[Dr. Ashok Dhamija]

Rule 7.3 of the Punjab Civil Services Rules has several clauses which may be applicable depending on the facts of each case. If you feel that your facts are covered in a particular clause [such as in clause (2) thereof], then you can definitely ask the Government to apply such clause to you and if needed, you can even approach the appropriate court / tribunal with your grievance. Consult some lawyer with your detailed facts, if needed.

However, let me point out that, as far as I understand if the period spent under compulsory retirement has been directed to be treated as “leave of any kind due” and if you have sufficient leave available in your leave account, then that may be as good as treating such period as service.

     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

It is not possible to answer a purely academic question like this (such as is asked in law examination to students) due to limited available time. Otherwise, it would not be possible for us to help the really needy people who ask questions for their practical legal problems. You may see Section 115 of the Evidence Act for estoppel and Section 11 of the Civil Procedure Code for res judicata.

     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

If any fine is imposed under Section 138 of the Negotiable Instruments Act to compensate for the cheque amount, such amount can be recovered in accordance with the procedure laid down in Section 421 of the Criminal Procedure Code, which is as under:

“421. Warrant for levy of fine.— (1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may—

(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;

(b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter:

Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Section 357.

(2) The State Government may make rules regulating the manner in which warrants under clause (a) of sub-section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.

(3) Where the Court issues a warrant to the Collector under clause (b) of sub-section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law:

Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.”

In this regard, Section 431 of the Cr.P.C. may also be relevant:

“431. Money ordered to be paid recoverable as a fine.— Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine:

Provided that Section 421 shall, in its application to an order under Section 359, by virtue of this section, be construed as if in the proviso to sub-section (1) of Section 421, after the words and figures “under Section 357”, the words and figures “or an order for payment of costs under Section 359” had been inserted.”

Please also note that the court is also empowered to award additional imprisonment to the accused in default of payment of fine.

     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

An appeal against the order of conviction in a cheque dishonour case under Section 138 of the Negotiable Instruments Act can be filed in the Court of Session under the provisions of Section 374(3) of the Criminal Procedure Code. Section 374 of Cr.P.C. is as under:

“374. Appeals from convictions.— (1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed against him or against any other person convicted at the same trial, may appeal to the High Court.

(3) Save as otherwise provided in sub-section (2), any person,—

(a)convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, or

(b)sentenced under Section 325, or

(c)in respect of whom an order has been made or a sentence has been passed under Section 360 by any Magistrate,

may appeal to the Court of Session.”

For an appeal against acquittal in a case under Section 138 of the N.I. Act, two situations may arise. Firstly, if the appeal against acquittal is to be filed by the victim of the cheque dishonour case, then the appeal may be filed in the Court of Session under the Proviso to Section 372 (however, in such a situation, leave to appeal may first have to be obtained from the High Court under Section 378 of the Cr.P.C., as held in certain judgments), which is as under:

“372. No appeal to lie unless otherwise provided.— No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:

Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”

Secondly, if the appeal against acquittal is to be filed by the complainant, who is not the victim, then it can be filed under the provisions of Section 378(4) of Cr.P.C., which is as under:

“(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.”

 

     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

There is something called hiding information or not providing information innocuously. Then, there is something called concealing information deliberately or intentionally. It is generally the second situation which may be an offence.

Secondly, not all offences are cognizable offences.

Thirdly, commission of an offence and registration of an offence may be different things. Has an offence been actually registered against you already in this regard? My understanding is that the information sought in the attestation form is with respect to offences already registered against the person concerned.

In any case, as I wrote in my previous reply, you can apply from being discharged as a surety in at least one case to avoid any problem. Alternatively, you can inform the authorities concerned that unknowingly you had mentioned wrong information in the surety form and that you want to correct that information. Legally there is no bar on standing surety for more than one accused (or in more than one case), but the requirement is that you must provide this information correctly. So, you can correct the information now or get discharged as a surety in at least one case.

     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Your question involves complicated questions of law and facts, including the local amendment made in Andhra Pradesh by way of insertion of Section 29-A to the Hindu Succession Act. So, it is advisable for you to consult some local lawyer in your state by showing him all the relevant details.

On the basis of the limited information available to me through your question, my tentative reply would be that the unamended Section 6 of the Hindu Succession Act (i.e., prior to amendment of Section 6 of this Act which was made in 2005) may perhaps govern your scenario. Prior to its amendment in 2005, Section 6 stood as under:

“6. Devolution of interest in coparcenary property.—When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act :

Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

Explanation 1.—For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

Explanation 2.—Nothing contained in the proviso to this section shall be construed as enabling a person who had separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.”

The Proviso to this old section shows that if a male person died with only female relatives specified in Class I of the Schedule, then the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be. In your case, it should be by intestate succession as per Section 8 of the Act, since there appears to be no will.

In view of this, my tentative opinion is that the property in your question will be equally divided between widow and 2 daughters in accordance with Section 8 of the Act. However, please note that this opinion is given on the basis of limited information and it may or may not be accurate. As mentioned above, it may be advisable for you to consult some local lawyer in your state, by showing him all relevant details.

     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

1. Please ask some lawyer practicing in Maharashtra (or any other expert person in Maharashtra). It is a Maharashtra specific Act and I do not practice there.

2. It appears that you have not read Section 6 properly and have not understood the same. Please engage some local lawyer if you are not able to understand the legal provision on your own which has been informed to you.     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Please see the Succession Act, 1925, and, in particular, see Part VI thereof, which relates to wills.     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

It is common sense that the judge will deliver his judgment on the basis of the whole evidence that has come on record during the trial, and not merely on the basis of the arguments made by lawyers at the time of the final arguments.

Of course, the quality of the arguments made by the lawyer (at the time of the final arguments) will also count, because he can analyse the evidence and show the importance of such evidence. If you have a good lawyer arguing your case, he can properly explain what all evidence that is on record and what is the importance of each piece of the evidence in your favour.

If you have engaged a lawyer, then you will not be allowed to argue in person as an accused. If you do not have confidence in your existing advocate, you can change him. Or else, if you feel confident to argue the case yourself, then you can discharge your advocate and appear in person, in which case the court will permit you to argue the case yourself at the time of the final arguments. Choice is yours.

     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

It appears that your case is numbered as a regular Civil Appeal No. 6178 of 2012. Initially, it was filed as SLP and thereafter it was converted into a Civil Appeal after leave being granted in 2012.

Due to heavy pendency in Supreme Court, hearing of Civil Appeals is generally done as per the seniority of filing of the case. The cases are listed as per queue. Right now, no further date is being shown in your case. As per the queue, a date will be notified by computer in turn, as per the system in the Supreme Court. So, you should have patience.

If you have urgency, your advocate can mention the matter before the Chief Justice court and request for early hearing citing the ground of urgency. If the court agrees, your matter may be listed earlier. Otherwise, you may have to wait for your turn.

     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

As far as I understand, you are generally not required to state in the attestation form for police verification about the fact whether you have stood surety for some accused person. If, at all, there is some column for this purpose, you can state the facts correctly. It should not come in the way of your getting a government job. After all, you are yourself not an accused person but you are merely standing a surety.

In any case, if you so wish, you can file an application for discharge as a surety from one or both cases and the concerned accused person can provide another surety in place of you.

     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

As far as my knowledge goes, in such a situation it should be possible for the person concerned to make a will in respect of his own share in the undivided property.     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Once the challan / charge sheet has already been filed in the court, there is no point in approaching the high court for quashing of the FIR, since the FIR has already led to the filing of the charge sheet. In such a situation, you may try to file a discharge application before the trial court.

     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Section 24 of the Maharashtra Rent Control Act, 1999, lays down the remedy to the landlord to recover possession of premises given on leave and licence basis on expiry of licence:

“24. Landlord entitled to recover possession of premises given on licence on expiry. (1) Notwithstanding anything contained in this Act, a licensee in possession or occupation of premises given to him on licence for residence shall deliver possession of such premises to the landlord on expiry of the period of licence; and on the failure of the licensee to so deliver the possession of the licensed premises, a landlord shall be entitled to recover possession of such premises from a licensee, on the expiry of the period of licence, by making an application to the Competent Authority, and, the Competent Authority, on being satisfied that the period of licence has expired, shall pass an order for eviction of a licensee.

(2) Any licensee who does not deliver possession of the premises to the landlord on expiry of the period of licence and continues to be in possession of the licensed premises till he is dispossessed by the Competent Authority shall be liable to pay damages at double the rate of the licence fee or charge of the premises fixed under the agreement of licence.

(3) The Competent Authority shall not entertain any claim of whatever nature from any other person who is not a licensee according to the agreement of licence.

Explanation- For the purposes of this section,-

(a) the expression “landlord” includes a successor-in-interest who becomes the landlord of the premises as a result of death of such landlord; but does not include a tenant or a sub-tenant who has given premises on licence;

(b) an agreement of licence in writing shall be conclusive evidence of the fact stated therein.”

As regards the legal powers of the owner to evict the trespasser, the relevant legal position is that the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.

It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner. 

No one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. It is difficult to lay down any hard-and-fast rule as to when the possession of a trespasser can mature into settled possession. The “settled possession” must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase “settled possession” does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket.

In fact, following tests have been laid down by courts as a working rule for determining the attributes of “settled possession”:

(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;

(ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;

(iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and

(iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner, has no right to destroy the crop grown by the trespasser and take forcible possession.

 In this regard, also see Section 6 of the Specific Relief Act, 1963:

“6. Suit by person dispossessed of immovable property.—(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.

(2) No suit under this section shall be brought—

(a) after the expiry of six months from the date of dispossession; or

(b) against the Government.

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

(4) Nothing in this section shall bar any person from suit to establish his title to such property and to recover possession thereof.”

A licensee overstaying beyond the licence period cannot be evicted by force. You have to take recourse to the legal process for his eviction, as may be applicable.     

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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. List of his YouTube Videos.

[Dr. Ashok Dhamija]

Limitation period for filing a suit for recovery of money is 3 years. This applies to recovery of loans by banks also. However, if you have acknowledged the loan, paid any instalment or paid interest, etc., in the meanwhile, then the limitation period may start running afresh and will be counted from such date. So, if you have not acknowledged the loan in any such manner, then your credit card appears to be time barred.

There does not appear to be any legal bar to the bank authorizing a private recovery agent for recovery of loan in a lawful manner. However, such recovery agent cannot use any illegal method, such as of pressuring or threatening etc., to recover the loan.

     

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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. List of his YouTube Videos.

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