[Dr. Ashok Dhamija]

Your facts are incomplete and vague. How can one give you accurate and correct opinion without actually seeing the relevant documents, on the basis of incomplete information?

While on the one hand, you say that it was a transfer from one department to another, on the other hand, you have also mentioned that “No mode of appointment was mentioned in the advertisement for the post”. Thus, it appears that the employee has joined in a new post on the basis of an advertisement, which also mentioned about a fresh 2 years’ probation period. Probation itself implies “subject to satisfactory completion of probation period”, which may imply that it may not be a confirmed job. But, then one has to see the full details to do justice to your case.

So, in view of these complicated issues involved, it would be advisable for you to show your detailed documents to some expert (along with relevant rules/orders) and obtain his opinion, instead of asking opinion of someone who has not seen the papers.

     

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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]

I am not aware of any specific rules or law being applicable to what you have described as “Lal Dora” area. You may have to consult some local lawyer of your city / state where Lal Dora area lies and who has knowledge of the law related to Lal Dora, if there is any specific law relating to that.

Under the general law, if a Hindu male dies intestate leaving behind his self-acquired property, his property will devolve equally on wife, three sons and a daughter (as mentioned in your question). Wife of such person does not acquire an extra right of ownership in such a case. So, under general law, a transfer deed by the wife of the nature described by you would be invalid.

You can challenge it during the period of limitation.

Transfer of property cannot be made by oral statement. It is required to be in writing and also to be registered.

     

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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 note that even though privacy has been declared to be a fundamental right, we still do not have a Privacy Act which makes violation of privacy an offence.

Also note that most of the fundamental rights are available only against the State (i.e., the Government, legislature, etc.) and they are generally not available against private individuals. Therefore, a writ petition for enforcing fundamental rights against a private individual may not be entertained. Yes, if the State is violating privacy, then of course a writ petition may be possible.

For taking care of violation of privacy by an individual, you may need a Privacy Act, which does not exist in India till date. Let me hasten to add that the Supreme Court is right now hearing a petition against Facebook / WhatsApp for violation of privacy of people at large, but then this case involves privacy rights of tens of millions of people; and, its fate is also yet to be known.

The only offence which can perhaps be considered in the fact situation of your case is “public nuisance” under Section 268 of IPC which is punishable under Section 290 IPC. Another option is making an application to the executive magistrate under Section 133 of the Cr.P.C. for getting order of removal of nuisance. But, both these provisions talk of nuisance of “public” character, and it will have to be seen from the facts of your case whether they apply to a private building.

So, please keep these aspects in mind if you want to file a writ petition in a court for enforcement of your fundamental right to privacy in such situation where the petition would be against an individual.     

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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 no legal prohibition on filing a private complaint against her after charge sheet is filed in her complaint / FIR. Of course, it will be doubted as to why did you not file it earlier. But, other than this doubt, if you have solid proof against her in your complaint which cannot be refuted, then your complaint will be decided on its own merits. In any given case, there are always two sides. Similarly, in your complaint also, the above-mentioned doubt will be there and in addition the opposite may have some other evidence also. But, ultimately, if you have solid evidence in your favour, your complaint can be decided on its own merits despite the above doubt.     

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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]

You may file an application for that purpose. It is in the discretion of the tribunal to allow such application if it is in the interest of justice.     

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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 319 of the Criminal Procedure Code empowers the court to add a new accused in a pending trial or inquiry of an offence:

“319. Power to proceed against other persons appearing to be guilty of offence.—(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub-section (1) then—

(a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.”

Bombay High Court in the case of Amol Shripal Sheth v. Hari Om Trading Co., (2014) 6 Mah LJ 222 (Bom) : (2013) 3 AIR Bom R 820 : 2013 Cri LJ (NOC 451) 163, had allowed amendment in a complaint under Section 138 of the Negotiable Instruments Act for making correction in the name of the accused person.

In view of the above, you may perhaps be able to add the name of the company as an accused. You may try filing the application before the court seeking permission to do so. However, you may face a bigger problem. Even if you are successful in adding the name of the company as an accused at this late stage, the question is – did you issue legal notice to the “company” within 30 days of the cheque being returned to you by the bank? Such legal notice is mandatory. If you had not issued such legal notice to the company, one of the mandatory conditions for making out the offence of cheque dishonour under Section 138 would not be satisfied and the offence against company may not be complete.

     

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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 is too general and vague. It depends on the RTI reply concerned and its contents and the facts of the case. Some RTI replies may be admissible in evidence while some others may not be.

If the RTI reply encloses any document with it, such document may be admissible in evidence if it relates to some relevant facts under the provisions of the Evidence Act. In some specific situations, the RTI reply may itself be considered as a document and may be admissible if it is relevant.

No general answer can be given to your question. It depends on the facts of each case. Likewise, whether it would be admissible as secondary or primary evidence, would again depend on facts of the case concerned. For example, if the RTI reply itself is considered as a document, it may be primary evidence of itself, being the original document.

Section 20 of the Right to Information Act provides for penalty to be imposed on the concerned Public Information Officer, inter alia, for knowingly giving incorrect, incomplete or misleading information. If no penalty is imposed for this, then the remedy is to file, may be, a writ petition before the High Court for suitable action in the matter. Perhaps, a complaint may also be made to the higher officers of the department concerned for a disciplinary action.

     

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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]

Order 5 of the CPC relates to “Issue and Service of Summons”. Please go through the same if you are appearing in person in your case. In particular, go through Rule 15, Rule 17, Rule 9(5) of Order 5 to know about the relevant rules that may apply in your case. These specific rules are reproduced below:

“15. Where service may be on an adult member of defendant’s family.— Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on his at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him.

Explanation.— A servant is not a member of the family within the meaning of this rule.”

“17. Procedure when defendant refuses to accept service, or cannot be found.— Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant 1[who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time] and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.”

“9(5) When an acknowledgment or any other receipt purporting to be signed by the defendant or his agent is received by the Court or postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee or by any person authorised by the courier service to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons or had refused to accept the summons by any other means specified in sub-rule (3) when tendered or transmitted to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant:

Provided that where the summons was properly addressed, pre-paid and duly sent by registered post acknowledgment due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgment having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of issue of summons.”

Apply these rules, in particular Rule 9(5) quoted above, to the facts of your case and see whether the service is complete. Also check from the detailed facts of your case whether the conditions mentioned in Rule 15 above have been satisfied to do the service on husband of the defendant, who appears to have refused to take service. It is not possible for us to comment on the merits or consequences of facts of a case in the absence of having seen detailed facts.

     

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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]

In a private complaint case, such as yours, if the complainant has appointed an advocate, the court will generally not insist on the personal attendance of the complainant except when it may be necessary. So, if your father, who is the complainant, has appointed an advocate to represent him and conduct the case, he should be in a position to get exemption from personal attendance, except when it is found to be necessary.

Living at a far-away place from the court becomes an additional ground to seek exemption from personal attendance, though it is not necessary that the court will always agree to dispense with the personal attendance on this ground alone.

Your father can make an application to the court for personal exemption.

Also see:

• Dispensing with personal attendance of accused or complainant – difference between Sections 205 and 317 of Cr.P.C.
• Permanent exemption from appearing in cheque bounce 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]

Please do not make it an addiction to ask question for the sake of asking question. What exactly is the specific issue that you are facing? Do not ask academic question. See the relevant sections in the Protection of Women from Domestic Violence Act to get legal aspects.

     

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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]

Have already replied partly to your first supplementary question in paragraphs 3 and 4 of my previous reply. Please check again. I cannot answer more than that since without seeing full papers, it is not possible to answer on facts; but I have given you the legal provision in that regard. Show your papers to some local lawyer to get full advice on that issue.

For your second question about burden of proof, see Section 103 of the Evidence Act, which says that: “The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

     

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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 19 of the Contract Act, 1872, says that when consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.

Therefore, your opposite party can approach the court in this regard.

Section 19 further says that a party to a contract, whose consent was caused by fraud or misrepresentation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representation made had been true.

In view of this, if your opposite party has alleged that his consent was caused by fraud or misrepresentation, then he may insist that the contract shall be performed, etc., as mentioned above.

Burden to prove coercion would be on the party that alleges such coercion.

Interim order would depend on the facts and circumstances of each case, depending on where the balance of convenience lies, and whether grant or non-grant of interim order in favour of one or the other party would cause any irretrievable injury or damage which cannot be subsequently undone, and other relevant factors.

Every agreement is not requited to be registered, it depends on the nature of the agreement.

     

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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]

You have not mentioned the full facts. One has to see the language used in the maintenance order passed by the court. From what you have mentioned, it appears that only interim maintenance has been ordered to be paid during the pendency of the petition (which appears to be the divorce petition). If the order says that maintenance shall be paid during the pendency of the above petition, then with the disposal of the said divorce petition, the interim maintenance order may perhaps come to an end. But, in the absence of full facts, it is difficult to say exactly. Therefore, you’ll have to check the language used in the order of the court.

But, even if such maintenance is discontinued due to withdrawal of the divorce petition, wife can claim maintenance under other provisions of law (such as Section 125 of the Criminal Procedure Code).

The answer to your second question is “yes”. The husband can oppose the petition for restitution of conjugal rights which has been filed by the wife, and if wife succeeds in such petition the husband can challenge that order in the higher 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]

You can make an application to the Motor Accidents Claims Tribunal under Section 174 of the Motor Vehicles Act, 1988, and the amount can be recovered from the person concerned (against whom award is passed) by the Collector as an arrear of land revenue. This section is as under:

“174. Recovery of money from insurer as arrear of land revenue.—Where any amount is due from any person under an award, the Claims Tribunal may, on an application made to it by the person entitled to the amount, issue a certificate for the amount to the Collector and the Collector shall proceed to recover the same in the same manner as an arrear of land revenue.”

 

     

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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]

The appellate court has the power to determine a case finally or remand the case back to the lower court for fresh hearing/order. This power is available both under the Criminal Procedure Code (Section 386) and under the Civil Procedure Code (Section 107).

     

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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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