Himachal Pradesh High Court Digest 16 to 30, September 2023

Himachal Pradesh High Court Digest 16 to 30, September 2023

Nominal Index

Ajmer Vidyut Vitran Nigam Ltd. Vs. Bansal Generation Ltd.
2023 STPL(Web) 187 HP: Arbitration – Condonation of Delay

Amar Singh & Others Vs. State Of H.P. & Others
2023 STPL(Web) 210 HP: Damages Suit – Non operation of query 

Avtar Singh Vs. State Of Himachal Pradesh & Others
2023 STPL(Web) 203 HP: Service Law – Reduction in rank

Avinash Chander & Others Vs. State Of Himachal Pradesh & Others
2023 STPL(Web) 220 HP: Service Law – Delay and Laches

Balbir Singh & Another Vs. Qutubdeen & Another
2023 STPL(Web) 211 HP: Additional Evidence – Speaking order

Bachno Devi And Oth Vs. Chandan Verma And Others
2023 STPL(Web) 201 HP: Jurisdiction of Civil Court – Evacuee Property

Banka Dei (Since Deceased) Through Her Lrs Vs. Watuli Devi
2023 STPL(Web) 222 HP: Court Fee – Valuation of Suit

Bidhi Singh Vs. Mehar Singh
2023 STPL(Web) 185 HP: Will – Not Proved

Bhagat Ram And Others Vs. State Of Himachal Pradesh And Others
2023 STPL(Web) 214 HP: Service Law – Non Revision of Pay Scale

Beverley Singh Vs. Tejinder Singh
2023 STPL(Web) 191 HP: Quashing of order – Administrative function

Bhagat Ram & Others Vs. State Of H.P & Others
2023 STPL(Web) 197 HP: Injunction – No injunction against true owner

Bhag Chand Vs. State Of Himachal Pradesh And Others
2023 STPL(Web) 219 HP:  Service Law – Recovery

Devinder Singh And Another Vs. State Of Himachal Pradesh
2023 STPL(Web) 199 HP: Cruelty – Conviction set aside

Director, Doordarshan Kendra And Another Vs. Jai Chand And Others
2023 STPL(Web) 221 HP: Jurisdiction of Labour Law – Regularization

Gopal Tanta Vs. Anita Tanta
2023 STPL(Web) 213 HP: Divorce – Desertion and Cruelty

General Manager Northern Railway Vs. Des Raj & Others
2023 STPL(Web) 195 HP: Land Acquisition – Compensation enhanced

Jan Kalyan Sangharsh Samiti Vs. State Of Himachal Pradesh
2023 STPL(Web) 179 HP: Creation of Sub Tehsil – Challenge to

Jitender Gupta Vs. State Of H.P. & Anr.
2023 STPL(Web) 180 HP: Service Law – Pay Scale

Karam Singh & Others Vs. Gorkha Ram & Others
2023 STPL(Web) 196 HP: Wrong Mutation – Settlement

Karan Singh & Another Vs. Veena Kumari & Others
2023 STPL(Web) 206 HP: Sale by Co Sharer of His Share – Validity of

Kartik Katwal Vs. Himachal Pradesh Urban Development Authority And Others
2023 STPL(Web) 207 HP: Service Law – Appointment

Kuldeep Singh Vs. Harbans Lal (Since Deceased) Through His Legal Representatives And Others
2023 STPL(Web) 205 HP: Appeals from original decrees – Maintainability of Appea

Kuldeep Singh Rana Vs. State Of H.P. & Ors.
2023 STPL(Web) 208 HP: Service Law – Payment of Salary

Land Acquisition Collector & Others Vs. Ashok Kumar & Others
2023 STPL(Web) 209 HP: Land Acquisition – Compensation enhanced

Lal Singh And Others Vs. State Of Himachal Pradesh And Another
2023 STPL(Web) 218 HP: Common Land – Bar on Jurisdiction of Civil Court

Manish Kumar And Another Vs. State of Himachal Pradesh
2023 STPL(Web) 175 HP: Service Law – Promotion

Mamta Rani Vs. Ram Dass
2023 STPL(Web) 230 HP: Jurisdiction of Civil Court – When not barred

Maya Devi Vs. Pradeep Chand & Others
2023 STPL(Web) 223 HP: Recalling of witness – Recall only for who is already examined

Mortaza Hassan Ali Sheikh Vs. Narcotics Control Bureau
2023 STPL(Web) 226 HP: NDPS – Conviction set aside

Naresh Kumar Vs. Amra Devi And Others
2023 STPL(Web) 212 HP: Relationship of Husband and wife – Proof of

Paramjit Singh & Pamma Vs. State Of Himachal Pradesh
2023 STPL(Web) 172 HP: NDPS – Conviction set aside

Shri Pardeep Kumar Vs. Smt. Deepa Singha And Another
2023 STPL(Web) 204 HP: Production of Document – Rejection of Application

Ramesh Chand Vs. Prem Lal
2023 STPL(Web) 200 HP: Civil Procedure – Bar on Fresh Suit

Ramesh Chand Vs. State Of H.P. & Another
2023 STPL(Web) 216 HP: Service Law – Termination

Ram Gopal And Others Vs. Brij Lal (Since Deceased) Through Lrs.
2023 STPL(Web) 189 HP: Spot Inspection – Power of Judge

Ram Rattan And Another Vs. Shanti Devi And Others
2023 STPL(Web) 198 HP: Amendment of Pleadings – If OP right is confined to answer the amended pleadings only

Ranju Ram & Anr. Vs. Tulsi Ram & Others
2023 STPL(Web) 171 HP: Res judicata – Suit not barred

Ranjiv Paul & Ors. Vs. Union Of India & Ors.
2023 STPL(Web) 193 HP: Service Law- Pension

Rakesh Atwal Vs. State Of H.P. & Ors.
2023 STPL(Web) 194 HP: Service Law – Delay in Claim

Rikhi Ram Vs. Dhannu Alias Prem Dass (Deceased) Through Lrs & Others
2023 STPL(Web) 176 HP: Revenue Entries – Rebuttal by oral evidence

Roshan Lal Vs. Rakesh Kumar
2023 STPL(Web) 174 HP: Civil Procedure – Refusal to accept summons

Rudra-Xi Infrastructure Pvt. Ltd. Vs. Municipal Corporation Shimla
2023 STPL(Web) 177 HP: Extension of Bank Guarantee – Principle of restitutio

Rajeev Sharma Vs. Himachal Pradesh State Pollution Control Board
2023 STPL(Web) 215 HP: Service Law – Regularization

Raman Kumar Vs. State Of Himachal Pradesh
2023 STPL(Web) 224 HP: POCSO – Conviction set aside

Ravi Pal Vs. Des Raj (Since Deceased) Through His Lrs.
2023 STPL(Web) 227 HP: Workman Compensation – Claim fails

Ram Singh Vs. Raman Kumar Sharma
2023 STPL(Web) 229 HP: Recovery Suit – Breach of contract by defendant

Sanjida Vs. Kabirudeen And Another
2023 STPL(Web) 170 HP: Rape – Acquittal valid

Sudarshan Banga Vs. Mumtaz Abbas Naqvi
2023 STPL(Web) 178 HP: Eviction – Substituted Service

Sudhama (Since Deceased) Through His Lrs. Vs. Laiq Ram And Others
2023 STPL(Web) 183 HP: Tenancy – Inheritance

Simro Devi Vs. Onkar Singh
2023 STPL(Web) 181 HP: Divorce – False case of second marriage

Shyam Singh Vs. Joginder Singh
2023 STPL(Web) 182 HP: Review – Exercise of Power

Shanti Devi Vs. Pritam Singh
2023 STPL(Web) 188 HP: Specific Performance of the Agreement – Ready and willing to perform his Part of the Contract

Shupa Ram Vs. State Of Himachal Pradesh
2023 STPL(Web) 190 HP: Murder – Chain Complete

Suresh Kaushal Vs. State Of H.P. & Others
2023 STPL(Web) 217 HP: Service Law – Disciplinary Authority and Appellate authority is same

Satya Nand & Others Vs. State Of H.P. & Another
2023 STPL(Web) 192 HP: Service Law – Regularization

State Of Himachal Pradesh & Another Vs. Kanta Devi & Others
2023 STPL(Web) 186 HP: Arbitration – Challenge to award

State Of Himachal Pradesh, Through Collector, Shimla Vs. Om Prakash And Others
2023 STPL(Web) 202 HP: Land Ceiling – Landowner

Sohan Singh & Anr. Vs. State Of Himachal Pradesh
2023 STPL(Web) 225 HP: NDPS – Conviction Set aside

Smt. Sushil Kumari & Others Vs. Smt. Kaushalya Devi & Others
2023 STPL(Web) 228 HP: Sale of specific part of Land – If purchaser become co sharer in whole land

Tsewang Vs. State Of Himachal Pradesh
2023 STPL(Web) 184 HP: POCSO – Highly improbable Case

Subject Index

Arbitration

Arbitration and Conciliation Act, 1996 – Section 34 – Arbitration – Challenge to award – Held: The respondent did not dispute that the complete site was not handed over to the contractor. The fact that payment of 75. 57% was made to the Contractor shows that the Contractor has executed 75% work. Since it is admitted that 25% of land fell within the forest area; therefore, the conclusion drawn by the learned Arbitrator that the Contractor was not at fault cannot be faulted. The award of interest @9% per annum is not excessive. Award valid (Para 17 to 30) State Of Himachal Pradesh & Another Vs. Kanta Devi & Others: 2023 STPL(Web) 186 HP

Limitation Act, 1963 – Section 14 – Arbitration and Conciliation Act 1996 – Section 34 – Arbitration – Condonation of Delay – Delay in challenge to award – Held: The benefit of Section 14 of the Limitation Act could be availed by the petitioner, if it could show firstly that the prosecution of proceedings before wrong forum was bona fide and secondly it was pursued with due diligence. Both the requirements of Section 14 of the Limitation Act i.e. the bona fide in prosecuting the proceedings before wrong forum and due diligence are clearly missing. Petitioner is a Public Sector Undertaking and cannot avail the benefit of ignorance. – No Condonation of delay – Petition dismissed. (Para 11, 14, 15) Ajmer Vidyut Vitran Nigam Ltd. Vs. Bansal Generation Ltd.: 2023 STPL(Web) 187 HP

Civil

Indian Evidence Act, 1872 – Section 74, 76 – Code of Civil Procedure, 1908 – Section 11 – Res judicata – Suit not barred – Pleadings are not Public documents – They have to be proved – Held: it was necessary for the defendant to prove the pleadings in the previous suit, in the absence of which the plea of res judicata could not have been adjudicated. The pleadings do not fall within the definition of a public record and cannot be proved by mere production of the certified copy; hence, no reliance could have been placed upon the certified copy of the pleadings filed in the present case, which were not proved by examining the competent person. Pleadings of earlier suit not proved so no reliance can be put on them – Suit not barred by resjudicata – (Para 21, 27, 28) Ranju Ram & Anr. Vs. Tulsi Ram & Others: 2023 STPL(Web) 171 HP

Limitation Act, 1963 – Section 5 – Condonation of delay in filling appeal – Inordinate delay – No sufficient cause – No Condonation of delay (Para 10, 24) Roshan Lal Vs. Rakesh Kumar: 2023 STPL(Web) 174 HP

Code of Civil Procedure, 1908 – Order 5 Rule 17 – Civil Procedure – Refusal to accept summons – Process Server affixed copy of the notice on the homestead and the report was made to the Court. No reason why a public official would be making a wrong report – Summons held to be properly served.

It cannot be said that the service is bad because the report is not witnessed by an independent person. (Para 22, 23, 24) Roshan Lal Vs. Rakesh Kumar: 2023 STPL(Web) 174 HP

HP Land Revenue Act, 1954 Section 32 – Revenue Entries – Rebuttal by oral evidence – The entries in the revenue record could not have been rebutted by the oral evidence (Para 25) Rikhi Ram Vs. Dhannu Alias Prem Dass (Deceased) Through Lrs & Others: 2023 STPL(Web) 176 HP

Indian Evidence Act, 1872 – Section 74, 77 – Public Document – Examining the author – A duly certified copy of ‘Rapat Rojnamcha’ as maintained by the Patwari, is public document and admissible in evidence in view of Section 77 of the Evidence Act. No need to examining the author.(Para 19) Rikhi Ram Vs. Dhannu Alias Prem Dass (Deceased) Through Lrs & Others: 2023 STPL(Web) 176 HP

Limitation – Starting Points – The revenue entries were changed in the year 1944 and the suit was filed in the year 1993 – Held: Mere adverse entry will not have the effect of commencement of limitation and the cause of action will accrue to the plaintiffs from the date when the rights of the plaintiffs are actually invaded. (Para 34) Rikhi Ram Vs. Dhannu Alias Prem Dass (Deceased) Through Lrs & Others: 2023 STPL(Web) 176 HP

Adverse inference – When not made out – First Appellate Court held that the defendant did not appear in the witness box and examined his Power of Attorney and took the non-examination of the defendant as an adverse inference. Held: The present case was based on the revenue record and the sale deed. Learned First Appellate Court has not shown that any fact was within the exclusive knowledge of the defendant for which his appearance is necessary. The claim of defendant could not be rejected on this ground. (Para 40, 43) Rikhi Ram Vs. Dhannu Alias Prem Dass (Deceased) Through Lrs & Others: 2023 STPL(Web) 176 HP

Extension of Bank Guarantee – Principle of restitution – Petitioner was unable to enforce the Bank guarantee due to restrain order by Court. The Bank guarantee lapsed during the continuation of the orders passed by the Court. When the order was vacated, due to the withdrawal of the main petition, the petitiner was deprived of the Bank guarantee, which was enforceable on the date of the application and the initial order passed by the Court. Thus, the principle of restitution demands that the Company should furnish a Bank guarantee to the petitioner. This would put both the parties in a situation, in which they were before approaching the Court. This would also prevent the Company from taking benefits of the orders passed by the Court.(Para 10) Rudra-Xi Infrastructure Pvt. Ltd. Vs. Municipal Corporation Shimla: 2023 STPL(Web) 177 HP

Code of Civil Procedure, 1908 – Rule 20, Order 5 – H.P. Urban Rent Control Act, 1987 – Eviction – Substituted Service – The process server had repeatedly reported that the respondent/tenant had been residing in Roorki, there was no occasion for directing the service to be effected through publication in newspaper having circulation in Shimla. Substituted service held not valid. (Para 11, 12) Sudarshan Banga Vs. Mumtaz Abbas Naqvi: 2023 STPL(Web) 178 HP

H.P. Urban Rent Control Act, 1987 – Section 24 (3) – Eviction – Appellate Authority – Remand – Plea that as per the mandate of Section 24 (3) of the Act, learned Appellate Authority had jurisdiction to hold further inquiry either himself or through the Controller, the wholesome remand is not permissible. Plea rejected – Held: In the instant case, entire proceedings were held ex-parte against the tenant and he did not have opportunity to show cause against the application filed by the landlord. To say that in such like cases also the Appellate Authority should hold further inquiry after setting aside ex-parte order will mean that the trial will have to be conducted by such authority and such exercise will take away the right of appeal of either of the parties. There is no provision of appeal under Act against the order passed by the Appellate Authority. (Para 5, 8) Sudarshan Banga Vs. Mumtaz Abbas Naqvi: 2023 STPL(Web) 178 HP

Constitution of India, 1950 – Article 226 – Creation of Sub Tehsil – Challenge to – Held: In the present case, no arbitrariness has been shown. No provision of law or constitution was brought to the notice of the Court that would prevent the State from opening a Sub-Tehsil at any particular place on public demand. Hence, the decision of the State Government cannot be faulted. No case is made out of the violation of any fundamental law or statutory provision.(Para 19, 22) Jan Kalyan Sangharsh Samiti Vs. State Of Himachal Pradesh: 2023 STPL(Web) 179 HP

Hindu Marriage Act, 1955 – Section 13(i)((ia) – Divorce – False case of second marriage – Cruelty – Appeal by wife against grant of divorce – Held: Filing a false complaint by one spouse against another which results in the acquittal constitutes cruelty. In the present case also, the wife filed a complaint against the husband for the commission of offences punishable under Sections 494 and 506 of IPC asserting that the husband had solemnized a second marriage, which resulted in an acquittal of the husband. Therefore, the learned Trial Court rightly held that the cruelty was established on record. Divorce rightly granted. (Para 18) Simro Devi Vs. Onkar Singh : 2023 STPL(Web) 181 HP

Hindu Marriage Act, 1955 – Section 25 – Hindu Marriage – Maintenance & Permanent Alimony – The husband was posted as an ASI in the Police Department. Thus, he is a salaried person. The appellant-wife has not filed any proof of his income; therefore, the income has to be assessed based on guesswork. The fact that the wife is claiming that she has borne the expenses of marriage of daughter shows that she had income; otherwise, she would have been unable to bear the expenses of the marriage.

Keeping in view that fact that she is residing in the matrimonial home and cultivating the land, the permanent alimony of Rs. 5,000/- is awarded to her, which shall include the amount of Rs. 1,000/- already awarded to the wife under Section 125 of Cr.P.C. (Para 21 to 26) Simro Devi Vs. Onkar Singh : 2023 STPL(Web) 181 HP

Code of Civil Procedure, 1908 – Order 47 Rule 1– Review – Exercise of Power – The power of review can only be exercised if there is an error apparent on the face of the record. The error should be self-evident and cannot be discovered by a long process of reasoning. No specific Pleadings – No evidence can be looked – No error appearent on the face of record. Review dismissed.(Para 14, 25) Shyam Singh Vs. Joginder Singh : 2023 STPL(Web) 182 HP

Will – Not Proved – Cancelation deed – Both lower courts held that Will was not proved and in any case, the Will propounded by the plaintiff was cancelled by the execution of the cancellation deed – Such will cannot be relied. (Para 15) Bidhi Singh Vs. Mehar Singh: 2023 STPL(Web) 185 HP

Tamleeknama – Valid – Held: Both the learned Courts below have concurrently held that the execution of Tamleeknama was proved as per the law. DW-2, stated that Balia had got Tamleeknama executed in his presence  – There is nothing in the cross-examination of this witness to show that he was making an incorrect statement; therefore, the finding of fact recorded by the learned Courts below that his statement was sufficient to prove the execution of Tamleeknama is based upon the evidence. (Para 16) Bidhi Singh Vs. Mehar Singh: 2023 STPL(Web) 185 HP

Custom – Proof of – Plea that the parties are Ghirth by caste and they are governed by the agricultural custom prevalent in Kangra, by which no person can dispose of the ancestral property without the legal necessity – Held: He has not mentioned any instances where the alienation of the joint ancestral property was made and it was set aside on the ground of the custom prevalent in the area – Custom not proved. (Para 19) Bidhi Singh Vs. Mehar Singh: 2023 STPL(Web) 185 HP

Specific Performance of the Agreement – Ready and willing to perform his Part of the Contract – Second appeal by defendant – Held:  The plaintiff has to show that he was prepared to carry out those parts of the contract to their logical end as depended upon his performance. The plaintiff has to prove that he had the requisite amount and he had taken all the steps for the execution of the sale deed – The defendant filed an appeal before this Court; however, no application for the stay of the execution of the judgment passed by the learned First Appellate Court was filed. Around 5 years have elapsed since the passing of the decree and it is not shown that the plaintiff had taken any steps to get the sale deed executed. These circumstances make it doubtful that the plaintiff remained ready and willing to perform his part of the agreement. The conclusions drawn by learned Courts below that the plaintiff was ready and willing to perform his part of the contract are not based upon evidence – Appeal allowed – Plaintiff suit dismissed. (Para 27, 31, 32) Shanti Devi Vs. Pritam Singh : 2023 STPL(Web) 188 HP

Time as essence of Contract – Specific Pleadings – Whether time is of the essence of the contract or not we are satisfied that the High Court was in error in allowing the respondents to raise this question in the absence of specific pleadings or issues raised before the trial court and when the case of time being the essence of the contract was not put forward by the respondents in the trial court.(Para 25) Shanti Devi Vs. Pritam Singh : 2023 STPL(Web) 188 HP

Code of Civil Procedure, 1908 – Order 18 Rule 18 – Spot Inspection – Power of Judge – The purpose of empowering the Court to inspect any property is to understand and appreciate the evidence but the Court cannot base its conclusion based on the observations made on the spot. The Court can carry out the spot inspection but cannot base its judgment on the result of the spot inspection carried out by it. First Appellate Court had heavily relied upon the observations made by the Court to contradict the site plan of the plaintiffs which was impermissible. (Para 19, 23) Ram Gopal And Others Vs. Brij Lal (Since Deceased) Through Lrs.: 2023 STPL(Web) 189 HP

Code of Civil Procedure, 1908 – First Appeal – Reasons to reserve trial court findings – The Learned Trial Court had given cogent reasons for relying upon the site plan of the plaintiffs and rejecting the site plan of the defendants. Learned First Appellate Court has not displaced those reasons and has relied upon the observations made on the spot as well as the absence of the passage in the site plan filed by the plaintiffs. First Appellate Court erred in reversing the well-reasoned judgment passed by the learned Trial Court without assigning any cogent reasons. (Para 30, 34) Ram Gopal And Others Vs. Brij Lal (Since Deceased) Through Lrs.: 2023 STPL(Web) 189 HP

Wrong Mutation – Settlement – Principle of Natural Justice – Held: The Settlement Officer merely puts a rubber stamp on the report of the Field Kanungo, which is not correct. Therefore, the failure to issue notice by the Settlement Collector will be fatal and will not be cured merely because the parties were present at the time of demarcation on the spot. There was a violation of the principle of natural justice. The mutation based on the order is not sustainable. (Para 20, 21) Karam Singh & Others Vs. Gorkha Ram & Others : 2023 STPL(Web) 196 HP

Injunction – No injunction against true owner – A person in settled possession can get the possession back if forcibly dispossessed, but he cannot seek an injunction against the true owner. Held: The plaintiffs were not being dispossessed forcibly. Therefore, the injunction could not have been granted to the plaintiffs on the plea that a trespasser cannot be ejected from the land in his/her possession forcibly. The plaintiffs cannot be held entitled to the relief of injunction against the true owner and the learned Courts below had rightly declined the injunction to the plaintiffs.(Para 16, 20, 21) Bhagat Ram & Others Vs. State Of H.P & Others : 2023 STPL(Web) 197 HP

Jurisdiction of Civil Court – Regularization of encroachment – Claim for regularization of encroachment – Held:  The plaintiffs claimed that they are entitled to regularization under the Policy. It was rightly submitted on behalf of the defendants that this is beyond the jurisdiction of the Civil Court. The plaintiffs are free to approach the competent authorities to seek the regularization under any Policy framed by the State Government, however, no such direction can be passed by the Civil Court. (Para 23) Bhagat Ram & Others Vs. State Of H.P & Others : 2023 STPL(Web) 197 HP

Code of Civil Procedure, 1908 – Order 6 Rule 17 – Amendment of Pleadings – If OP right is confined to answer the amended pleadings only – The defendants had changed the entire pleadings while filing the reply to the amended plaint – Whether a party can amend the entire pleadings after the other party has amended its pleadings or the right of the party is confined to the answer to the amended pleadings is the question – Held: When the plaintiff is allowed to amend his plaint, the defendant is entitled to amend his written statement. However, the scope of amendment available to the defendant is confined to the amendment effected in the plaint. The position of the law is clear that the legal representative has to proceed from the stage where the lis was pending. They cannot set out an independent claim. Thus, they were not entitled to file the additional written statement contrary to the written statement filed by their predecessor. (Para 1, 18, 21, 28) Ram Rattan And Another Vs. Shanti Devi And Others: 2023 STPL(Web) 198 HP

Adverse Possession – Long Possession not amount to adverse possession – Defendant come to know that he is in possession of plaintiff land only after demarcation – Means he did not know that he was in possession of the land of the plaintiffs and this fact came to the knowledge of the defendants only after the demarcation – Held: In the absence of any plea of the adverse possession, the plea taken by the legal representatives regarding their possession being adverse and in denial of the title of the real owner from the time of their predecessor could not have been accepted. (Para 30, 42) Ram Rattan And Another Vs. Shanti Devi And Others: 2023 STPL(Web) 198 HP

Code of Civil Procedure, 1908 – Order IX, Rule 9 – Order XXXIII, Rule 1 – Civil Procedure – Bar on Fresh Suit – Same cause of action – Plea on bar of Suit – Held: The defendant was required to establish that the previous suit was based upon the same cause of action as the present suit. This could have been done by bringing on record the pleadings in the previous suit and only then the Court could have determined whether the causes of action in the two suits were identical or not. Similarly, the plaintiff could have brought the pleadings, in the previous suit, which was withdrawn, on record to establish the present suit covers, the same subject matter or the claim as the previous suit. The defendant has not brought the pleadings on record and in the absence of the pleadings, the learned Courts below could not have refused to entertain the present suit on the ground that one suit was withdrawn and the other suit was dismissed in default. (Para 18) Ramesh Chand Vs. Prem Lal: 2023 STPL(Web) 200 HP

Code of Civil Procedure, 1908 – Res judicata – Suit not barred – Plea of Res judicata – Held: The previous suit was not heard and finally decided but it was dismissed in default of appearance; therefore, the court had rightly held that the present suit is not barred by the principle of res judicata. (Para 23) Ramesh Chand Vs. Prem Lal: 2023 STPL(Web) 200 HP

Encroachment – Possession – When a person has encroached on the land of others, the possession is the only remedy and no compensation can be awarded – Held: The defendant was found to be in possession over the part of the suit land. The defendant failed to show any right to retain the possession, therefore, the learned Courts below had rightly passed a decree for possession. (Para 29, 30) Ramesh Chand Vs. Prem Lal: 2023 STPL(Web) 200 HP

The Administration Of Evacuee Property Act, 1950 – Jurisdiction of Civil Court – Evacuee Property – Plea that Jurisdiction of Civil Court barred as suit property is Evacuee property – Held: In the present case, no question regarding the suit land being evacuee property or not was raised before the Court. The simple case of the plaintiffs is that evacuee property was sold to Jasjit Singh who sold it to plaintiffs no. 1 and 2 and Gyan Chand. Nobody is challenging the sale made in favour of Jasjit Singh by claiming that the suit land was not evacuee property and could not have been sold. Therefore, the learned Courts below had rightly held that the jurisdiction of the Civil Court was not barred. (Para 17) Bachno Devi And Oth Vs. Chandan Verma And Others : 2023 STPL(Web) 201 HP

Tenancy Proof of – Revenue entry – Bare entry of tenancy is not sufficient and one has to look at the column of rent to determine the tenancy and its conditions. Learned Courts below had rightly recorded that there was no entry regarding the rent in favour of defendant  hence, the revenue entry was insufficient to prove the tenancy. Defendant has not brought any material to justify the change; hence, the entry in favour of defendant is not sufficient to prove the tenancy. (Para 24, 29) Bachno Devi And Oth Vs. Chandan Verma And Others : 2023 STPL(Web) 201 HP

H.P. Ceiling and Land Holdings Act – Section 4(9) – Land Ceiling – Landowner – Held: Section 4(9) of the H.P. Land Revenue Act defines the landowner as the person not including a tenant or assignee of land revenue and every other person not mentioned in the clause who is in possession of the estate or the enjoyment of any part of the profits of estate.

It is apparent from the definition of the landowner that it is not confined to the owner of the land but includes every person who is in possession of an estate or share or portion or even enjoying any part of the profits of an estate except the tenant or assignee of land revenue. Thus, the submission that only an owner of land is covered within the definition of land owner under the Ceilings Act is not acceptable. (Para 16, 17) State Of Himachal Pradesh, Through Collector, Shimla Vs. Om Prakash And Others: 2023 STPL(Web) 202 HP

H.P. Ceiling and Land Holdings Act – Section 11 – Land Ceiling – Vesting of Land in Govt – Held: it is apparent from various provisions of the Ceiling Act that it is not confined to the land owned by a person but extends to the land which is mortgaged or leased out to the tenant. A specific provision has been made for the acquisition of the mortgagee’s rights by the State Government. (Para 26) State Of Himachal Pradesh, Through Collector, Shimla Vs. Om Prakash And Others: 2023 STPL(Web) 202 HP

H.P. Ceiling and Land Holdings Act – Section 11 – Land Ceiling – Vesting of Mortgaged Land in Govt. – It is clear that where the land includes the mortgaged land, only the mortgagee rights shall be deemed to have been acquired by the State Government; hence, the mortgage rights will also vest with the State Government as per the section. (Para 25) State Of Himachal Pradesh, Through Collector, Shimla Vs. Om Prakash And Others: 2023 STPL(Web) 202 HP

H.P. Ceiling and Land Holdings Act – Section 18 – Land Ceiling – Bar on Jurisdiction of Civil Court – The order was passed by the Collector under the provisions of the Act and in view of the bar under Section 18(2), the Civil Court cannot go into the question. The plaintiffs have sought a declaration regarding the invalidity of the order passed by the Collector and relief cannot be granted to the plaintiffs without setting aside the order; hence, the jurisdiction of the Civil Court is barred. (Para 36, 38) State Of Himachal Pradesh, Through Collector, Shimla Vs. Om Prakash And Others: 2023 STPL(Web) 202 HP

Code of Civil Procedure, 1908 – Order 11, Rule 14 – Production of Document – Rejection of Application – Intent to delay proceedings – No ingredients as to interfere with the order – Held: In exercise of its powers conferred under Section 115 of the Civil Procedure Code, the High Court interferes with the orders in case the learned Court below has either exercised jurisdiction not vested in it, or has failed to exercise jurisdiction vested in it or has exercised the jurisdiction vested in it with material irregularity.

In the present case, none of the these three ingredients are met so as to interfere with the order so passed by the learned Rent Controller. It is not the case of the petitioner that learned Rent Controller has exercised jurisdiction not vested in it because it is the application of the petitioner which stood adjudicated upon by the learned Rent Controller. Similarly, it cannot be the ground of the petitioner that the learned Rent Controller did not exercise jurisdiction vested in it because the application filed by the petitioner stood adjudicated upon by the learned Rent Controller. As far as the exercise of jurisdiction vested in it with material irregularity is concerned, here is a case where the respondent has filed an eviction petition against the petitioner in the year 2013 and till date the same is hanging fire. Filling applications only to delay proceedings – Petition dismissed. (Para 3, 4) Shri Pardeep Kumar Vs. Smt. Deepa Singha And Another: 2023 STPL(Web) 204 HP

Code of Civil Procedure, 1908 – Order 41, Rule 1 – Appeals from original decrees – Maintainability of Appeal – Dismissal of appeal by Appellate Court on ground of Maintainability – Suit resulted in Dismissal but counter claim allowed – Single appeal not maintainable – Separate appeal required for both – Held: These findings resulted in the decree of the counter claim and dismissal of the suit of the plaintiff. The plaintiff did not challenge the findings recorded by the learned Trial Court in the counterclaim, which means that these findings have attained finality. The learned First Appellate Court had rightly held that the appeal filed by the plaintiff would have been barred by the principle of res judicata. (Para 15, 20, 25, 42) Kuldeep Singh Vs. Harbans Lal (Since Deceased) Through His Legal Representatives And Others: 2023 STPL(Web) 205 HP

Sale by Co Sharer of His Share – Validity of  – Sale of Land – The Share of co sharer was more than what he sold – Held: The sale made by him regarding 10 marlas of land was within his share. Therefore, the learned Courts below erred in setting aside the sale where the vendor was found to be the co-sharer over the land more than what was sold by him.

It is declared that Sale Deed executed by defendant no. 3 in favour of defendants no.1 and 2 is invalid to the extent of 3/4th share in Khasra No. 753, however, the same will not prevent the defendant No. 2 and 3 from claiming 10 Marlas of land from the rest of the land owned by defendant no.3 at the time of partition. (Para 23, 24) Karan Singh & Another Vs. Veena Kumari & Others: 2023 STPL(Web) 206 HP

Land Acquisition – Compensation enhanced – Exemplar sale deed accepted – Looking to passage of time 30% addition made in it – Considering the extent of land acquired, in these cases, there is no need to deduct the value, out of the exemplar sale deed. Land has only been acquired for widening of the road. The value of the acquired land is enhanced from Rs.9,50,000/- per bigha to Rs.12,35,000/-, per bigha, along with all statutory benefits (Para 49, 50, 53) Land Acquisition Collector & Others Vs. Ashok Kumar & Others: 2023 STPL(Web) 209 HP

Contract Act, 1872 – Section 54, 56 – Damages Suit – Non operation of query – Refund of security – The boundary of the Demarcated Protected Forest (DPF), touches the quarry. The Forest Department forcibly stopped the operation of the quarry – Held: The plaintiff had paid a security of Rs.56,250/-. They were unable to operate the mine due to the objection of the Forest Department. This was an advantage derived by the Department and the plaintiffs were entitled to the recovery of the amount. Both the learned Courts below had rightly ordered the refund of this amount. (Para 37) Amar Singh & Others Vs. State Of H.P. & Others: 2023 STPL(Web) 210 HP

Contract Act, 1872 – Section 65, 70 – Damages Suit – Frustration of Contract – Query become not operational due to objection of forest department – Contract become impossible But no breach of Contract – No damages can be granted (Para 38) Amar Singh & Others Vs. State Of H.P. & Others: 2023 STPL(Web) 210 HP

Code of Civil Procedure, 1908 – Order 41 Rule 27 – Additional Evidence – Speaking order – Plea that application for additional evidence dismissed without speaking order – Held: First Appellate Court had specially mentioned in para 21 of the judgment that no plausible explanation was furnished for the non-production of the documents in the Trial Court for 6 years and the relevance of the documents was not established.

It cannot be said that the reasons furnished by the learned First Appellate Court for dismissing the application that the appellants failed to furnish any plausible explanation are without any material. It was a valid reason duly supported by the law as well as the record. Hence the grievance that the application was dismissed by a non-speaking order is not justified. (Para 15 to 17) Balbir Singh & Another Vs. Qutubdeen & Another: 2023 STPL(Web) 211 HP

HP Land Revenue Act, 1954 – Revenue Records – Rebuttal of presumption of truth – That presumption of truth attached to the revenue record will be rebutted if the entry was made fraudulently or surreptitiously or without following the proper procedure. It will not be proper to rely on the oral evidence to rebut the statutory presumption as the credibility of oral evidence vis-à-vis documentary evidence is at a much weaker level.”

Held: There is no infirmity in the findings recorded by the learned Trial Court that the revenue entries could not be relied upon because of the unauthorized change in the revenue record. (Para 18, 19) Balbir Singh & Another Vs. Qutubdeen & Another: 2023 STPL(Web) 211 HP

Estoppel – Applicability of Principal – Plea that the defendant raised construction openly and peacefully to the knowledge of the plaintiffs. Therefore, the plaintiffs are estopped to file the present suit by their acts and conduct. Plea rejected – Held: There is no proof of any representation made by the plaintiffs to the defendants which is necessary to constitute estoppel.  (Para 20, 21) Balbir Singh & Another Vs. Qutubdeen & Another: 2023 STPL(Web) 211 HP

Principle of acquiescence – Applicability of – Suit against construction by defendant – Plea of acquiescence by defendant – Held:  No evidence was led regarding any express or implied representation made by the plaintiffs; hence, the principle of acquiescence does not apply to the present case. (Para 24) Balbir Singh & Another Vs. Qutubdeen & Another: 2023 STPL(Web) 211 HP

Pecuniary Jurisdiction – Constructed House – Plea regarding pecuniary jurisdiction of trial court as Suit property, which is a constructed house is more valued than Pecuniary jurisdiction of trial court – Held: The plaintiff did not seek the possession of the house but of the vacant land and they were required to value the suit based on the land revenue, which they had. Therefore, it cannot be said that the suit land was beyond the pecuniary jurisdiction of the learned Trial Court.(Para 35) Balbir Singh & Another Vs. Qutubdeen & Another: 2023 STPL(Web) 211 HP 

Relationship of Husband and wife – Proof of – Claim on property on strength of being wife of deceased – Petitioner held not wife of deceased – Held:  It is an admitted version that deceased was a public servant. He could have declared the relationship in medical reimbursement, GPF nomination, or the service record; however, no such record was produced to corroborate the version of the plaintiff – Relationship of Husband and wife not proved (Para 32, 34) Naresh Kumar Vs. Amra Devi And Others: 2023 STPL(Web) 212 HP

Indian Evidence Act, 1872 – Section 114 – Evidence – Adverse inference – Paternity and Date of Birth – Petitioner not appear as witness – She has not given any reason for non-appearance in the Court. Learned Trial Court held that an adverse inference has to be drawn against her because she was the best witness to prove that she was born on 12.4.1955 and that She is the daughter of Balak Ram. Learned Trial Court erred in drawing an adverse inference. The paternity and date of birth are not within the knowledge of a person. This information is supplied to him by his relatives and is hearsay; hence, a person cannot said to be the best witness regarding the paternity or his date of birth. (Para 35 to 43)  Naresh Kumar Vs. Amra Devi And Others: 2023 STPL(Web) 212 HP

Possession – Possession granted without demand in declaration Suit – First Appellate Court had not granted the mere declaration but had gone further and granted the relief of possession. This was not permissible – The learned First Appellate Court erred in granting the relief of possession without the same being specifically asked.(Para 49, 50) Naresh Kumar Vs. Amra Devi And Others: 2023 STPL(Web) 212 HP

Hindu Marriage Act, 1955 – Section 13 – Divorce – Desertion and Cruelty – Condonation – Appeal by husband for non-grant of divorce – Filing a petition for restitution of conjugal rights if amount to Condonation – Held: The conduct, in this case, of the husband in having moved the petition thereafter under Section 9 of the Act would amount to his intention to forgive the offending spouse in having made the statement before the Panchayat which alone was the ground made out which according to the husband was cruelty on the part of, the wife. Admittedly, the allegation was made once and was not repeated thereafter. Due to the parties having lived together even for a short duration of 7/8 days on a couple of occasions, as admitted by the husband, after the wife made the allegation amounts to the restoring of the offending spouse to the original status. By this act and conduct on the part of the husband, it can reasonably be inferred that the act stood condoned and as such husband was not entitled to the relief claimed. (Para 10, 20) Gopal Tanta Vs. Anita Tanta: 2023 STPL(Web) 213 HP

H.P. Village Common Land (Vesting and Utilization) Act, 1974 – Section 10 -– Common Land – Bar on Jurisdiction of Civil Court – Declaration Suit in Civil Court that vestment of land in government under Act of 1974 is wrong, Illegal, Null and Void – Held: The primary relief claimed by the plaintiffs with regard to declaration of their rights as owners cannot be gone into in view of the jurisdictional bar created under section 10 of the Act for which the appropriate forum would be the Collector (Para 15) Lal Singh And Others Vs. State Of Himachal Pradesh And Another : 2023 STPL(Web) 218 HP

HP Land Revenue Act, 1954 – Revenue entries – Oral Evidence – The names of the plaintiffs are not recorded in the columns of possession in the relevant record placed on record. In the absence of an entry in the revenue record, which is also expected to contain the entry of rent and possession, the tenancy cannot be treated to be in existence only on the basis of oral evidence of the witnesses examined by the defendant. (Para 18, 20) Lal Singh And Others Vs. State Of Himachal Pradesh And Another : 2023 STPL(Web) 218 HP

Court Fee – Valuation of Suit – Plea that the existence of the orchard is not in dispute; therefore, the plaintiff should have valued the suit land on the market value of the orchard. – Plea rejected It was laid down by this Court in Niram Dass vs. Hirda Ram ILR 1975 HP 659 that the raising of the orchard is immaterial to determine the court fee and jurisdiction in a suit for possession of the vacant land. (Para 15) Banka Dei (Since Deceased) Through Her Lrs Vs. Watuli Devi: 2023 STPL(Web) 222 HP

Code of Civil Procedure, 1908 – Order 18 Rule 17 – Recalling of witness – Recall only for who is already examined – The Person who is not examined earlier cannot be called for reexamination – Summon to reexamination of person who was not earlier examine set aside. Trial Court order set aside. (Para 5) Maya Devi Vs. Pradeep Chand & Others : 2023 STPL(Web) 223 HP

Transfer of Property Act, – Section 44 – Sale of specific part of Land – If purchaser become co sharer in whole land – Where a person purchases specific area denoted by specific Khasra Nos. and to the extent of the share of the transferor can such a person still claim himself to be a co-sharer with respect of the entire land? Held: The sale of a particular land out of the joint land will not be the sale of that particular land, but the sale of share -The learned Courts below had rightly held that the sale of shares in specific khasra numbers will not mean that persons who had purchased the land cannot claim any interest in the rest of the land owned by the sellers. (Para 19, 20) Smt. Sushil Kumari & Others Vs. Smt. Kaushalya Devi & Others: 2023 STPL(Web) 228 HP

Recovery Suit – Breach of contract by defendant – Recovery Valid – Agreement to sell with defendant – Failure to partition land by defendant due to which agreement to sell not executed – Plaintiff always ready and willing to perform his part of the agreement – Breach of contract by defendant – Recovery of earnest money with interest etc valid. (Para 7, 25) Ram Singh Vs. Raman Kumar Sharma: 2023 STPL(Web) 229 HP

H.P. Land Revenue Act, 1954 – Section 171 – Jurisdiction of Civil Court – When not barred – Held: Reading of these provisions shows that the Civil Court can declare the rights of the parties and thereafter the actual partition is to be carried out by the Collector or any Gazetted Officer subordinate to him – Therefore, the plea that the jurisdiction of the Civil Court is completely barred to partition the land assessed to the land revenue is not acceptable. The Civil Court can declare the rights of the parties and this is what the learned Courts below have done in the present case. (Para 21, 22) Mamta Rani Vs. Ram Dass: 2023 STPL(Web) 230 HP

Code of Civil Procedure, 1908 – Section 100 – Second Appeal – Substantial question of Law – High Court should be satisfied the case involved a substantial question of law and not a mere question of law.(Para 29): Mamta Rani Vs. Ram Dass: 2023 STPL(Web) 230 HP

Criminal

Indian Penal Code, 1860 – Section 376, 354A, 506 – Rape – Acquittal valid – Contradictions – Medical evidence do not support prosecution – Held: It is clearly evident from what has been observed above that the statement of the complainant is not trustworthy as it is full of contradictions, improvements and embellishments which makes it extremely difficult to rely upon her testimony. No plausible explanation has been given by the complainant for not reporting the matter promptly with the police and little explanation, that has been offered by her for keeping mum was only because her husband was very strict or that she was afraid of society, is not at all probable because the complainant in her cross examination clearly admitted that she had earlier lodged an FIR against Ashok Kumar accusing him of harassing her. (Para 15, 18, 20, 21) Sanjida Vs. Kabirudeen And Another: 2023 STPL(Web) 170 HP

Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 15, 29 – NDPS – Conviction set aside – Major inconsistencies, omissions, contradictions, touching upon the very substratum of the case –

(i) FIR Doubt full (ii) Presence of gazetted officer doubt full (iii) Seal affixed on searched material not proved (iv) Change in shape of material what is seized and What is sent to forensic laboratory (v) Contradictions and Improvements in evidence of witness (vi) Two of the witnesses proved as Stock witnesses, who appeared in many cases (vii) Identity of one of the main witness not established. Held: It is rather unfortunate that the learned Special Judge has ignored all the aforesaid aspects and proceeded to convict the appellants, little realising harsher is the punishment, the stricter is the proof. Conviction set aside. (Para 21, 23, 26, 27, 31, 32, 35, 37,42) Paramjit Singh & Pamma Vs. State Of Himachal Pradesh: 2023 STPL(Web) 172 HP

Protection of Children from Sexual Offences, Act, 2012 – Section 6 – POCSO – Highly improbable Case – Unnatural offence – No injury on private parts of victim and accused – Victim was about 10 years old while accused was 37 years old well-built man – Held: As Per text of Modi’s Jurisprudence, the injury on the non-consensual victim of tender age is bound to be present, if he is medically examined shortly after the offence. Conviction set aside. (Para 25, 26, 27) Tsewang Vs. State Of Himachal Pradesh :2023 STPL(Web) 184 HP

Protection of Children from Sexual Offences, Act, 2012 – Section 6 – POCSO – False Story – Unnatural offence – Payment of Rs 15 each to two boys to remain silent – During investigation, Rs. 30/- (three currency notes of Rs.10/-each) were produced before the police – Held: If Rs. 15/- each were given to both the victim and his friend, then they ought to be in possession of the currency notes or coins of the denomination of Rs. 5/- be it in the shape of Rs.5/-, Rs.1/- and Rs. 2/-, as the case may be, to account for the Rs. 5/-. This clearly casts not only suspicion but a serious doubt in the prosecution story. Conviction set aside.(Para 32, 33, 34) Tsewang Vs. State Of Himachal Pradesh :2023 STPL(Web) 184 HP

Protection of Children from Sexual Offences, Act, 2012 – Section 6 – POCSO – Failure to identify accused – Unnatural offence – Accused and Victim family know each other – Victim found to be intelligent – Failure to identify accused by victim in court – Held: we find it extremely difficult to believe that the victim would have failed to identify the perpetrator given the fact that the child victim is fairly intelligent as is evident from his cross-examination. Conviction set aside. (Para 36) Tsewang Vs. State Of Himachal Pradesh :2023 STPL(Web) 184 HP

Protection of Children from Sexual Offences, Act, 2012 – Section 6 – POCSO – Non-Examination of Material Witness – Adverse inference – Non examination of Eye witness of unnatural offence – Held: It appears that the said witness had been deliberately and intentionally withheld by the prosecution without there being any explanation, which constrains this Court to draw an adverse inference and come to the conclusion that had this witness been examined, he would have not supported the case of the prosecution. Conviction set aside. (Para 38) Tsewang Vs. State Of Himachal Pradesh :2023 STPL(Web) 184 HP

Protection of Children from Sexual Offences, Act, 2012 – Section 6 – POCSO – Age of Victim – . In order to prove the age of child victim, the birth certificate, school certificate etc., as envisaged under both Juvenile Protection Act as well the Protection of Children against Sexual Protection Act, were required to be produced. Only admission certificate is produced – which does not fulfill the requirement of the Act – Held: The Court has no hesitation in concluding that the prosecution has miserably failed to prove that the victim was child at the relevant time. Conviction set aside. (Para 40, 41) Tsewang Vs. State Of Himachal Pradesh :2023 STPL(Web) 184 HP

Indian Penal Code, 1860 – Section 302 – Murder – Chain Complete – Conviction on ground that chain of Circumstantial Evidence is Complete – Appeal against – Held: Appellant when confronted with the conclusion arrived at by the learned Court below had nothing much to argue – Except lack of motive and that accused is insane – When the prosecution adduces direct, cogent and unimpeachable evidence like in this case – Motive become insignificance – The burden of proof under Section 105 of the Evidence Act, 1872 does lie on the accused to prove to the satisfaction of the court that one is insane while doing the act prohibited by law – No discharge of this burden – Conviction upheld. (Para 21, 22, 29) Shupa Ram Vs. State Of Himachal Pradesh: 2023 STPL(Web) 190 HP

Motive – Murder – In absence of motive or the failure of the prosecution to establish a firm motive need not necessarily lead to the acquittal of an accused, more especially, when the prosecution adduces direct, cogent and unimpeachable evidence like in the instant case to establish the commission of the offence. The motive for the offence, the absence thereof or its insignificance recedes into the background. (Para 22) Shupa Ram Vs. State Of Himachal Pradesh: 2023 STPL(Web) 190 HP

Indian Penal Code, 1860 – Section 84 – Indian Evidence Act, 1972 – Section 105 – Insane – Burden of Proof – – The burden of proof under Section 105 of the Evidence Act, 1872 does lie on the accused to prove to the satisfaction of the court that one is insane while doing the act prohibited by law (Para 29) Shupa Ram Vs. State Of Himachal Pradesh: 2023 STPL(Web) 190 HP

Code of Criminal Procedure, 1973 – Section 409, 482 – Quashing of order – Administrative function – Transfer of case u/s 409 Cr PC is Administrative function – No challenge under section 482 – Held:  The order passed, cannot be interfered with by this Court, that too, under Section 482 Cr.PC, unless or until the challenge is to be made against the order, being soiled with arbitrariness, unreasonableness or on account of colourable exercise of powers. ((Para 35)

Under Section 408 Cr.PC, the learned Sessions Judge, may transfer a case from one criminal Court to another criminal Court, within the same Sessions Division, whereas, according to the provisions of Section 409 Cr.PC, Sessions Judge, may withdraw any case or appeal, which he has made over to any Additional Sessions Judge, Assistant Sessions Judge or Chief Judicial Magistrate. He may either try it in his own Court or hear the appeal himself, or make it over to another Court for trial or hearing. (Para 25)

Considering the scheme of Cr.PC, this Court has no hesitation to hold that the powers exercised by the learned Sessions Judge, under Section 409(2) Cr.PC, are administrative in nature and the order passed, cannot be interfered with by this Court, that too, under Section 482 Cr.PC, unless or until the challenge is to be made against the order, being soiled with arbitrariness, unreasonableness or on account of colourable exercise of powers. (Para 35) Beverley Singh Vs. Tejinder Singh : 2023 STPL(Web) 191 HP

Indian Penal Code, 1860 – Section 498A, 34 – Cruelty – Conviction set aside – Acquittal in Abetment for Suicide by Trial Court – Appeal against conviction for offence of cruelty – Held: There is practically no evidence, whatsoever, led by the prosecution regarding any torture or maltreatment being meted out to the deceased to fulfil an illegal demand of dowry. The allegations levelled by PW-1, PW-3, PW-8 and PW-9 are general in nature and the evidence led by the prosecution does not inspire any confidence of the Court to hold that the accused persons are guilty for commission of the offence under Section 498-A read with Section 34 IPC. Thus, we have no hesitation to conclude that the findings as recorded by the learned Court below connecting the accused persons with the commission of an offence under Section 498-A read with Section 34 IPC are perverse and, therefore, findings to this extent are set aside.(Para 47, 52) Devinder Singh And Another Vs. State Of Himachal Pradesh: 2023 STPL(Web) 199 HP

Indian Penal Code, 1860 – Section 306 – Abetment for Suicide – Acquittal Valid – Appeal against acquittal – Appreciation of evidence – Held: Prosecution has failed to prove by leading clear, cogent and convincing evidence that the deceased was meted out with harassment by the accused persons just before her death or close proximate of her death, therefore, it can conveniently be held that the prosecution has miserably failed to prove the allegations of Section 306 IPC and, therefore, the accused persons have been rightly acquitted by the learned Court below. (Para 68) Devinder Singh And Another Vs. State Of Himachal Pradesh: 2023 STPL(Web) 199 HP

Protection of Children From of Sexual Offences, 2012 – Section 4 – POCSO – Conviction set aside – Contradictions – Missing links – Serious doubt on Prosecution story – Prosecutrix Evidence does not inspire confidence – Medical evidence do not support evidence – No credence to DNA test as procedure for collecting DNA samples has not been scrupulously followed – Call details are not admissible being hit by Section 65B of Indian Evidence Act – Held: The prosecution has failed to bring home guilt of the appellants as there are yawning gaps in the chain of circumstances rendering it far from being established- pointing to the guilt of the appellants. Conviction set aside. (Para 51 to 104) Raman Kumar Vs. State Of Himachal Pradesh: 2023 STPL(Web) 224 HP

Narcotic Drugs and Psychotropic Substance Act, 1985 – Section 20, 52A – NDPS – Conviction Set aside – Noncompliance of Section 52A – Change in shape of seized contraband – Variation in NCB Form – Link Evidence Missing – Vital omissions and Contradictions – All spot witness untrustworthy –Held: Prosecution has miserably failed to establish that adequate precaution had been taken by the Investigating Agency to eliminate the possibility of tampering with the sample and offered no explanation regarding the non-compliance of Section 52-A of the ND & PS Act. In fact, safeguards have been designed keeping in view the harsh punishment. It is settled law that “harsher the punishment, stricter the onus on the prosecution to prove its case.” The testimonies of all the three spot witnesses suffer from material discrepancies and contradictions; therefore, no reliance whatsoever can be placed on the testimonies. Conviction set aside. (Para 19, 20, 28, 29) Sohan Singh & Anr. Vs. State Of Himachal Pradesh : 2023 STPL(Web) 225 HP

Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 20, 29 42, 50,52A, 65 – NDPS – Conviction set aside – Noncompliance of Section 42 (Prior information not sent to Superior officer), Non Compliance of Section 50 regarding search and seizure – Non Compliance of Section 52A (Seized material not produced before magistrate for verification and inventory) – Missing links of seized contraband and FSL Report – Variation in the weight of contraband – Fundament facts not established – Conviction set aside. (Para 8, 9, 11, 12) Mortaza Hassan Ali Sheikh Vs. Narcotics Control Bureau: 2023 STPL(Web) 226 HP

Narcotic Drugs and Psychotropic Substances Act, 1985 – Section 54 – NDPS – Reverse burden of proof on accused – Until fundamental facts of case not proved – No burden of Proof shifted on the accused to prove their innocence. (Para 14) Mortaza Hassan Ali Sheikh Vs. Narcotics Control Bureau: 2023 STPL(Web) 226 HP

Eviction

Code of Civil Procedure, 1908 – Rule 20, Order 5 – H.P. Urban Rent Control Act, 1987 – Eviction – Substituted Service – The process server had repeatedly reported that the respondent/tenant had been residing in Roorki, there was no occasion for directing the service to be effected through publication in newspaper having circulation in Shimla. Substituted service held not valid. (Para 11, 12) Sudarshan Banga Vs. Mumtaz Abbas Naqvi: 2023 STPL(Web) 178 HP

H.P. Urban Rent Control Act, 1987 – Section 24 (3) – Eviction – Appellate Authority – Remand – Plea that as per the mandate of Section 24 (3) of the Act, learned Appellate Authority had jurisdiction to hold further inquiry either himself or through the Controller, the wholesome remand is not permissible. Plea rejected – Held: In the instant case, entire proceedings were held ex-parte against the tenant and he did not have opportunity to show cause against the application filed by the landlord. To say that in such like cases also the Appellate Authority should hold further inquiry after setting aside ex-parte order will mean that the trial will have to be conducted by such authority and such exercise will take away the right of appeal of either of the parties. There is no provision of appeal under Act against the order passed by the Appellate Authority. (Para 5, 8) Sudarshan Banga Vs. Mumtaz Abbas Naqvi: 2023 STPL(Web) 178 HP

Code of Civil Procedure, 1908 – Order 11, Rule 14 – Production of Document – Rejection of Application – Intent to delay proceedings – No ingredients as to interfere with the order – Held: In exercise of its powers conferred under Section 115 of the Civil Procedure Code, the High Court interferes with the orders in case the learned Court below has either exercised jurisdiction not vested in it, or has failed to exercise jurisdiction vested in it or has exercised the jurisdiction vested in it with material irregularity.

In the present case, none of the these three ingredients are met so as to interfere with the order so passed by the learned Rent Controller. It is not the case of the petitioner that learned Rent Controller has exercised jurisdiction not vested in it because it is the application of the petitioner which stood adjudicated upon by the learned Rent Controller. Similarly, it cannot be the ground of the petitioner that the learned Rent Controller did not exercise jurisdiction vested in it because the application filed by the petitioner stood adjudicated upon by the learned Rent Controller. As far as the exercise of jurisdiction vested in it with material irregularity is concerned, here is a case where the respondent has filed an eviction petition against the petitioner in the year 2013 and till date the same is hanging fire. Filling applications only to delay proceedings – Petition dismissed. (Para 3, 4) Shri Pardeep Kumar Vs. Smt. Deepa Singha And Another: 2023 STPL(Web) 204 HP

Family

Hindu Marriage Act, 1955 – Section 13(i)((ia) – Divorce – False case of second marriage – Cruelty – Appeal by wife against grant of divorce – Held: Filing a false complaint by one spouse against another which results in the acquittal constitutes cruelty. In the present case also, the wife filed a complaint against the husband for the commission of offences punishable under Sections 494 and 506 of IPC asserting that the husband had solemnized a second marriage, which resulted in an acquittal of the husband. Therefore, the learned Trial Court rightly held that the cruelty was established on record. Divorce rightly granted. (Para 18) Simro Devi Vs. Onkar Singh : 2023 STPL(Web) 181 HP

Hindu Marriage Act, 1955 – Section 25 – Hindu Marriage – Maintenance & Permanent Alimony – The husband was posted as an ASI in the Police Department. Thus, he is a salaried person. The appellant-wife has not filed any proof of his income; therefore, the income has to be assessed based on guesswork. The fact that the wife is claiming that she has borne the expenses of marriage of daughter shows that she had income; otherwise, she would have been unable to bear the expenses of the marriage.

Keeping in view that fact that she is residing in the matrimonial home and cultivating the land, the permanent alimony of Rs. 5,000/- is awarded to her, which shall include the amount of Rs. 1,000/- already awarded to the wife under Section 125 of Cr.P.C. (Para 21 to 26) Simro Devi Vs. Onkar Singh : 2023 STPL(Web) 181 HP

Hindu Marriage Act, 1955 – Section 13 – Divorce – Desertion and Cruelty – Condonation – Appeal by husband for non-grant of divorce – Filing a petition for restitution of conjugal rights if amount to Condonation – Held: The conduct, in this case, of the husband in having moved the petition thereafter under Section 9 of the Act would amount to his intention to forgive the offending spouse in having made the statement before the Panchayat which alone was the ground made out which according to the husband was cruelty on the part of, the wife. Admittedly, the allegation was made once and was not repeated thereafter. Due to the parties having lived together even for a short duration of 7/8 days on a couple of occasions, as admitted by the husband, after the wife made the allegation amounts to the restoring of the offending spouse to the original status. By this act and conduct on the part of the husband, it can reasonably be inferred that the act stood condoned and as such husband was not entitled to the relief claimed. (Para 10, 20) Gopal Tanta Vs. Anita Tanta: 2023 STPL(Web) 213 HP

Labour Law

Jurisdiction of Labour Law – Regularization – Industrial Tribunal – cum Labour Court has no jurisdiction to order regularization and any relief upto regularization – To that extent award of labour Court set aside (Para 6, 25) Director, Doordarshan Kendra And Another Vs. Jai Chand And Others: 2023 STPL(Web) 221 HP

Industrial Dispute – Doordrashan is industry – Plea that the Doordarshan Kendra, was not an industrial establishment – Held: Undeniably, the Doordarshan Kendra is engaged in distribution of services with a view to satisfy human wants or wishes. The nature of job performed by Doordarshan Kendra also does not fall within any of the accepted clauses under Section 2(j) of the Act. Further, it cannot be said that the services provided by the Doordarshan Kenda Shimla are going to be short lived. The denial on part of management in respect of requirement of permanent staff is nothing but specious. Findings recorded by learned Tribunal to the effect that the claimants were the workmen and Doordarshan Kendra was an industry cannot be faulted with (Para 5, 19, 20) Director, Doordarshan Kendra And Another Vs. Jai Chand And Others : 2023 STPL(Web) 221 HP

Workmen Compensation Act, 1923 – Workman Compensation – Claim fails – Appeal against dismissal of Claim – No employee employer relation proved – At the time of accident factory was closed – No police report or medical evidence – No proof of any insurance policy – Claim rightly dismissed. (Para 15 to 19) Ravi Pal Vs. Des Raj (Since Deceased) Through His Lrs.: 2023 STPL(Web) 227 HP

Land Acquisition

Land Acquisition Act, 1894 – Section 4 – Land Acquisition – Compensation enhanced – Same type of land for same project acquired at nearby village and paid higher compensation than petitioners – Award enhanced from Rs.700/- per square meter to Rs.1000/- per square meter, along with all statutory benefits (Para 23, 28, 37) General Manager Northern Railway Vs. Des Raj & Others: 2023 STPL(Web) 195 HP

Code of Civil Procedure, 1908 – Order 41 Rule 33 – Civil Procedure – Power of Appellate Court – Land Acquisition – Merely, the fact that the petitioners have not preferred the appeals against the award, does not preclude this Court to grant the relief to them, as the purpose of the Court, should be to grant ‘just compensation’ to the person(s), whose land has been acquired (Para 32, 36) General Manager Northern Railway Vs. Des Raj & Others: 2023 STPL(Web) 195 HP

Service Law

Service Law – Promotion – Delay and Laches – Pending litigation – Promotions in 2006 and first objection in 2014and second in 2021 – Petition cannot be accepted on ground of delay and laches – Held: Even if, litigation with respect to seniority of Assistant Engineers (Civil) was pending, it would not have been an impediment for the petitioners to have espoused their own cause. No merit in petition – Dismissed. (Para 14, 22) Manish Kumar And Another Vs. State of Himachal Pradesh: 2023 STPL(Web) 175 HP

Service Law – Pay Scale – Demand of Retrospective revision of Pay Scale – There is nothing on record which may suggest that the revision of pay scale in the case of Law Officer in the board was made retrospectively. It is well settled that for attaching retrospectivity to any administrative action, there has to be a specific reference to that effect, failing which such action is presumed to be prospective. No relief can be granted(Para 11, 13) Jitender Gupta Vs. State Of H.P. & Anr. : 2023 STPL(Web) 180 HP

Service Law – Regularization – Technical Resignations – Whether the petitioners are estopped from claiming the benefit of regularization on account of their voluntary acts of omission, commission and acquiescence? – No prior permission for such resignations from there earlier department – Joining of new department – Held: The petitioners had voluntarily chosen the option to resign from the contract service which they had earned as PTA-GIA teachers and thereafter to join the contract employment under the State Government on batch-wise basis. Evidently, in their wisdom the petitioners had accepted better avenues by accepting batch-wise appointment as the prospects of being regularized as PTA-GIA contract teachers were still wagering. Once having availed the opportunity and option to join on batch-wise basis, the petitioners had voluntarily waived their rights in the past service. No relief. (Para 13, 17) Satya Nand & Others Vs. State Of H.P. & Another : 2023 STPL(Web) 192 HP

Service Law- Pension – Higher Salary – Plea by petitioners that on their retirement, they became entitled to pension on the basis of contribution made on higher salary – Held: In view of the fact that the contribution towards EPF had been made on higher salary, there should not be any impediment in grant of pension on higher salary to the petitioner. The respondents are directed to grant pension to the petitioners at higher salary with effect from the dates of their respective retirements.(Para 20, 21) Ranjiv Paul & Ors. Vs. Union Of India & Ors. : 2023 STPL(Web) 193 HP

Service Law – Delay in Claim – Conduct that voluntarily accepted – Regularization – Claim for early regularization – Claim after thirteen years – Held: Having accepted, the discharge of duties as driver for such a long period also on one hand proves the voluntariness on the part of the petitioner and on the other hand, operates as estoppel against him. The representation submitted by the petitioner to the corporation on 13.12.2021, will not further his cause as before that he had already sought the legal remedy. In this view of the matter, the claim of the petitioner is highly belated and suffers from vice of delay and laches. (Para 22) Rakesh Atwal Vs. State Of H.P. & Ors.: 2023 STPL(Web) 194 HP

Service Law – Reduction in rank – Two show cause notices – Held: Issuance of two Show Cause Notices, proposing two different penalties was impermissible in law – Penalty set aside – Remand back to Appellate Authority with the direction that let a fresh order be passed on the appeal that was preferred by the petitioner against the order of Disciplinary Authority and the issue raised therein with regard to legality of issuance of two Show Cause Notices shall be specifically dealt with by the Appellate Authority, of course by adhering to the principles of natural justice.(Para 11, 13) Avtar Singh Vs. State Of Himachal Pradesh & Others :2023 STPL(Web) 203 HP

Service Law – Appointment – Having Higher Qualification – Non-recommendation of  name for appointment against the post of Junior Engineer as he has degree in requisite subject but as per rules only diploma required.  Degree is higher qualification than diploma – Held: There appears to be merit in the contention of learned counsel for the respondents that the decision of the respondent Commission to exclude Degree holders from the post of Junior Engineer (Civil) was a conscious decision taken after due deliberations. In the case at hand, petitioner instead of laying challenge to the Recruitment and Promotion Rules, participated in the selection process but after having failed in the same, as detailed above, laid challenge to the same by way of present writ petition, which is not permissible in law.  No illegality or infirmity in the action of the Commission. Petition dismissed(Para 20, 24) Kartik Katwal Vs. Himachal Pradesh Urban Development Authority And Others: 2023 STPL(Web) 207 HP

Service Law – Payment of Salary – To continue service till the end of Academic Session – Held: The said extendable period of service is akin to extended period provided to the Government employee till end of the month, in which such employee attains the age of superannuation. – Petitioner is entitled for Grant-in- Aid of salary out of Grant-in-Aid fund/budget to be provided by respondent/State by releasing 95 % Grant-in-Aid for payment thereof for the period (Para 5, 11) Kuldeep Singh Rana Vs. State Of H.P. & Ors. : 2023 STPL(Web) 208 HP

Service Law – Non Revision of Pay Scale – Grievance the State Government revised the pay scales of all other categories of its employees except the category of Laboratory Attendant in the Department of Higher Education – Held: These petitions are accordingly disposed of with directions to the respondents to reconsider the case of the petitioners for suitable revision in their pay scale, keeping in view the rise in price index, if such factor was applied as one of the parameters while granting revision of pay scales to other categories under 2012 Rules.(Para 23)

Notwithstanding all other aspect, it cannot remain unnoticed that one of the important factors for revising pay scale is the rise in price index. The assumption to that effect will not be unfounded and unreasonable. That being so, it is not understandable, as to how, an exception has been carved in the case of Laboratory Attendants. (Para 21)

This Court is not at all suggesting the revision of pay scale in the case of petitioners at a particular rate, however, the observations are being made on the premise that in case the necessary exercise had not been undertaken, the vulnerability of administrative action to judicial review cannot be avoided. (Para 22) Bhagat Ram And Others Vs. State Of Himachal Pradesh And Others: 2023 STPL(Web) 214 HP

Service Law – Regularization – Classification – Plea that services of many similarly situated persons is regularized but in the case of petitioners such right has been denied – Held: The creation of different classes between the “bill based” and “in kind” employees by the Board is held to be arbitrary, unreasonable, irrational hence discriminatory.

The petitioners have been working as ‘Assistant Environmental Engineer’ and ‘Helpers’ respectively for the last 8 to 10 years. Their services have been utilized for the discharge of routine functions of the Board. Apparently, they are under the disciplinary control of the Board. Their wages are being debited to the account against EMPs. In such circumstances, the mode of payment of salary cannot be a decisive factor more particularly when the base source is one i.e. project proponents.

Board is directed to absorb the services of petitioners in the Board initially on contract basis and thereafter by way of regularization exactly in the same manner as has been done in the case of “bill based” employees.(Para 17, 18, 19) Rajeev Sharma Vs. Himachal Pradesh State Pollution Control Board: 2023 STPL(Web) 215 HP

Service Law – Termination – on the ground that their appointment was on co-terminus basis – Violation of the principles of natural justice – Held: The genuineness of legitimate expectations of the petitioners regarding prospects of continuity of their services could not have been ignored. In this view of the matter, the petitioners definitely were entitled to have been afforded an opportunity of being heard before termination of their services. The impugned orders are bad in law for this reason.

The orders have been passed by the Secretary of the office of Lokayukta, whereas the appointment letters in case of the petitioners were issued by the Hon’ble Lokayukta himself. The authority of the Secretary in this behalf is also questionable.

Termination quashed and set aside with a direction to the respondents to re-consider the cases of the petitioners keeping in view the observations made hereinabove and to pass the orders afresh after affording due opportunity of being heard to the petitioners. (Para 12, 15, 16) Ramesh Chand Vs. State Of H.P. & Another : 2023 STPL(Web) 216 HP

Service Law – Disciplinary Authority and Appellate authority is same – MD who is Disciplinary Authority is also Member of Board who heard appeal – If entire proceedings vitiated – Plea rejected – Held: there is nothing on record that the Managing Director of the bank was member of the Board meeting at the time of hearing of appeal of the petitioner. The Managing Director is the Chief Executive Officer of the bank and he is an ex-officio member of the Board by virtue of his designation. The decision of the Board cannot be thus said to have been vitiated merely because its conveyance was under the signature of the Managing Director. (Para 9, 23) Suresh Kaushal Vs. State Of H.P. & Others : 2023 STPL(Web) 217 HP

Service Law – Dismissal – Cooperative Bank – Plea that permission from registrar is required for imposing major penalty – Plea rejected – Learned counsel for the petitioner has not been able to show any provision of the bye-laws of the Bank wherein it has been mandated to seek prior permission of the Registrar before imposition of major penalty on the officer of Grade-IV or Grade-III under Rule 55 of the rules ibid. The argument raised on behalf of the petitioner fails as there was no mandatory requirement of seeking prior permission of the Registrar before imposition of major penalty upon the petitioner. (Plea 8, 21, 22) Suresh Kaushal Vs. State Of H.P. & Others : 2023 STPL(Web) 217 HP

Constitution of India, 1950 – Article 226 – Maintainability of Writ – Cooperative Bank – Plea that the Himachal Pradesh Cooperative Bank was not a state or other authority within the meaning of Article 12 of the Constitution of India and also that the remedy of writ was not available against the Bank. Plea rejected – Held: Even if the Bank was held to be not a State within the meaning of Article 12 of the Constitution, the High Court in exercise of powers under Article 226 of the Constitution was held jurisdiction to issue a writ or order in nature of writ even against any person or authority, if the fact situation of the case warranted. It has further been held that the writ can lie even against the co-operative authorities, however, its maintainability would depend on the facts of each case. It cannot be said that the writ against the Bank will not be maintainable in any circumstance. (Para 9, 15) Suresh Kaushal Vs. State Of H.P. & Others : 2023 STPL(Web) 217 HP

Service Law – Recovery – Mistake committed by Employer – No fault of employee – Employee is Class III/IV Employee – Matter old – Relying on Supreme Court Judgment  in State of Punjab v. Rafiq Masih, (2015) 4 SCC 334 – High Court quashed recovery. (Para 15, 16) Bhag Chand Vs. State Of Himachal Pradesh And Others :2023 STPL(Web) 219 HP

Service Law – Delay and Laches – No relief – Claim after eleven years – Held: There is no material on record to suggest that the petitioners had raised such claim either against the management or the official respondents. That being so, the inaction of petitioners for such a long time turns out to be an impediment in grant of any relief in their favour. (Para 18) Avinash Chander & Others Vs. State Of Himachal Pradesh & Others: 2023 STPL(Web) 220 HP

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