No more leniency to govts in delayed appeals: SC

Supreme Court of India

TIMES OF INDIA

NEW DELHI: For long, government and its departments have been getting away lightly in the judiciary as courts have been lenient in viewing the delay in filing of appeals by them. But, the Supreme Court on Friday put an end to it and decided to treat government with the same yardstick used for other litigants when it comes to filing of appeals after the statutory deadline. Dismissing an appeal filed by the chief of the Post Master General against Living Media India Ltd; after 427 days of the statutory period of limitation, a bench of Justices P Sathasivam and J Chelameswar said the apex court was no more willing to buy the stock response of government departments – delay was due to red-tape and pendency of file on a bureaucrat’s desk for long.

“The law of limitation undoubtedly binds everybody including the government,” the bench said refusing to accept the contention that delays in filing of appeals by government departments are due to impersonal machinery and inherited bureaucratic methodology of making multiple notes. “Why the delay is to be condoned mechanically merely because government or wing of the government is a party before us?” the bench asked.

“It is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona-fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape,” said Justice Sathasivam, who wrote the judgment.

This could hit governments hard as they are the biggest litigant before the judiciary accounting for about 40% of total cases pending in various courts either as petitioner or respondent. The sheer volume of work and lack of enough equipped manpower often leave the decision of whether to file an appeal in a limbo till higher-ups take a view of it. Besides, the decision to reduce government litigation has not trickled down.

Justice Sathasivam said: “The government departments are under a special obligation to ensure that they perform their duties with due diligence and commitment. Condoning of delay is an exception and should not be used as an anticipated benefit for government departments.”

He said the law must weigh every litigant on the same scale and “should not be swirled for the benefit of few”. On the case at hand, the court slammed the postal department, saying “From day one the department or the persons concerned have not evinced diligence in prosecuting the matter to this court by taking appropriate steps”.

http://timesofindia.indiatimes.com/india/No-more-leniency-to-govts-in-delayed-appeals-SC/articleshow/12039556.cms

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Wife can’t be simply evicted from home after divorce: Supreme Court

Supreme Court of India

PTI NEWS

 A Hindu woman cannot be evicted out of the matrimonial home after divorce except through procedure established by law, as there is no provision for her automatic eviction, the Supreme Court has ruled. A bench of justices G S Singhvi and S D Mukhopadhyay, in a judgement, said that though a woman may not have a legal right to continue in the house of the ex-husband, yet the latter cannot forcibly evict her. The apex court gave the ruling while upholding an appeal filed by Ranjit Kaur challenging the decisions of the Punjab and Haryana high court which had upheld her eviction from the house of a disputed property upon a decree of divorce granted to the husband Major Harmohinder Singh, an Army officer. “Learned counsel is right in his submission that even though in the decree of divorce, the appellant has not been given a right of residence and her occupation of the suit property can be treated as unauthorised, respondent No 1 (Singh) cannot evict her except after following the procedure established by law. “The material placed on record shows that the appellant had entered into the property as the wife of respondent No. 1. Therefore, even though, after passing of the decree of the divorce she may not have a legal right to continue to remain in possession of the suit property, respondent No. 1 cannot be given liberty to forcibly evict her,” the bench said.

Appeals for restraint

Courts rarely follow a rule to reduce the number of appeals clogging the system even further.

M J Antony  IN THE BUSINESS STANDARD/ New Delhi December 1, 2010, 3:14 IST

Two frustrating blots on litigation that are evident to anyone who visits the courts are adjournments at the drop of a gown and endless appeals in search of perfect justice. The first problem can be cured only if judges and lawyers impose some self-discipline. Parliament has tried to control the second snag by enacting rules to cap the number of appeals. But judicial discipline often crumbles in the face of counsel’s persistence and the system is clogged by appeals. The Supreme Court has referred to this issue several times in the past, and repeated it in two judgments in recent weeks, hoping the number of appeals would be reduced by strictly following the new provisions of the Civil Procedure Code.

According to Section 100 of the code, a second appeal to the high court is permissible only if it involves “substantial questions of law”. The memorandum of appeal must precisely state the substantial question and the court is bound to formulate it before hearing the case.

However, in many cases, an appeal becomes a repetition of the same arguments, wasting the appellate court’s time and public money. The Supreme Court stated last month in the case, Municipal Committee, Hoshiarpur vs Punjab State Electricity Board, that it was the obligation of courts below “to further the clear intent of the legislature and not to frustrate it by ignoring the same”. The court cannot entertain a second appeal unless a substantial question of law is involved, since the second appeal does not lie on the ground of erroneous findings of fact based on a re-appreciation of evidence.

In this case involving inflated electricity bills, the first appellate court concurred with the fact findings of the court below. However, the high court, without framing any question of law, decided the case against the municipal committee. So the high court judgment was set aside.

The court had dealt with the problem of profusion of appeals, up the ladder of the judicial hierarchy, earlier too. In the case, Jai Singh vs Shakuntala (2002), it stated that appeals should be entertained only in rare cases. “It is only in very exceptional cases and on extreme perversity that the authority to examine the same in extenso stands permissible — it is a rarity rather than a regularity and thus it can be safely concluded that while there is no prohibition as such, the power to scrutiny can be exercised only in very exceptional circumstances and upon proper circumspection.”

In another recent case, Leela Soni vs Rajesh Goyal, the court further clarified: “No second appeal can be entertained by a high court on questions of fact, much less can it interfere in the findings of fact recorded by the lower appellate court. This is so, not only when it is possible for the high court to take a different view of the matter but also when the high court finds that conclusions on questions of fact recorded by the first appellate court are wrong.”

In another case, Mohd Saud vs Dr (Maj) Shaikh Mahfooz, there was a conflict of views between two division benches of the Orissa High Court and, therefore, the issue was decided by a full bench of that court. The full bench held that after the amendment of the relevant provisions in the code (Section 100-A with effect from July 2002), no appeal shall lie against the order or judgment passed by a single judge. The Supreme Court agreed with this view. It also remarked that the different views taken by some courts were due to bad drafting of the provisions.

“To resolve this conflict we have to adopt a purposive interpretation. The whole purpose of introducing Section 100-A was to reduce the number of appeals as the public in India was being harassed by the numerous appeals provided in the statute,” the Supreme Court declared. It gave an interpretation of the amendment to avoid a strange situation in which the new provision would defeat the purpose of the amendment itself.

According to the 54th report of the Law Commission, any rational system of administration of civil law should provide for only two appeals. The search for absolute truth, however laudable, must be reconciled with the doctrine of finality.

It might, however, seem harsh on the litigants who are dissatisfied with a bad judgment, especially since the general perception is that the quality of judges has gone down. Even the Supreme Court was compelled to remark last week that there was “something rotten” in the Allahabad High Court, a venerable institution. At the same time, many litigants would save their money and energy by not following the advice of lawyers who encourage further gambling in the courts.

http://www.business-standard.com/india/news/m-j-antony-appeals-for-restraint/416656/

Dowry killings deserve death penalty: Supreme Court

J. Venkatesan in THE HINDU

The hallmark of a healthy society is the respect it shows to women, says Bench

 

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

New Delhi: Expressing serious concern over dowry death cases where young women are being killed, the Supreme Court has said that such offences are to be treated as the ‘rarest of rare’ ones and extreme punishment of death should be awarded to offenders. A Bench consisting of Justices Markandey Katju and T.S. Thakur said: “Although bride-burning or bride-hanging cases have become common in our country, in our opinion, the expression ‘rarest of rare’ does not mean that the act is uncommon, it means that the act is brutal and barbaric. Bride killing is certainly barbaric.”

Writing the judgment, Justice Katju said, “Crimes against women are not ordinary crimes committed in a fit of anger or for property; they are social crimes. They disrupt the entire social fabric. Hence, they call for harsh punishment. Unfortunately, what is happening in our society is that out of lust for money people are often demanding dowry and after extracting as much money as they can they kill the wife and marry again and then again they commit the murder of their wife for the same purpose. This is because of total commercialisation of our society, and lust for money which induces people to commit murder of the wife. The time has come when we have to stamp out this evil from our society, with an iron hand.”

The Bench said: “The hallmark of a healthy society is the respect it shows to women. Indian society has become a sick society. This is evident from the large number of cases coming up in this court (and also in almost all courts in the country) in which young women are being killed by their husbands or by their in-laws by pouring kerosene on them and setting them on fire or by hanging/strangulating them. What is the level of civilisation of a society in which a large number of women are treated in this horrendous and barbaric manner? What has our society become — this is illustrated by this case.”

High Court verdict

In the instant case, the deceased Geeta was married to Satya Narayan Tiwari in December 1997. On November 3, 2000 she died. The father of the deceased Surya Kant Dixit filed a complaint that his daughter was killed by the son-in-law and his mother, Bhuvaneswari Devi, as he could not meet the demand for a Maruti car as part of the dowry. The trial court acquitted Tiwari and his mother. On appeal, the Allahabad High Court convicted them under Sections 304B, 498-A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act and awarded life sentence. The appeal by Tiwari and his mother is directed against this judgment.

Dismissing the appeal, the Supreme Court Bench said: “The manner in which the deceased was done to death, i.e., by first strangulating her and then setting her afire, needed at least two persons, because she [deceased] was also a young lady aged about 24 years. We have carefully perused the impugned judgment and order of the High Court and the judgment of the trial court and other evidence on record. We see no reason to disagree with the judgment and order of the High Court convicting the appellants. In fact, it was really a case under Section 302 IPC and death sentence should have been imposed in such a case, but since no charge under Section 302 IPC was levelled, we cannot do so, otherwise, such cases of bride burning, in our opinion, fall in the category of rarest of rare cases, and hence deserve death sentence.”

The Bench cancelled the bail bonds of the appellants and directed that they be taken into custody to serve the remaining period of sentence.

Source : http://www.hindu.com/2010/11/01/stories/2010110162761300.htm

Delays in filing appeals: Court notice to all Chief Secretaries

J. Venkatesanin The HINDU

“This racket has been going on for a long time,” says Supreme Court


“Appeals are filed after a long time to get them dismissed on the ground of delay” It is high time this malpractice is severely rooted out, says Bench


New Delhi: Taking a serious view of the inordinate delay in filing appeals by the officials, sometimes in connivance with the parties concerned, the Supreme Court has issued notice to the Chief Secretaries of all the States/Union Territories with a view to evolving a mechanism to curb the delay.

A Bench of Justices Markandey Katju and T.S. Thakur in an interim order said: “It appears that cases are coming up before this court and probably before the High Courts also, where appeals or writ petitions are filed after inordinate delay and an explanation is sought to be given in the application for condonation of delay in such cases filed by the government or the State authorities that the file was moved from one desk to another or the approval was sought from the higher authority which took considerable time.”

The Bench said: “We feel that the beneficiary of the judgment may be hand-in-glove with the officials in the government department who deal with the files, and files are suppressed for a long period, and then the appeal before the High Court or Supreme Court is filed after a long delay to get the appeal dismissed on the ground of delay. Huge amounts of public money or public property may be involved and the government will be the loser on the technical point of limitation in such cases.”

Expressing concern, the Bench said: “This racket has been going on for a long time not only before the Supreme Court but also before the High Courts. Now the time has come that this racket is ended and the officials responsible given severe punishment.”

“Regular feature”

The Bench which was dealing with an appeal filed by the State of Jharkhand said: “This practice is often adopted by officials of various State governments and has become a regular feature. The explanation usually given for the delay is the red tape in government offices. It is high time that this malpractice is severely rooted out and an effectual mechanism adopted all over the country so that such delays do not occur in future.”

The Bench directed that notice be issued to the Chief Secretaries of all States so that effective action might be taken in this regard. The Chief Secretary of Jharkhand was directed to explain what action had been taken against the officials concerned for causing the delay in filing the present appeal. The Bench listed the matter for further hearing on November 8 and asked Solicitor-General Gopal Subramaniam to render assistance in this matter.

Source : http://www.hindu.com/2010/10/06/stories/2010100659960600.htm