Approbate - Reprobate Blowing Hot and Cold

Suzuki Parasrampuria Suitings (P) Ltd. v. Official Liquidator, (2018) 10 SCC 707 : 2018 SCC OnLine SC 1798 at page 712

12. A litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting stands. The untenability of an inconsistent stand in the same case was considered in Amar Singh v. Union of India [Amar Singh v. Union of India, (2011) 7 SCC 69 : (2011) 3 SCC (Civ) 560] , observing as follows: (SCC p. 86, para 50)

“50. This Court wants to make it clear that an action at law is not a game of chess. A litigant who comes to court and invokes its writ jurisdiction must come with clean hands. He cannot prevaricate and take inconsistent positions.”

Suppression in List of Dates

Union of India v. Shantiranjan Sarkar, (2009) 3 SCC 90 : (2009) 1 SCC (L&S) 575 at page 92

8. Before adverting to the contentions raised before us by the learned counsel for the parties, we may notice that the appellants suppressed a material fact. It appears that the fact that the High Court had recalled its earlier order dated 9-7-2004 by an order dated 30-11-2004 had not been mentioned in the list of dates. This Court, therefore, must have proceeded on the basis that the impugned order was passed on a review application and not in the original writ proceedings. We do not find appropriate words to deprecate such a practice and that too by the Union of India. We should have dismissed the special leave petition on this ground alone. Let us, however, also consider the merit of the matter.

Maintainability is a legal plea jurisdictional plea can be raised anytime

State of Rajasthan v. Rao Raja Kalyan Singh, (1972) 4 SCC 165 at page 167

6. Though this issue is not very specific but undoubtedly it covers the plea taken by the respondent in para 1 of his written statement. That apart the plea of maintainability of the suit is essentially a legal plea. If the suit on the face of it is not maintainable, the fact that no specific pleas were taken or no precise issues were framed are of little consequence.

When High Court has condoned delay, not proper for Supreme Court at SLP stage to dismiss on that ground

Dayal Singh v. Union of India, (2003) 2 SCC 593

Dismissal of WP challenging Fundamental Right on the ground of delay

Assam Sanmilita Mahasangha v. Union of India, (2015) 3 SCC 1at page 23

29. In Bangalore City Coop. Housing Society Ltd. v. State of Karnataka [(2012) 3 SCC 727 : (2012) 2 SCC (Civ) 391] , a two Judge Bench of this Court understood the ratio of Tilokchand Motichand [Tilokchand Motichand v. H.B. Munshi, (1969) 1 SCC 110] as follows: (Bangalore City Coop. Housing Society Ltd. case [(2012) 3 SCC 727 : (2012) 2 SCC (Civ) 391] , SCC p. 755, paras 46-48)

“46. In Tilokchand Motichand v. H.B. Munshi [Tilokchand Motichand v. H.B. Munshi, (1969) 1 SCC 110] the Constitution Bench considered the question whether the writ petition filed under Article 32 of the Constitution for refund of the amount forfeited by the Sales Tax Officer under Section 21(4) of the Bombay Sales Tax Act, 1953, which, according to the petitioner, was ultra vires the powers of the State Legislature should be entertained ignoring the delay of almost nine years. Sikri and Hedge, JJ. were of the view that even though the petitioner had approached the Court with considerable delay, the writ petition filed by it should be allowed because Section 12-A(4) of the Bombay Sales Tax Act, 1946 was declared unconstitutional by the Division Bench of the High Court (sic Constitution Bench of the Supreme Court) [Ed.: Section 12-A(4) of the Bombay Sales Tax Act, 1946 (corresponding to Section 21(4) of the Bombay Sales Tax Act, 1953) was struck down by the Constitution Bench of the Supreme Court in Kantilal Babulal & Bros. v. H.C. Patel, AIR 1968 SC 445 : (1968) 1 SCR 735 : (1968) 21 STC 174 for being violative of Article 19(1)(f) of the Constitution.] . Bachawat and Mitter, JJ. opined that the writ petition should be dismissed on the ground of delay.

***

47. Hidayatullah, C.J. who agreed with Bachawat and Mitter, JJ. inTilokchand case [Tilokchand Motichand v. H.B. Munshi, (1969) 1 SCC 110] noted that no period of limitation has been prescribed for filing a petition under Article 32 of the Constitution and proceeded to observe: (SCC p. 116, para 11)

‘11. Therefore, the question is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit. A case may be brought within the Limitation Act by reason of some article but this Court need not necessarily give the total time to the litigant to move this Court under Article 32. Similarly in a suitable case this Court may entertain such a petition even after a lapse of time. It will all depend on what the breach of the fundamental right and the remedy claimed are when and how the delay arose.’

48. The ratio of the aforesaid decision is that even though there is no period of limitation for filing petitions under Articles 32 and 226 of the Constitution, the petitioner should approach the Court without loss of time and if there is delay, then cogent explanation should be offered for the same. However, no hard-and-fast rule can be laid down or a straitjacket formula can be adopted for deciding whether or not this Court or the High Court should entertain a belated petition filed under Article 32 or Article 226 of the Constitution and each case must be decided on its own facts.”

WP challenging constitutional validity not to be dismissed for delay

Writ Petition under Art 226  challenging constitutional validity of the statute providing for compensation for property acquired by the State not to be dismissed on the ground of delay when infringement of fundamental rights is involved. Kamalabai Harjivandas Parekh v. T. B. Desai, AIR 1966 Bom 36 (S.P. Kotval, J)

 

 

Subsequent addendum to justification/reasons of order - not permitted

Commissioner of Police v. Gordhan Das Bhanji, AIR 1952 SC 16, the Supreme Court has held as under :

"We are clear that the pubic orders publicly made in exercise of statutory authority cannot be construed in the light of explanation subsequently given by the officer making the order of what he meant or of what was in his mind or what he intended to do. Public orders made by the public authorities agreement to have public effect and are intended to effect the acting's and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order Itself.

when law requires something to be done in a particular way it must be done in that way or not at all

Nazir Ahmad v. King Emperor, AIR 1936 PC 253. Crates on Statute .Law, 6th Edition P. 263 states the same principle In the following language :

"If the requirements of a statute which prescribe the manner in which something Is to be done are expressed in negative language, that is to say, If the statute enacts that it shall be done in such a manner or in no other manner. It has been laid down that those requirements are in all cases absolute, and that neglect to attend to them will Invalidate the whole proceedings."

In A. K. Roy v. State of Punjab, AIR 1986 SC 2160, the Supreme Court was called upon to construe the provisions of Section 20(1) of the Prevention of Food Adulteration Act, 1954, which Inhibited institution of any prosecution for an offence under the Act not being an offence under" Section 14 or Section 14A, "except by or with the written consent of the Central Government or the State Government or the person authorised in this behalf by general or special order by the Central Government or the State Government" The Supreme Court held as under :

"Where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other modes of performance are necessarily forbidden. The Intention of the Legislature in enacting Section 20(1) was to confer a power on the authorities specified therein which power had public exercise in the manner provided and not otherwise."

Consequences of not filing counter affidavit

2007 (25) LCD 955
AIR 1993 SC 2592
1997 (11) SCC 179
AIR 1985 SC 1019
1998 (3) SCC 112
1996 (6) SCC 342
AIR 1986 SC 638

Contempt

Deliberately stating falsehood on oath is contempt. 2000 2 SCC 362

Inordinate Delay in passing judgment by trial court ground for setting it aside

See AIR 2001 SC 3173
1 (2010) CPJ 611 (CG-SC)

Publicity to a debt

In England, it is an offence by statute to unduly publicise the existence of any debit with the object of concerning the debtor to pay.  This is unlawful harassment. Argyll v. Argyll, (1965) 1 All ER 611 (Thomas J.)

Same lawyer cant act for both parties

Hilton v. Barker Booth, 2005 1 All ER 651

Penalty and Forfeiture Clause

There is no absolute right to forfeit entire amount without proof of total damages. When material on record shows that extent of damages is less, no one can be allowed to enrich himself by taking advantage of the forfeiture clause. When actual loss is ascertainable , entire forfeiture cannot be held valid. AIR 2011 AP 65.

Contract and writ: arbitration

Principle:  Writ remedy may not be invoked when the case involves an essentially contractual disputes with the State, or involves questions of fact.  

State of U.P. v. Bridge & Roof (India) Limited, AIR 1996 SC 3515 "that the writ petition filed by the respondent for the issuance of a writ of Mandamus restraining the Government from deducting or withholding a particular sum, which according to the respondent is payable to it under the contract, was wholly misconceived and was not maintainable in law".  Followed by Vindhya Telelinks Limited v. MTNL, 95 (2002) DLT 865.

 The Bridge & Roof Case has been distinguished by the High Court at Guwahati in J. Deep  Chemicals and Fertilizers v. State of Tripura, 2007 (2) GLT 173.  The Guwahati High Court, while agreeing with the principle laid down in the Bridge & Roof Case, held that "the rightful claim or writ petitioner for payment of the remaining amount was not to be withheld by the State authorities. For that purpose the writ petition could have been entertained and there has been no necessity to refer the matter to the arbitrator as no such dispute for interpretation of contract or its terms or controversial facts was involved which could have been referred to the arbitrator".

Approbate Reprobate

In this respect, recently in Mumbai International Airports Limited v. Golden Chariot Airports, decided by the Supreme Court on September 22, 2010, the Court has held that a person cannot be allowed to take inconsistent stand in litigation, and once having elected to take a stand cannot be allowed to resile from such a position.

Error on the face of record

2009 14 SCC 663

2006 4 SCC 78

1997 8 SCC 715

Parallel Remedies - Stay of proceedings

Jai Singh v. Union of India, AIR 1977 SC 898

a litigant cannot pursue two parallel remedies in respect of the same matter at the same time.


See also:


Awadh Bihari Yadav  v. State of Bihar, AIR 1996 SC 122
Arunima Baruah v. Union of India, (2007) 6 SCC 120
Manish Goel v. Rohini Goel, 2010 (3) BomCR 44

Stamp Duty at Interim Stage is relevant

K.B. Jayram v. Navineethamma, AIR 2003 Kant 241 (para 4)


the court below would have been justified in first insisting upon the payment of the stamp duty and the penalty on the agreement to sell before it could issue an injunction in favour of the appellant on that basis. 




Also see 


Conwood Agencies v. Namdeo Pandurang, 2005(1)ALLMR335, (2005)107BOMLR319

[A] Civil Procedure Code, 1908 - Order 18, Rule 4 - Order 7, Rules 3, 4 -- Bombay Stamp Act, 1958 - Sections 33, 34, 37 -- Registration Act, 1908 - Sections 17, 18, 49 -- Admissibility of document in evidence - Admissibility objected to on the ground that it is insufficiently stamped - Court must at the outset determine the question of its admissibility before allowing the party to rely on such document even for collateral purpose.

Cheque bounce compounding procedure

2010 4 Bom C. R. 45 (SC)

Damodar prabhu v. Sayed babalal.