Delhi High Court: Daughter in law can't claim right to live in In-Law House

Delhi High Court has held that the old parents whose relations with their son and daughter-in law turn sour have every right to show them the door and the daughter-in law cannot claim any right to stay in their house claiming to be having a legal right to live in the matrimonial home.

Justice Shiv Narain Dhingra observed,"that the matrimonial home may not necessarily mean the house of the parents of the husband. In fact the parents can allow the children to live in the house as long as their relations are cordial and full of love and affection with them."

Matrimonial home is not merely a dwelling unit. It is a place used by husband and wife for dwelling, Justice Dhingra said.

In the present case, an old couple staying in Ashok Vihar filed a suit in the Delhi High Court stating that their daughter-in-law forcibly wants to stay in their house whereas she has her own house in Rohini. The parents of one Vikas Mittal who stay in Ashok Vihar had separated from their son. The son purchased a flat in Rohini.The daughter-in-law stated that the house in Rohini is not habitable with no cooler, fan and claimed a right to live in her parents-in-law's house at Ashok Vihar. The daughter-in-law Neetu Mittal referred to the protection of women from domestic violence act and claimed right to live in the Ashok Vihar house stating the right to live in the Matrimonial home.

The Court observed that the parents who are ill and suffering from various ailments have every right to live peacefully. Since their relations with the son and daughter-in-law are not cordial there is every likelihood of breach of peace detrimental to their mental and physical health. The Court observed that due regard has been given to the parent's rights as it is established that they cannot live together under one roof.

The Court held that once a person gains maturity, parents have no liability to sustain him. It is a different thing that out of love and affection parents can support the son but there is no legal liability on them. The Court dismissed the daughter-in-law's claim of the right to live in the matrimonial home of the parents and held the rights of the parents above her rights.

GRANT BAIL ONLY FOR GOOD REASON: SUPREME COURT

The Supreme Court while deciding Lokesh Singh Vs. State of U.P. & Ors. on 21st oct, 2008, has said that the bail granted to the accused is liable to be set aside if the adequate reasons for granting it are not laid out by the court.

While dealing with an application for bail, bench comprising Justice Arijit Pasayat and Justice C K Thakker said:there is a need to indicate the order, reasons for prima facie concluding why bail was being granted where an accused was charged of having committed a serious It is necessary for the courts dealing with application for bail to among other circumstances, the following factors also before bail, they are:

1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
3. Prima facie satisfaction of the Court in support of the charge.

Any order de hors such reasons suffers from non-application of mind was noted by this Court, in Ram Govind Upadhyay v. Sudarshan Singh Ors. [(2002) 3 SCC 598], Puran etc. v. Rambilas and Anr. Etc. [(2001) SCC 338)] and in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu & Anr. [JT 2004 (3) SC 442].

Though a conclusive finding in regard to the points urged by the parties is not expected of the Court considering the bail application, yet reasons is different from discussing merits or demerits. As noted at the stage of granting bail a detailed examination of evidence and
documentation of the merits of the case has not to be undertaken. that does not mean that while granting bail some reasons for prima facie why bail was being granted is not required to be indicated.

The court cancelling the bail of an accused said that at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. But that does not mean that while granting bail some reasons for prima facie concluding why bail was being granted is not required to be indicated, observed court.

The apex court said that the accused released on bail shall surrender to custody forthwith.

The Lucknow bench of the Allahabad high court had granted bail to an accused facing trial for an alleged murder and Section 120 B of the Indian Penal Code.

JURISDICTION OF CIVIL COURT IN INDUSTRIAL DISPUTE NOT BARRED:SUPREME COURT

The Supreme Court has held in the case of RAJASTHAN STATE ROAD TRANSPORT
CORPORATION & ANR. vs. BAL MUKUND BAIRWA decided on 12/02/2009 that the jurisdiction of a civil court in an industrial dispute is not barred in case the dispute relates to violation of fundamental rights of a workman or the violation of general law of contract is involved.

The three-judge bench, comprising Justices S B Sinha, Mukundakam Sharma and Asok Kumar Ganguly, in their judgment noted, The purpose of principles of natural justice is prevention of miscarriage of justice and hence the observance thereof is a pragmatic requirement of fair play in action.

The jurisdiction of a civil court is governed by Section 9 of the of Civil Procedure, which reads as under:
 "9 - Courts to try all civil suits unless barred:-The Courts shall (subject to the
provisions herein contained) have jurisdiction to try all suits of a civil nature
excepting suits of which their cognizance is either expressly or impliedly barred."

The jurisdiction of the Civil Court in terms of the aforementioned is a plenary one. The provision relating to bar to entertain a must therefore be laid down by a statute either expressly or by implication. An employee charged with grave acts of must be held to be entitled to a fair hearing in the proceeding. The common law principles of natural justice also be complied with. Rules laid down in the statutory rules should be followed.

Section 9 of the Code is in enforcement of the fundamental of law laid down in the maxim Ubi jus Ibi remedium. A thus, having a grievance of a civil nature has a right to institute a suit in a competent civil court unless its cognizance is either or impliedly barred by any statute. Ex facie, in terms of section of the Code, civil courts can try all suits, unless bared by either expressly or by necessary implication.

The civil court, furthermore, being a court of plenary jurisdiction the jurisdiction to determine its jurisdiction upon considering the made in the plaint but that would not mean that the plaintiff
circumvent the provisions of law in order to invest jurisdiction on the court although it otherwise may not possess. For the said purpose, court in given cases would be entitled to decide the question of its jurisdiction upon arriving at a finding in regard to the existence of jurisdictional fact. It is also well settled that there is a presumption a civil court will have jurisdiction and the ouster of civil court's is not to be readily inferred. A person taking a plea contra establish the same. Even in a case where jurisdiction of a civil court sought to be barred under a statute, the civil court can exercise its jurisdiction in respect of some matters particularly when the statutory
or Tribunal acts without jurisdiction.

In this view of the matter, in our considered opinion, it would not be correct to contend that only because the employee concerned is also a workman within the meaning of the provisions of the 1947 Act or the conditions of the service are otherwise governed by the Standing Order certified under the 1946 Act ipso facto the civil court will have no jurisdiction.

The apex court also noted, �if the infringement of Standing Order or other provisions of the industrial disputes act are alleged, the civil courts jurisdiction may be held to be barred but if the suit is based on the violation of principles of common law or constitutional provisions or on other grounds, the civil courts jurisdiction may not be held to be barred.

The objection to the maintainability of the civil suit filed by Balmukund Birwa and others was raised by Rajasthan State Road Transport Corporation. The two judge bench of the Supreme Court vide order dated November 22, 2007 had referred the case to three-judge bench for deciding the issue whether the civil court is completely debarred for entertaining a suit involving a dispute between the employer and the workman.

The apex court also held that it is a settled law that if a court decides a mater without jurisdiction, the decision, or the decree passed by such court would be a nullity and the jurisdiction cannot be conferred on a court either by the court order or through the mutual consent of the parties.

COMPANY CAN SUE POWER SUPPLIERS UNDER CONSUMER LAW: SUPREME COURT

The Supreme Court has ruled in Karnataka Power Transmission Corpn. & Anr. vs. Ashok Iron Works Pvt. Ltd. on 09/02/2009 that companies engaged in commercial activities can drag their electricity supplier to a consumer forum and seek damages for deficiency in services.

A bench of Justice Markandey Katju and Justice RM Lodha rejected a plea of Karnataka Power Transmission Corporation in which it had said a company using electricity for commercial purpose cannot approach a consumer forum against the utility. The sale of power to a commercial consumer for a commercial purpose was outside the scope of the Consumer Protection Act, 1986, the state utility had argued.

Ashok Iron Works had in 1991 applied an electricity connection, but it approached the district consumer forum after KPTC delayed power supply. The district forum had ruled that the matter was not under the jurisdiction of the Consumer Protection Act. The private company then approached the Karnataka State Consumer Disputes Redressal Commission, which decided in its favour. This had prompted KPTC to approach the National Consumer Disputes Redressal Commission, which quashed its plea. The utility then moved the apex court.

The apex court, while dismissing KPTC�s petition, remanded the matter back to the Consumer Disputes Redressal Forum, Belgaum, to decide whether there was any deficiency in services by the power supplier. KPTC had claimed that the complaint made by the company was not covered under the consumer law since the company was not a �person� as defined under Section 2(1)(m) and hence, not a consumer as defined under Section 2(1)(d) of the Consumer Protection Act. The state utility had also argued that the private company was not a consumer since it had purchased electricity for a commercial purpose.

Section 2(1)(d) defines "consumer" as follows:-

"Consumer" means any person who, -
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid
or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtain such goods for resale or for any commercial purpose; or
(ii) hires any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires the services for consideration paid or promised, or
partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person."

According to Section2(1)(m), "person" includes :-

"(i) a firm whether registered or not;
(ii) a Hindu undivided family;
(iii) a co-operative society;
(iv) every other association of persons whether registered
under the societies Registration Act, 1860 (21 of 1860)
or not."

Section 2(1)(o) defines "service" thus:

"Service' means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying a news or other information, but does not include the rendering of any service free of charge or under a contract of personal service."

re : contention -(i)

The question that falls for determination is: is a private limited company a `person' as contemplated under Section 2(1)(d).

Section 2(1)(m) which enumerates four categories namely,

(i) a firm whether registered or not;
(ii) a Hindu undivided family;
(iii) a co-operative society; and
(iv) every other association of persons

whether registered under the Societies Registration Act, 1860 (21 of 1860) or not while defining `person' cannot be held to be restrictive and confined to these four categories as it is not said in
terms that `person' shall mean one or other of the things which are enumerated, but that it shall `include' them.

The General Clauses Act, 1897 in Section 3(42) defines `person':

"Person shall include any company or association or body of individuals whether incorporated or not."

While defining `person' in Section 2(1)(m), the Legislature never intended to exclude a juristic person like company. As a matter of fact, the four categories by way of enumeration mentioned therein is indicative, categories (i), (ii) & (iv) being un-incorporate and category (iii) corporate, of its intention to include body corporate as well as body un-incorporate. The definition of `person' in Section 2(1)(m) is inclusive and not exhaustive.

Hence the apex court said: " It does not appear to us to admit of any doubt that company is a person within the meaning of Section 2(1)(d) read with Section 2(1)(m) and we hold accordingly."

It also said KPTC could be held liable for deficiency in service under the consumer law. "...the provision of facilities in connection with supply of electrical energy is a service. Supply of electricity by the (Karnataka state electricity) Board or for that matter KPTC to a consumer would be covered under Section 2(1)(o) being 'service' and if the supply of electrical energy to a consumer is not provided in time as is agreed upon, then under Section (2)(1)(g), there may be a case for deficiency in service."

No agreement for giving or taking dowry is required to prove the offence of dowry death

The Supreme Court has ruled that no agreement for giving or taking dowry is required to prove the offence of dowry death.

While upholding the conviction and sentence of father-in-law for setting afire his daughter-in-law for dowry, a bench comprising Justices Arijit Pasayat and Mukundakam Sharma, in the judgement in Prem Kumar vs State of Rajasthan dated 7/01/2009, noted, 'While interpreting section 304B of the IPC (Dowry death), if courts insist on such agreements than virtually no offender can be booked.' The apex court further noted, 'Hardly, any offender would come under the clutches of law.' Prem Kumar, the father-in-law, was acquitted by the trial court.

In order to attract Section 304B IPC, the following ingredients are to be satisfied.

i) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances.

ii) Such death must have occurred within 7 years of the marriage.

iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband; and

iv) Such cruelty or harassment must be in connection with the demand of dowry.


Sections 304B and Section 498A read as follows:

"304-B. Dowry Death- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death.

Explanation - For the purpose of this sub-section `dowry' shall have same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."

"498-A: Husband or relative of husband of a woman
subjecting her to cruelty- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation - For the purpose of this section `cruelty' means -

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit sucide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

The term "dowry" has been defined in Section 2 of the Dowry

Prohibition Act, 1961 (in short `Dowry Act') as under:-


"Section 2. Definition of `dowry' - In this Act, `dowry'
means any property or valuable security given or agreed
to be given either directly or indirectly -


(a) by one party to a marriage to the other party
to the marriage; or

(b) by the parents of either party to a marriage
or by any other person, to either party to the
marriage or to any other person,

at or before or any time after the marriage in connection
with the marriage of the said parties, but does not
include dower or mehr in the case of persons to whom
the Muslim personal law (Shariat) applies.

Explanation I- For the removal of doubts, it is hereby
declared that any presents made at the time of a marriage
to either party to the marriage in the form of cash,
ornaments, clothes or other articles, shall not be deemed
to be dowry within the meaning of this section, unless
they are made as consideration for the marriage of the
said parties.

Explanation II- The expression `valuable security' has
the same meaning in Section 30 of the Indian Penal
Code (45 of 1860)."


Explanation to Section 304-B refers to dowry "as having the same meaning as in Section 2 of the Act", the question is : what is the periphery of the dowry as defined therein ? The argument is, there has to be an agreement at the time of the marriage in view of the words "agreed to be
given" occurring therein, and in the absence of any such evidence it would not constitute to be a dowry. It is noticeable, as this definition by amendment includes not only the period before and at the marriage but also the period subsequent to the marriage. This position was highlighted in Pawan Kumar and Ors. v. State of Haryana (1998 (3) SCC 309).

Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows:-

 "113-B: Presumption as to dowry death- When the
question is whether a person has committed the dowry
death of a woman and it is shown that soon before her
death such woman has been subjected by such person to
cruelty or harassment for, or in connection with, any
demand for dowry, the Court shall presume that such
person had caused the dowry death.
Explanation - For the purposes of this section `dowry
death' shall have the same meaning as in Section 304-B
of the Indian Penal Code (45 of 1860)."


The presumption shall be raised only on proof of the following essentials:
(1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC).

(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with any demand for dowry.

(4) Such cruelty or harassment was soon before her death.


A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the `death occurring otherwise than in normal circumstances'. The expression `soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates.
Evidence in that regard has to be led by prosecution. `Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the
proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression `soon before her death' used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression `soon before' is not defined. A reference to expression `soon before' used in Section 114. Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods `soon after' the theft, is either the thief or has received the goods knowing them to be stolen, unless he can
account for his possession. The determination of the period which can come within the term `soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression `soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.

Rajasthan High Court, however, reversed the order of the acquittal and held the appellant guilty of the killing of his daughter-in-law by setting her ablaze.

The apex court dismissed the appeal of the accused and held that as per section 3 and 4 of the Dowry Prohibition Act both giving and taking dowry is an offence.

An Accused can be convicted on the basis of reliable Extra-Judicial Confessions

The Supreme Court has said that an accused can be convicted on the basis of reliable extrajudicial confessions. It is not open to the court to presume such confessions as weak evidence while deciding the cases, said apex court.

A bench comprising Justice Arijit Pasayat and Justice P Sathasivam while deciding the case of Mohd. Azad @ Samin vs State of West Bengal, dated 5/11/2008, said:

An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility".

Judicial confessions are those which are made before a magistrate or a court in the course of judicial proceedings. Extra-judicial confessions are those which are made by the party elsewhere than before a magistrate or court.

Extra-judicial confessions are generally those that are made by a party to or before a private individual, which includes even a judicial officer in his private capacity. It also includes a magistrate who is not especially empowered to record confessions under Section 164 of the Code of Criminal Procedure, 1973.

The court dismissed the plea of two appellant convicts who had challenged a Calcutta high court order. They were convicted taking into account extra-judicial confessions.

Sexual Harassment in the Workplace

It is behavior that is bothersome, irritating, demeaning, and annoying. Sexual harassment is harassment of a sexual nature. But it can be more! It is against the law! It can lead to substantial and embarrassing court fines and significant payments to an injured party. It can mean reduced productivity. It can be measured in lower stock value. It can be a hostile work environment. It is wrong.

Sexual harassment is basically defined as unwelcome sexual conduct that is servere or pervasive and that creates a hostile or abusive work environment. There are two types of sexual harassment claims. The most common in recent years has been hostile environment sexual harassment. This type of harassment is usually motivated by an animus toward women or sexual desire, and takes the form of sexual advances, jokes, comments or actions that alter the work environment. The second type of sexual harassment is called quid pro quo (”this for that”) sexual harassment. Quid pro quo sexual harassment most often occurs where a supervisor or manager threatens some adverse employment action absent relenting to sexual demands or offers employment benefits in exchange for sexual favors.

Landmark Supreme Court judgment on Sexual Harassment of Women at Work Place

In the Landmark case of Vishaka and others versus State of Rajasthan (AIR 1997 Supreme Court 3011), The Supreme Court issued extensive guidelines to ensure prevention of sexual harassment of women at their work place. These directions were issued in a writ petition arising out of an incident of alleged brutal gang rape of a social worker in a village of Rajasthan.

This petition was filed for the enforcement of fundamental rights of working women under article 14, 19 and 21 of the Constitution of India in view of the prevailing climate in which the violation of these rights is not uncommon. With the increasing awareness and emphasis on gender justice, there is an increase in the effort to guard against such social violations; and the resentment towards incidents of sexual harassment is also increasing.

This petition was in Sexual Harassment in the Workplace and was brought as a class action by certain social activits and NGOs.

It has been held by the Supreme Court that it shall be the duty of the employer to prevent the commission of sexual harassment and to provide the procedures for the resolution and prosecution of acts of sexual harassment by taking all the steps required.

Sexual harassment has been described as including such unwelcome sexually determined behaviour (whether directly or by implication) as:

(a) physical contact and advances;

(b) a demand or request for sexual favours;

(c) sexually coloured remarks;

(d) showing pornography;

(e) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

It has been held that all employers should take appropriate step to prevent sexual harassment: (a) The prohibition of sexual harassment should be notified published and circulated in appropriate ways. (b) The rules/regulation of government of public sector bodies should included rules prohibiting sexual harassment and provide for appropriate penalties. (c) As regard private employees steps should be taken to include the prohibition in this standing orders under the Industrial Employment (Standing Orders) Act, 1946.

The employer has been directed to initiate criminal action by making a complaint in cases where specific offence of sexual harassment has taken place. He is also required to initiate disciplinary action.

Lawyers to observe strike against CrPC amendments Wednesday

New Delhi, Feb 16 (IANS) Lawyers across the country will observe a nationwide strike Wednesday demanding repeal of an amendment to the Criminal Procedure Code (CrPC) that they say takes away the mandatory provision of arrest in certain cases.

The Delhi High Court Bar Association (DHCBA) along with the federation of all Bar Associations of Northern States will observe a nationwide strike on Wednesday.

DHCBA secretary D.K.Sharma said: “We will observe hunger strike Wednesday to raise our voice against amendments in section 41 and section 309 of CrPC. We have also sent a memorandum to the home ministry to consider the amendments.”

The amendment to the CrPC gives the police freedom to use their discretion on whether to arrest an accused in offences punishable with jail terms of up to seven years.

Meanwhile, the Co-ordination Committee of all Bar Associations of Delhi will also abstain from work Tuesday and hold an all India strike Wednesday and a massive demonstration outside parliament.

“The legal fraternity of India strongly condemns the central government for making such amendments, which are pro-criminal and help the politicians, their henchmen and corrupt bureaucrats who indulge in bribes, land grabbing and other offences,” Rajiv Khosla, spokesperson for the striking lawyers’ coordination committee, told reporters.

He added: “In fact, the amendments brought by the government will give boost to criminals to commit more and more crimes as the fear of being arrested will no more be in their mind because the mandatory provision of arrest in cases that entail punishment upto seven years has been taken away.”

Jaiveer Singh Chauhan, Secretary Delhi Bar Association, said: “With the introduction of amendments in CrPC the chances of more corruption in the police department cannot be ruled out as already the police department has been found to be one of the most corrupt departments in the country.”

The amendment proposes that a police officer may, instead of arresting the person concerned, issue a notice of appearance, asking him to cooperate in the probe.

No arrest will be made in a non-cognisable offence except under a warrant or order of a magistrate. The reasons for arrest should be sound and recorded in writing by the police officer, the amendment proposes.

CrPC (Amendment) Act 2008 gets Presidents accent

http://www.vakilno1.com/LegalViews/index.php/tag/crpc-amendments/

President gives accent to Law forbidding arrest in offenses carrying upto seven years imprisonment

It has been reported in the Times of India dated 19th January, 2009 that the President has granted assent to the law past nearly three week back by the parliament which brings about major changes in the Criminal Procedure Code. This newly enacted law take away the powers of the police to arrest in cases of alleged offenses which carry a maximum sentence upto seven years of imprisonment.

Once the law, CrPC (Amendment) Act 2008, becomes effective, the police, instead of arresting the accused, will be obliged to issue him/her a “notice of appearance” for any offence punishable with imprisonment up to seven years. The person can be arrested only if he/she does not appear before the police in response to the notice.

Seven years or less is the maximum penalty for a lot of offences. These offences include such as attempt to commit culpable homicide, kidnapping, death by negligence, cheating, voluntarily causing grievous hurt, outraging a woman’s modesty, robbery, attempt to suicide.

These amendments have been made in section 41 of the CrPC. Under Section 41, as it originally stood, a police officer may, without an order of a magistrate and without a warrant, arrest any person who has been concerned in any cognisabale offense. The rationale of the amendment in section 41 of the code of criminal procedure has been justified by the home minister of India Shri P. Chidambaram reportedly in his letter which says that the provision was being capable of being misused and was in fact actually being misused in practice. He substantiated this claim of misuse of the arrest law by the police using it more of an engine of harassment rather than an instrumentality of fair investigation by citing the various reports of the law commission of India, the Malimath committee of reforms, and the landmark supreme court judgment in the case of DK Basu. In fact it was misused of this law that had necessitated the delivering of DK Basu judgment in which various dos’ and donts’ were prescribed to be strictly complied by the police force while investigating a case and arresting an accused.

The amendment in CrPC, however, allows police to arrest without an order from a magistrate and without a warrant a person who commits a cognisable offense “in the presence of a police officer”.

It also enables arrest of “a person who has committed a cognisable offence (punishable for a term which may be less than 7 years or extend upto 7 years) if there is a reasonable complaint or credible information or a reasonable suspicion and the police officer is satisfied that such arrest is necessary for proper investigation of the offence or for preventing tampering with the evidence“. The only additional requirement in such cases is that the police officer will have “to record his reasons” for making the arrest.

SUPREME COURT BAR ASSOCIATION OPPOSED TO CRIMINAL PROCEDURE CODE AMENDMENT BILL

The Supreme Court Bar Association is opposed to the amendments made in the Criminal Procedure Code (CrPC) giving discretionary powers to police not to arrest a person who is involved in an offence having maximum sentence of seven years.

The bill, which was passed by Parliament on December 23 without any discussion as on that day eight bills were passed in 17 minutes and has also received Presidential assent, is likely to be challenged in the Supreme Court when it is notified by the government to enforce the amendments.

SCBA President P H Parekh told UNI that he was with the bar associations of the country, who are opposing the amendments. SCBA Secretary K C Kaushik said it was wrong on the part of the government to introduce such a bill in Parliament without taking the legal fraternity and bar associations into confidence. According to Mr Parekh, the SCBA has already passed a resolution opposing the amendments. There is widespread belief among lawyers that these amendments would give a free hand to frauds, unscrupulous elements, extortionists, those demanding dowry and other offenders without any fear of being arrested, leaving law-abiding citizens at the mercy of anti-social elements, police and politicians with criminal track records. Police would misuse its discretionary powers to shield the culprits, they contend. The apex court is already seized of a PIL which raises the important and similar issue of whether police officers should be given discretionary powers in case of commission of a cognisable offence or not.

Chief Justice K G Balakrishnan had expressed the views that a person should not be arrested without verifying the veracity of allegations so that people are not implicated in false cases to settle personal and political scores while Justice B N Aggarwal, who is the next senior most judge in the Supreme Court, holds opposite views and had observed, �Discretion will amount to give the police a handle.' The lawyers have already declared that they would observe a nationwide strike against the amendments on February 3. According to the amendments, police would have to seek prior permission of the court before arresting a person and would be able to arrest people only involved in heinous crimes like murder, rape and dacoity.

Death for Pandher, Koli

Saturday, Feb 14, 2009


Surinder Koli.

Ghaziabad (U.P.): A special court on Friday awarded the death sentence to businessman Moninder Singh Pandher and his domestic help Surinder Koli for the rape and murder of a 14-year-old girl, one of 19 victims in the sensational Nithari serial killings.

Special CBI judge Rama Jain termed the crimes committed by 55-year-old Pandher and 38-year-old Koli the “rarest of rare” deserving capital punishment.

While counsel for the victim’s family Khalid Khan described the verdict as a “slap in the face of the CBI,” which gave a clean chit to Pandher, the businessman’s son, Karandeep Singh, said his father was innocent and he would appeal against the judgment in the Allahabad High Court.

The court on Thursday convicted Pandher and Koli under various Sections of the Indian Penal Code for murder, rape, criminal conspiracy and destruction of evidence.

In its final arguments on Friday, the CBI sought the death penalty for Koli but left to the court the quantum of punishment for Pandher as the agency had no charges against him in this case.

The judge said: “No more penalty could be awarded to the accused persons; otherwise, they deserve more punishment as their act of murder and rape in this particular case was beyond all the canons of humanity.” After the verdict, Pandher broke into tears while Koli remained unmoved.

‘Remorseless’

Earlier, during final arguments, CBI counsel argued that Koli had no right to live in society because even today he was remorseless. “He continues to be a threat to society,” Mr. Ahluwalia said. — PTI

SEBI relaxes takeover norms

Saturday, Feb 14, 2009

MUMBAI: The Securities and Exchange Board of India (SEBI) on Friday eased takeover norms for companies whose boards have been superseded by the government, under which suitors need not make an open offer.

SEBI amended the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 1997, allowing companies a special status in the bidding process. following the scam tainted Satyam was taken over by the Government in January. This would help the newly appointed board find a bidder as well as a realistic bidding price for the company.

These regulations may be called the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) (Second Amendment) Regulations, 2009, and it has come into force from Friday.

In the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 1997, (i) in regulation 25, after sub-regulation (2A), a new sub-regulation has been inserted, namely, (2B). “No public announcement for a competitive bid shall be made after an acquirer has already made the public announcement pursuant to relaxation granted by the Board in terms of regulation 29A”.

Further, in the same regulation, after regulation 29, the following regulation has been inserted, namely, “Relaxation from the strict compliance of provisions of Chapter III in certain cases. 29A:

The board may relax any or more of the provisions of this Chapter, subject to such conditions as it may deem fit, if it is satisfied that

(a) the Central Government or State government or any other regulatory authority has removed the board of directors of the target company and has appointed other persons to hold office as directors for the time being for orderly conduct of the affairs of the target company;

(b) such directors have devised a plan which provides for transparent, open, and competitive process for continued operation of the target company;

(c) the conditions and requirements of the competitive process are reasonable and fair;

(d) the process provides for details, including the time when the public offer would be made, completed and the manner in which the change in control would be effected; and

(e) the provisions of this Chapter are likely to act as impediment to implementation of the plan of the target company”.

Takeover

In business, a takeover is the purchase of one company (the target) by another (the acquirer, or bidder). In the UK, the term refers to the acquisition of a public company whose shares are listed on a stock exchange, in contrast to the acquisition of a private company.

Friendly takeovers

Before a bidder makes an offer for another company, it usually first informs that company's Board of Director. If the board feels that accepting the offer serves shareholders better than rejecting it, it recommends the offer be accepted by the shareholders.

In a private company, because the shareholders and the board are usually the same people or closely connected with one another, private acquisitions are usually friendly: if the shareholders agree to sell the company then the board is usually of the same mind or sufficiently under the orders of the shareholders to cooperate with the bidder. This point is not relevant to the UK concept of takeovers, which always involve the acquisition of a public company.

Hostile takeovers

If management may not be acting in the best interest of the shareholders (or creditors, in cases of bankrupt firms), a hostile takeover allows a suitor to bypass intransigent management. This enables the shareholders to choose the option that may be best for them, rather than leaving approval solely with management. In this case, a hostile takeover may be beneficial to shareholders, which is contrary to the usual perception that a hostile takeover is "bad."

A takeover is considered "hostile" if:

• The board rejects the offer, but the bidder continues to pursue it, or
• The bidder makes the offer without informing the board beforehand

A hostile takeover can be conducted in several ways. A tender offer can be made where the acquiring company makes a public offer at a fixed price above the current market price. Tender offers in the USA are regulated with the Williams Act. An acquiring company can also engage in a Proxy fight whereby tries to persuade enough shareholders, usually a simple majority, to replace the management with a new one which will approve the takeover. Another method involves quietly purchasing enough stock on the open market, known as a creeping tender offer, to effect a change in management. In all of these ways, management resists the acquisition but it is carried out anyway.

The main consequence of a bid being considered hostile is practical rather than legal. If the board of the target cooperates, the bidder can conduct extensive due diligence into the affairs of the target company. It can find out exactly what it is taking on before it makes a commitment. But a hostile bidder knows about the target only the information that is publicly available, and so takes a greater risk. Also, banks are less willing to back hostile bids with the loans that are usually needed to finance the takeover.

Reverse takeovers

A reverse takeovers is a type of takeover where a private company acquires a public company. This is usually done at the instigation of the larger, private company, the purpose being for the private company to effectively float itself while avoiding some of the expense and time involved in a conventional IPO. However, under AIM rules, a reverse take-over is an acquisition or acquisitions in a twelve month period which for an AIM company would:

• exceed 100% in any of the class tests; or
• result in a fundamental change in its business, board or voting control; or
• in the case of an investing company, depart substantially from the investing strategy stated in its admission document or, where no admission document was produced on admission, depart substantially from the investing strategy stated in its pre-admission announcement or, depart substantially from the investing strategy.

Financing a takeover

Funding

Often a company acquiring another pays a specified amount for it. This money can be raised in a number of ways. The company may have sufficient funds available in its account, but this is unusual. More often, it will be borrowed from a bank, or raised by an issue of bonds. Acquisitions financed through debt are known as leveraged buyouts, and the debt will often be moved down onto the balance sheets of the acquired company. The acquired company then has to pay back the debt. This is a technique often used by private equity companies. The debt ratio of financing can go as high as 80% in some cases. In such a case, the acquiring company would only need to raise 20% of the purchase price.

Loan note alternatives

Cash offers for public companies often include a "loan note alternative" that allows shareholders to take part or all of their consideration in loan notes rather than cash. This is done primarily to make the offer more attractive in terms of taxation. A conversion of shares into cash is counted a disposal that triggers a payment of capital gains tax, whereas if the shares are converted into other securities, such as loan notes, the tax is rolled over.

All share deals

A takeover, particularly a reverse takeovers, may be financed by an all share deal. The bidder does not pay money, but instead issues new shares in itself to the shareholders of the company being acquired. In a reverse takeover the shareholders of the company being acquired end up with a majority of the shares in, and so control of, the company making the bid. The company has managemental rights.

Perceived pros and cons of takeover

While perceived pros and cons of a takeover differ from case to case, there are a few worth mentioning.

Pros:

1. Increase in sales/revenues (e.g. Procter & Gamble takeover of Gillette)
2. Venture into new businesses and markets
3. Profitability of target company
4. Increase market share
5. Decrease competition (from the perspective of the acquiring company)
6. Reduction of overcapacity in the industry
7. Enlarge brand portfolio (e.g. L'Oréal's takeover of Bodyshop)
8. Increase in economies of scale.
   

Cons:

1. Reduced competition and choice for consumers in oligopoly markets. (Bad for consumers, although this is good for the companies involved in the takeover)
2. Likelihood of job cuts.
3. Cultural integration/conflict with new management
4. Hidden liabilities of target entity.
5. The monetary cost to the company.

What is MACT ?

Motor Accidents Claims Tribunal MACT deals with matters related to compensation of motor accidents victims or their next of kin .The Tribunal deal with claims relating to loss of life/property and injury cases resulting from Motor Accidents.

MACT Courts are presided over by Judicial Officers from the State Higher Judicial Service. Now these Courts are under direct supervision of the Hon’ble High Court of the respective state

Who can report to MACT in case of accident ?

Victim himself or through Advocate,in the case of personal injury. Through advocate in case of minor applicant below the age of 18 years. Legal heirs themselves or through advocate in the case of death.The owner of the vehicle in the case of property damage.

What all documents should accompany the petition ?

1. Copy of the FIR registered in connection with said accident, if any.

2. Copy of the MLC/Post Mortem Report/Death Report as the case may be.

3. The documents of the identity of the claimants and of the deceased in a death case.

4. Original bills of expenses incurred on the treatment alongwith treatment record.

5. Documents of the educational qualifications of the deceased, if any.

6. Disability Certificate, if already obtained, in an injury case.

7. The proof of income of the deceased/injured.

8. Documents about the age of the victim.

9. The cover note of the third party insurance policy, if any.

10.An affidavit detailing the relationship of the claimants with the deceased.

Judges Vacancies: States, HCs Asked To Fix Time Schedule

03 April, 2006
While holding non-filling of posts of judicial officers responsible for ever increasing backlog of cases, the Supreme Court today issued directions to the States, Union Territories and High Courts to draw up a time schedule for filling the vacancies of judges at all levels.

A bench, comprising Chief Justice Y K Sabharwal and Mr Justice C K Thakker, directed them to file details of the time schedule and date from which it would be operational, within three months.

It ruled that non-filling of vacancies for long not only resulted in avoidable litigation but also increased frustration among the candidates. This was one of reasons of huge pendency of cases in the courts.

The Court found it necessary to evolve a mechanism to speedily determine and fill the vacancies of judges at all levels. "For all these and other steps if any, it is necessary to provide for fixed time schedule so that system works automatically and there is no delay in filling up of vacancies," the court observed.

"The dates for taking these steps can be provided on the pattern similar to filling of vacancies in some other services or filling of seats for admission to medical colleges. The time schedule appended to the regulations governing medical admissions sets out a time schedule for every step to be strictly adhered to every year," the Court went on to say.

The directions came while allowing appeals by some candidates challenging the Allahabad High Court judgments holding that only those candidates who were of requisite age on July 1, 2003 were eligible. The lower age was 22 years and upper age limit was 35 years for the posts of civil judges in Uttar Pradesh.

The apex court, while setting aside the High Court order on a petition filed by Malik Mazhar Sultan and another, held that those who became eligible on July 1, 2004 and those who were eligible on July 1, 2002 would be considered for appointment to the posts of civil judge (junior division). In all, 347 candidates were to be recruited to the posts of civil judge by the UP Public Service Commission. The Court directed that the recruitment process for the remaining should be completed at the earliest.

(UNI)

The extracts of the abovementioned case is as under:-

Malik Mazhar Sultan & Anr VS. U.P. Public Service Commission & Ors

CASE NO.: Appeal (civil) 1867 of 2006

PETITIONER: Malik Mazhar Sultan & Anr

RESPONDENT: U.P. Public Service Commission & Ors

DATE OF JUDGMENT: 03/04/2006

BENCH: Y.K. Sabharwal & C.K.Thakker

JUDGMENT: (With Civil Appeal Nos.............of 2006 (Arising out of SLP(C) Nos. 23314, 23316, 23702, 25179 & 24732 of 2005)

J U D G M E N T (Arising out of SLP(C) No.22523 of 2005)

Y.K.SABHARWAL, CJI.

Leave granted.

The main question to be determined in these matters, which relates to the recruitment to the posts of Civil Judge (Junior Division) under U.P Judicial Service Rules 2001 (for short 'the Rules'), is as to the eligibility of some candidates from the point of view of age.

The High Court by the impugned judgment has held only those candidates eligible who were of requisite age as on 1st July, 2003. Is the High Court right in its conclusion or 1st July, 2001 or 1st July, 2002 is the relevant date for determining the age as a condition of eligibility as cont...

First digital Lok Adalat to be held in Delhi Sunday

February 7th, 2009 - 2:15 pm ICT by IANS

New Delhi, Feb 7 (IANS) India’s first digital Lok Adalat, which will be completely paperless, will be held here Sunday to try civil and criminal cases related to ICICI Bank, an official said.”In this Lok Adalat, both criminal cases and civil suits would be taken up. This is the first initiative in India where Lok Adalat has gone digital as there would be no movement of files,” Delhi Legal Services Authority (DLSA) Project Officer Sanjay Sharma said.

Litigants involved in cheque-bounce cases would be able to avail of a digital Lok Adalat at five ditrict courts here where 100 magistrates would resolve matters related to ICICI Bank.

Litigants can access data through the private bank’s centralised database by just mentioning the credit card number, housing and auto loan number and unique ID number of the case, Sharma said.

As soon as the litigant furnishes the information, a computer printout would be generated consisting of essential details such as the unique ID number of case and name of the court that would help ICICI representatives present their view to resolve the matter.

“In case the accused or defendant and ICICI agree to settle the matter, the statement would be recorded in the performa order sheets,” he said.

The inauguration of the Lok Adalat will be presided over by Supreme Court judge Arijit Pasayat.

Information Technology Act, 2000

New communication systems and digital technology have made dramatic changes in way of transacting business. Use of computers to create, transmit and store information is increasing. Computer has many advantages in e-commerce. It is difficult to shift business from paper to electronic form due to two legal hurdles - (

a) Requirements as to writing and

(b) Signature for legal recognition. Many legal provisions assume paper based records and documents and signature on paper.

The General Assembly of the United Nations by resolution dated the 30th January, 1997 adopted the Model Law on Electronic Commerce and recommended that all States should give favourable consideration to the Model Law when they enact or revise their laws.

The Information Technology Act has been passed to give effect to the UN resolution and to promote efficient delivery of Government services by means of reliable electronic records.

As per preamble to the Act, the purpose of Act is

(a) to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as "electronic commerce", which involve the use of alternatives to paper-based methods of communication and storage of information and

(b) to facilitate electronic filing of documents with the Government agencies. - - The Act came into effect on 17.10.2000.

The Act does not apply to —

(a) a negotiable instrument as defined in section 13 of the Negotiable Instruments Act, except cheque

(b) a power-of-attorney as defined in section 1A of the Powers-of-Attorney Act

(c) a trust as defined in section 3 of the Indian Trusts Act

(d) a will as defined in section 2(h) of the Indian Succession Act, including any other testamentary disposition by whatever name called

(e) any contract for the sale or conveyance of immovable property or any interest in such property

(f) any such class of documents or transactions as may be notified by the Central Government in the Official Gazette. - - Broadly, documents which are required to be stamped are kept out of the provisions of the Act.

Overview of the Act - The Act provides for - * Electronic contracts will be legally valid * Legal recognition of digital signatures * Digital signature to be effected by use of asymmetric crypto system and hash function * Security procedure for electronic records and digital signature * Appointment of Certifying Authorities and Controller of Certifying Authorities, including recognition of foreign Certifying Authorities * Controller to act as repository of all digital signature certificates * Certifying authorities to get License to issue digital signature certificates * Various types of computer crimes defined and stringent penalties provided under the Act * Appointment of Adjudicating Officer for holding inquiries under the Act * Establishment of Cyber Appellate Tribunal under the Act * Appeal from order of Adjudicating Officer to Cyber Appellate Tribunal and not to any Civil Court * Appeal from order of Cyber Appellate Tribunal to High Court * Act to apply for offences or contraventions committed outside India * Network service providers not to be liable in certain cases * Power of police officers and other officers to enter into any public place and search and arrest without warrant * Constitution of Cyber Regulations Advisory Committee who will advice the Central Government and Controller

What does IT Act enable? - The Information Technology Act enables:* Legal recognition to Electronic Transaction / Record * Facilitate Electronic Communication by means of reliable electronic record * Acceptance of contract expressed by electronic means * Facilitate Electronic Commerce and Electronic Data interchange * Electronic Governance * Facilitate electronic filing of documents * Retention of documents in electronic form * Where the law requires the signature, digital signature satisfy the requirement * Uniformity of rules, regulations and standards regarding the authentication and integrity of electronic records or documents * Publication of official gazette in the electronic form * Interception of any message transmitted in the electronic or encrypted form * Prevent Computer Crime, forged electronic records, international alteration of electronic records fraud, forgery or falsification in Electronic Commerce and electronic transaction.

Digital signature - Any subscriber may authenticate an electronic record by affixing his digital signature. [section 3(1)]. “Subscriber" means a person in whose name the Digital Signature Certificate is issued. [section 2(1)(zg)]. "Digital Signature Certificate" means a Digital Signature Certificate issued under section 35(4) [section 2(1)(q)].

"Digital signature" means authentication of any electronic record by a subscriber by means of an electronic method or procedure in accordance with the provisions of section 3. [section 2(1)(p)].

"Affixing digital signature" with its grammatical variations and cognate expressions means adoption of any methodology or procedure by a person for the purpose of authenticating an electronic record by means of digital signature. [section 2(1)(d)].

Authentication of records - The authentication of the electronic record shall be effected by the use of asymmetric crypto system and hash function which envelop and transform the initial electronic record into another electronic record. [section 3(2)].

Verification of digital signature - Any person by the use of a public key of the subscriber can verify the electronic record. [section 3(3)]. The private key and the public key are unique to the subscriber and constitute a functioning key pair. [section 3(4)].

The idea is similar to locker key in a bank. You have your ‘private key’ while bank manager has ‘public key’. The locker does not open unless both the keys come together match.

Electronic records acceptable unless specific provision to contrary - Where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is - (a) rendered or made available in an electronic form; and (b) accessible so as to be usable for a subsequent reference. [section 4]. - - Unless there is specific provision in law to contrary, electric record or electronic return is acceptable. - - Soon, it will be possible to submit applications, income tax returns and other returns through internet.

Department or ministry cannot be compelled to accept electronic record - Section 8 makes it clear that no department or ministry can be compelled to accept application, return or any communication in electronic form.

Legal recognition of digital signatures - Where any law provides that information or any other matter shall be authenticated by affixing the signature or any document shall be signed or bear the signature of any person then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied, if such information or matter is authenticated by means of digital signature affixed in such manner as may be prescribed by the Central Government. - - "Signed", with its grammatical variations and cognate expressions, shall, with reference to a person, mean affixing of his hand written signature or any mark on any document and the expression "signature" shall be construed accordingly. [section 5].

Secure digital signature - If, by application of a security procedure agreed to by the parties concerned, it can be verified that a digital signature, at the time it was affixed, was - (a) unique to the subscriber affixing it (b) capable of identifying such subscriber (c) created in a manner or using a means under the exclusive control of the subscriber and is linked to the electronic record to which it relates in such a manner that if the electronic record was altered the digital signature would be invalidated, - - then such digital signature shall be deemed to be a secure digital signature. [section 15].

Certifying digital signature - The digital signature will be certified by ‘Certifying Authority’. The ‘certified authority’ will be licensed, supervised and controlled by ‘Controller of Certifying Authorities’.

A Note on the Civil Procedure Code Amendment Act 2002

THE CIVIL PROCEDURE CODE (AMENDMENT) ACT 2002

The 2002 amendment to the Civil procedure Code, 1908 (“CPC“ in common usage), is the latest Parliamentary effort at making litigation in the country more effective and speedy. The Code is a consolidation of procedural laws that prescribe for civil courts, the practice, procedure and machinery for the enforcement of substantive law (- i.e. Rights and liabilities of parties to a dispute.). It extends to the whole of India barring the States of Jammu and Kashmir; (2) Nagaland and the tribal areas.

The Amendment of 2002 comes in the wake of the Amendment act of 1999, which was enacted to reduce the delays, experienced by litigants at various levels. It seeks to address those provisions introduced by the Act of 1999 that have been criticized as causing hardships to litigants and also other proposals to reduce delays faced

Litigation consists of the following stages, broadly categorised as pre-trial and trial proceedings. For the sake of clarity, the amendments are presented in conjunction with the stage of litigation they correspond to..

Sl. No.	Stages of Litigation	Corresponding Amendments made by the Act of 2002.
I)	PRE-TRIAL PROCEEDINGS
(a)	Institution of plaint, along with documents relied on	Under the amended Order, Rules 17 & 18 of the CPC Any documents that the plaintiff wants to rely on which have not been either attached along with the plaint or stated in the list can’t be subsequently introduced without the leave of the court. This provision would lead to greater efficiency if followed strictly. The position under the amendment introduced in 1999 was that new documents could only be introduced for the purpose of cross examination or to refresh the witness’s memory In cases where there’s delay in production of documents due to no fault of the client, the Court may consider that as a sufficient reason and allow the subsequent production of documents.
(b)	Service of summons to the opposite party (defendant) to submit their written statement.	Amendment to Rule 9, Order V: Summons shall be delivered by the proper officer of the court in the ordinary course, as opposed to the pre- amendment position, where in some cases, the plaintiff or her agent could deliver the summons. Now the plaintiff only has to provide the required number of copies of the plaint and to pay the costs of delivery. If this is not done within the stipulated period of 7 days then the suit shall be dismissed (Amended Rule 2 of the first schedule of Order IX ), Rule 2 of Order IX as amended. However, on application to the court, the plaintiff may be allowed to issue summons herself. (Rule 9-A) Summons may now be delivered through Fax, or email also. In cases where the defendant resides outside the jurisdiction of the court where the suit is filed, such court can direct service of summons through any one of the courier services approved by it. An improvement over the 1999 Act insofar as the local court has now got power to approve the courier service, whereas earlier only the HC had the power to do so. The decentralisation should speed up the litigation. However all this is subject to the Rules made by the High Court. what kind of rules are made by the High Court are yet to be sseen and only then can the efficacy of this provision be commented on. . If the Defendant. refuses to accept summons (which is till now a common problem), whether it is served personally by the proper officer through any of the new modes introduced, the court on being intimated, can issue a declaration to the effect that the summons have been duly served. Rule 9 (5) (what is the effect of such a declaration? - contempt of court?)
(c )	Filing of Defendants written statement	The defendant has to submit the written statement within 30 days of the service of summons. This may be extended upon an application to the court, up to a maximum of 90 days Reasons for granting extension to be recorded in writing (as per amended Rule 1 sub rule (i), Schedule I of Order V,). Regarding the introduction of additional. documents at a later stage the similar rule applies to the defendant. as to the plaintiff mentioned above. If the defendantt. fails to file the written statement within the given time the court may pass any order against the erring party or a judgment / decree. Amended Order VIII Rule This provision would definitely further the cause of speedy justice..
II	TRIAL PROCEEDINGS
a)	Hearings in Court ADJOURNMENTS !	Once the hearing is commenced both the plaintiff and defendant shall not be given leave by the court to amend the suit unless the court is decides that in spite of due diligence being exercised the party could not have raised the matter. Rule 17 of Order VI Further if the party does not amend the suit within the given time then she shall not be allowed to unless the court extends the time. Rule 18 Of Order Vi The Act of 2002 has reintroduced the power of the Court to amend /strike out issues for the purpose of determining the matter in controversy between the parties. (Rule V of Order XIV). This power was taken away by the 1999 amendment. The court shall not grant more than three adjournments to either party to the suit. Any adjournment shall only be granted after the party requesting time shows sufficient cause. In each adjournment, the court shall make an order as to costs faced by the other party as a result of the adjournment. The court may also award higher costs if its thinks fit. Possibly a punitive measure
i)	Presentation of oral arguments	The court may fix a time limit for oral arguments of either of the parties as it thinks fit. (Sub Rule 3- D Rule 2, Order XVIII, First Schedule) Sometimes oral arguments tend to drag on for hours together. However there is also a provision by which written arguments can be submitted. This is a useful provision, because it offsets any possible injustice owing to the refusal of the Court to hear the arguments.
ii)	Examination in chief cross – examination by the other side. of both parties witnesses.	The examination in chief of the witnesses of both parties shall be rendered via affidavit and furnished to the court. The evidence (re-examination and Cross examination) may be taken by a commissioner appointed by the court for this purpose, on the same day. However usually (even after the new act, time is granted for cross examination)
b)	Pronouncement of Judgment and Decree/Order	Judgement to be ordinarily pronounced within 30 days subject to a maximum time limit of 60 days ( for extraordinary reasons) But this is also not absolute….( per amended Order XX) In cases where the court orders sale of the defendants property in pursuance of the claim awarded to the plaintiffs. As per the amendment, the defendant now has 60 days (as opposed to the earlier 30 days) for depositing the suit money in court. The amendment removes the anomaly between the Code and the limitation act, which granted 60 days to the defendant before making the sale absolute. The amendment is particularly beneficial for poorer litigants who now have additional time to come up with the funds.
c)	Revision of Lower courts Order	Section 115 has been amended to the disadvantage of litigants. Under the amended provision, when a party files a Civil Revision Petition aggrieved by the Order of a lower Court, the High Court cannot reverse such Order except where the Order, if it had been made in favour of the Revisioner, would have had the effect of finally disposing of the proceedings. For example, if a Plaintiff in a suit wishes to make an amendment to the Plaint and the Trial Court rejects the application, the High Court cannot reverse this order, as it would not have finally disposed of the case if the Order had been in favour of the Plaintiff
d).	Appeal	The appeal process has been limited so that hence forth no appeal shall lie from the judgment of a single judge of a High court and no second appeal in any suit (irrespective of whether it comes up before the high court or a lower court) where the subject value of the original suit is up to Rs. 25,000/- (Substituted new section 102)
III.	SETTLEMENT OF DISPUTES OUTSIDE OF COURT	The Act of 1999, has introduced a new provision (S.89) where the court may by itself, proactively refer a dispute for alternative dispute resolution methods if it appears that elements of a settlement exist, which may be acceptable to the parties to the dispute. The Provision is a good one provided that it does not in any way prevent the parties themselves withdrawing the case so that they may settle through any mode of alternate dispute resolution that is acceptable to both parties.