specific country, is an issue that you may need to enquire from the authorities of the concerned country or check from their laws or ask some travel expert.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • in reply to: Procedure to initiate IPC 177 #4773

    If the facts of your case make out only a case under Section 177 of IPC, then please see the following provision contained in Section 195(1)(i) of the Criminal Procedure Code:

    195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.—(1) No Court shall take cognizance—

    (a) (i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or

    (ii) of any abetment of, or attempt to commit, such offence, or

    (iii) of any criminal conspiracy to commit such offence,

    except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;”

    Therefore, a complaint with regard to the offence under Section 177 IPC can be filed only by the concerned public servant before whom false information was given. So, you may have to request the concerned public servant to file such complaint.

    Further, if the false information was given to the Magistrate during judicial proceedings, then depending on detailed facts, it may also amount to the offence of perjury under Section 193, 194, 195, etc., of IPC also. If that is the case, then an application will have to be filed before the same Magistrate under Section 340 of the Criminal Procedure Code requesting him to file complaint before the competent court.

    Search “perjury” on Tilak Marg and you’ll get many web pages that will provide you more information on this issue.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • in reply to: Regarding transfer on spouse ground in Central govt #4772

    Please see my reply on a similar question (Husband and wife posted at different stations both being government servants) which discusses the provisions of the relevant Office Memorandum of the DOPT on the issue of posting husband wife at the same station to the extent possible. You may also see the Office Memorandum F. NO. 28034/9/2009-Estt.(A) dated the 30th September, 2009 by the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training).

    Now, if the concerned authorities are not transferring in accordance with the above policy, the remedy available would be to challenge the refusal to such transfer in the Central Administrative Tribunal (CAT), and then to the High Court and Supreme Court, if needed.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • in reply to: Time period to file a recovery case #4770

    The limitation period for recovery of money is 3 years.

    However, under the provisions of Section 18 of the Limitation Act, 1963, if there is an acknowledgement in writing of the liability before the expiry of the limitation period, then a fresh limitation period would start from the date of such acknowledgemnt:

    18. Effect of acknowledgment in writing.—(1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.

    (2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received.

    Explanation.—For the purposes of this section,—

    (a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set off, or is addressed to a person other than a person entitled to the property or right,

    (b) the word “signed” means signed either personally or by an agent duly authorised in this behalf, and

    (c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right.”

    So, with the help of your local lawyer, you can check on the basis of your detailed facts, whether your matter is covered within Section 18, as quoted above.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • There are several provisions with regard to this issue in various Orders of the Civil Procedure Code (CPC). Let me explain them.

    For example, Rule 1 of Order 3 of the CPC lays down as under:

    1. Appearances, etc., may be in person, by recognised agent or by pleader.— Any appearance, application or act in or to any Court, required or authorised by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf:

    Provided that any such appearance shall, if the Court so directs, be made by the party in person.”

    So, what this Rule provides is that while it is permissible for a party to appear through his pleader (i.e., advocate) or his recognized agent, if the court so requires he may have to appear in person.

    Sub-Rule (2) of Rule 1 of Order 5 of CPC lays down as under:

    “(2) A defendant to whom a summons has been issued under sub-rule (1) may appear—

    (a) in person, or

    (b) by a pleader duly instructed and able to answer all material questions relating to the suit, or

    (c) by a pleader accompanied by some person able to answer all such questions.”

    But, Rule 3 of Order 5 of CPC lays down an exception to the above rule, as under:

    3. Court may order defendant or plaintiff to appear in person.— (1) Where the Court sees reason to require the personal appearance of the defendant, the summons shall order him to appear in person in Court on the day therein specified.

    (2) Where the Court sees reason to require the personal appearance of the plaintiff on the same day, it shall make an order for such appearance.”

    Thus, the court has the power to require the personal appearance of the defendant if it sees reason for the same. But, in this regard, it is also relevant to keep in mind the condition imposed in Rule 4 of Order 5 of CPC, which is as under:

    4. No party to be ordered to appear in person unless resident with certain limits.— No party shall be ordered to appear in person unless he resides—

    (a) within the local limits of the Court’s ordinary original jurisdiction, or

    (b) without such limits but at a place less than fifty or (where there is railway or steamer communication or other established public conveyance for five-sixths of the distance between the place where he resides and the place where the Court is situate) less than two hundred miles’ distance from the Court House.”

    So, the end result is that subject to the conditions mentioned in Rule 4 of Order 5 of CPC, the defendant may be required to appear in person by the court even if he has appointed a recognized agent or pleader to appear on his behalf.

    So, depending on whether or not you satisfy the condition mentioned above, you may take further necessary action in your matter.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • Section 5(1) of the Prevention of Corruption Act, 1988, specifically lays down as under:

    5. Procedure and powers of Special Judge.—(1) A Special Judge may take cognizance of offences without the accused being committed to him for trial and, in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1973 (2 of 1974), for the trial of warrant cases by Magistrates.”

    So, it is clear that the law itself lays down that the Special Judge may take cognizance of an offence under the PC Act without the accused being committed to him for trial. Therefore, there is no need for an order from the Magistrate committing the case for trial to the Special Judge in a corruption case.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • Appeal against a decree can generally be filed within 90 days or 30 days, depending on the court where the appeal is to be filed.

    In your case, if the decree was passed in 1989, filing an appeal against it now after a gap of about 29 years may be completely barred by limitation. It is generally not possible to explain such long delay.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

  • It is an academic type of question. Even the police is not allowed to use handcuffs in India in most situations, barring some exceptional situations, how do you expect private individuals being allowed to use handcuffs?

    Frankly speaking, I have never seen even a single case where a private individual has arrested some accused.

    How do you expect yourself continuously moving with handcuffs in streets waiting for someone to commit a cognizable non-bailable offence in your presence?

    Please do not ask such academic questions.

         


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers.

Viewing 15 posts - 16 through 30 (of 1,897 total)