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.

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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)

 

 

Conduct of Party is also relevant for Injunction

(2008) 11 SCC 1 (by Justice Sinha)

Last seen theory

Criminal Trial — Circumstantial evidence — Last seen together — Theory of: “Last seen theory” is important link in chain of circumstances that would point towards guilt of accused with some certainty. Such theory permits court to shift burden of proof to accused and he must then offer a reasonable explanation as to cause of death of deceased. But, it is not prudent to base conviction solely on “last seen theory”. Such theory should be applied, taking into consideration case of prosecution in its entirety and keeping in mind circumstances that precede and follow the point of being so last seen. Where time gap is long, it would be unsafe to base conviction on “last seen theory”. It is safer to look for corroboration from other circumstances and evidence adduced by prosecution. [Nizam v. State of Rajasthan,(2016) 1 SCC 550]

Recall of Order - Advocate's name not shown in Cause List

Lajwanti v. Union of India, (2000) 10 SCC 345 at page 34

The name of the appellant's advocate not having been shown in the cause-list is a sufficient cause for recalling the order

Replication and stages of pleadings in a civil suit

1.    Delhi: Anant Construction v. Ram Niwas, 1994 (31) DRJ 205 : on replication. Holds that once Court allows replication, it becomes part of the pleading. We have been allowed so by 29.10.2014 order.

2.    Bombay: Mohanraj v. Kewalchand, 2007 (1) Mh LJ 691, para 8: document even if not entered in list of reliance cannot be ignored unless the otherside establishes prejudice.

3.    Delhi: Moti Ram v. Baldev Krishan , 15 (1979) DLT 90, pg 92: Replication is permitted by court forms part of the pleading.

4.    Punjab: Sharda Rani v. Malik Yashpal, (1964) 66 PLR 1126, para 7: when document is referred to and relied upon in the pleadings the contents thereof can be construed as part of pleading.

 

 

Withdrawal without Liberty

Mario Shaw v. Martin Fernandez, 1995 SCC OnLine Bom 313: (1996) 1 Mh LJ 564

 

Or 23, R. 1(4) – Withdrawal of dispute with liberty to file fresh proceedings – if application is made for withdrawal of proceedings with liberty to file fresh proceedings, it is not open for the Court to grant permission only for withdrawal without liberty to institute proceedings though it is open for the Court to reject such application.