Dr. Ashok Dhamija

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  • in reply to: party in person #1172

    Relevant provisions of Civil Procedure Code are reproduced here for your information:

    Order 3 Rule 1. Appearances, etc., may be in person, by recognised agent or by pleader

    ORDER III

    Recognised Agents and Pleaders

    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 1[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.

    2. Recognised agents.— The recognised agents of parties by whom such appearances, applications and acts may be made or done are—

    (a) persons holding powers-of-attorney, authorising them to make and do such appearances, applications and acts on behalf of such parties;

    (b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorised to make and do such appearances, applications and acts.     


    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.

  • in reply to: Contempt committed by Judge #1171

    Under the Contempt of Courts Act, 1971, only the high court and the Supreme Court have the power to punish a person for contempt of court. The District Court does not have the power to punish for contempt; however, it can make a reference to the high court for contempt under Section 15(2) of the said Act.

    Section 16 of the said Act clearly says that even a judge or magistrate can also commit contempt of his own court or of another court. But, whether such contempt has been committed by such judge or magistrate has been committed will depend on the facts of each case, which may be examined by you in the facts of your case.

    Section 16 of the said Act is reproduced below:

    16. Contempt by judge, magistrate or other person acting judicially.—(1) Subject to the provisions of any law for the time being in force, a judge, magistrate or other person acting judicially shall also be liable for contempt of his own court or of any other court in the same manner as any other individual is liable and the provisions of this Act shall, so far as may be, apply accordingly.
    (2) Nothing in this section shall apply to any observations or remarks made by a judge, magistrate or other person acting judicially, regarding a subordinate court in an appeal or revision pending before such judge, magistrate or other person against the order or judgment of the subordinate 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.

  • in reply to: maintenance under sec 125 crpc #1170

    There is no appeal against an order of maintenance under Section 125 of Cr.P.C. However, a revision may be permissible against such order under Section 397 Cr.P.C.     


    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.

  • in reply to: maintenance under sec 125 crpc #1169

    Under Section 125 Cr.P.C., husband cannot demand maintenance from his wife, even if he is unable to maintain himself.     


    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.

  • in reply to: Private witness #1168

    If it is your case, you can even get to know the names of these “private witnesses” from the court. Why are you so concerned with the nomenclature? From what you have mentioned, they may be prosecution witnesses. May be that they may be private persons (as against some witnesses who may be Government servants). But, if they are being called to depose on behalf of the prosecution, you may simply consider them as prosecution witnesses, though the court may have used a different nomenclature.      


    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.

  • in reply to: Private witness #1159

    As far as I understand, “private witness” is not defined in law anywhere. This is not an expression of law, as per my little understanding of law.

    There are prosecution witnesses and there are defence witnesses.

    Please ask the person who has coined this expression “private witness.     


    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.

  • in reply to: will is valid infavour of concubine ? #1156

    Firstly, a person can make a will only in respect of his own property. Section 59 of the Indian Succession Act, 1925 says that “Every person of sound mind not being a minor may dispose of his property by will.” If there is an unpartitioned joint property, he can make a will only in respect of his own share of such property, and not of the whole property.

    Secondly, will can be made in favour of any person who is capable under law to hold property. Therefore, legally speaking, will can be made in favour of concubine if one is disposing of his own property.

    Thirdly, registration of a will is not compulsory under law. It is optional. Therefore, even an unregistered will may be considered as valid if it is otherwise a genuine will.     


    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.

  • in reply to: unregistered sale agreement #1155

    The Proviso to Section 49 of the Registration Act, 1908 provides as under:

    “Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under CHAPTER II of the Specific Relief Act, 1877 (1 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument.”

    Therefore, it should generally be possible to use an unregistered sale agreement relating to immovable property in a suit for specific performance.
         


    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.

  • You are requested please to contact some local lawyer at your place and show him all the relevant documents to get proper advice based on all documents. From what you have written, it appears that it should be possible for you to approach the appropriate court for getting justice.     


    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.

  • in reply to: Payment of Stamp Duty on Commercial Agreements #1153

    Normally, for such type of agreement, the stamp duty is to be paid to the State (as it is covered within the legislative powers of the state).

    You may have to check the Stamp Acts of the concerned states, but, to the best of my knowledge, generally speaking it may have to be paid in the state in which the services are to be rendered. This is so because, for example, Section 3 of the Maharashtra Stamp Act, makes the following instruments charges with stamp duty (other states, generally, have similar provisions):

    (1) every instrument which is executed in Maharashtra;
    (2) every instrument which is executed out of Maharashtra, but which relates to any property situate or to any matter or thing done or to be done in Maharashtra.

    In your question, it appears that the services would be rendered in Maharashtra, so it would be advisable to pay the stamp duty in Maharashtra, since it may be covered within the expression “to any matter or thing done or to be done”.

    Maharashtra Stamp Act is available at this link: http://igrmaharashtra.gov.in/SB_PUBLICATION/DATA/acts/Maharshtra%20Stamp%20Act%2011.9.2014.pdf

    With regard to your second question, you may have to examine the relevant Stamp Act to ascertain whether any specific stamp duty is payable or the general stamp paper of Rs. 100 would be sufficient. In fact, general stamp paper of an amount such as Rs. 100 (which may vary from state to state) is also basically stamp duty, but it is standardized rate for all sundry agreements for which no specific stamp duty is specified. Therefore, it is advisable to examine specific clauses in the Schedule to the relevant Stamp Act whether specific stamp duty for specific instruments is mentioned.     


    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.

  • As per bye-law No. 70 of the Model Bye-laws applicable in Maharashtra, a society can charge only simple interest. This provision is quoted below:

    “70. A Member shall be required to pay simple interest at twenty one percent per
    annum, or, at such lower rate as may be fixed by the General Body, on the
    outstanding dues to the Society, from the date the amount was due as
    prescribed under Bye-law no. 69, till full and final payment by the Member.”

    You may also check the bye-laws of your society in this regard.     


    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.

  • Presuming that your grand-father died intestate (without leaving a will) and that it was not a joint Hindu family property, you and your mother do not get right in the property since your father is alive. This is in accordance with Section 8 of the Hindu Succession Act, read with the Schedule to the said Act, which are reproduced below for your information:

    8. General rules of succession in the case of males.—The property of a male Hindu dying intestate shall devolve according to the provisions of this CHAPTER—
    (a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule;
    (b) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule;
    (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
    (d) lastly, if there is no agnate, then upon the cognates of the deceased.

    Schedule
    (See Section 8)
    HEIRS IN CLASS I AND CLASS II
    Class I
    Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son 1[son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son].

    Class II
    I. Father.
    II. (1) Son’s daughter’s son, (2) son’s daughter’s daughter, (3) brother, (4) sister.
    III. (1) Daughter’s son’s son, (2) daughter’s son’s daughter, (3) daughter’s daughter’s son, (4) daughter’s daughter’s daughter.
    IV. (1) Brother’s son, (2) sister’s son, (3) brother’s daughter, (4) sister’s daughter.
    V. Father’s father; father’s mother.
    VI. Father’s widow; brother’s widow.
    VII. Father’s brother; father’s sister.
    VIII. Mother’s father; mother’s mother
    IX. Mother’s brother; mother’s sister.
    Explanation.—In this Schedule, references to a brother or sister do not include references to a brother or sister by uterine blood.”

         


    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.

  • in reply to: Amendment of Order passed by the same court #1150

    It should be possible to do it. You may file a review petition and request the high court to pass revised order in view of the fact that there is an error apparent on the face of the record.     


    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.

  • in reply to: Recovery suit against state. #1147

    Yes, you can file appropriate proceedings against the PSU if they have not paid you for the work done, without any justifiable reasons.

    In fact, not paying for the work done may also be violation of the fundamental right guaranteed under Article 23 of the Constitution, since it is a form of “begar” or “forced labour” as mentioned in that article. Let me point out that unlike most other fundamental rights which are available against “state” only, the fundamental right under Article 23 may be applicable even against a private entity.     


    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.

  • in reply to: Is it mandatory to join inquiry by police? #1145

    Presuming that the police officer has the legal power to call you to question you, you are supposed to attend. Right to silence is one thing (if you are accused, you have right not to answer the question that may incriminate you), but not attending when summoned to appear is another thing. It may also be possible that the police may be calling you as a witness and not as an accused person.

    Have a look at the following legal provisions from the Indian Penal Code in this regard:

    174. Non-attendance in obedience to an order from public servant.—Whoever, being legally bound to attend in person or by an agent at a certain place and time in obedience to a summons, notice, order or proclamation proceeding from any public servant legally competent, as such public servant, to issue the same,
    intentionally omits to attend at that place or time, or departs from the place where he is bound to attend before the time at which it is lawful for him to depart,
    shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both;
    or, if the summons, notice, order or proclamation is to attend in person or by agent in a Court of Justice, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

    179. Refusing to answer public servant authorised to question.—Whoever, being legally bound to state the truth on any subject to any public servant, refuses to answer any question demanded of him touching that subject by such public servant in the exercise of the legal powers of such public servant, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

    187. Omission to assist public servant when bound by law to give assistance.—Whoever, being bound by law to render or furnish assistance to any public servant in the execution of his public duty, intentionally omits to give such assistance, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both;
    and if such assistance be demanded of him by a public servant legally competent to make such demand for the purposes of executing any process lawfully issued by a Court of Justice, or of preventing the commission of an offence, or of suppressing a riot, or affray, or of apprehending a person charged with or guilty of an offence, or of having escaped from lawful custody, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.     


    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.

Viewing 15 posts - 1,141 through 1,155 (of 1,514 total)