LegalCrystal – Blog

[News you can use]

Saheli, an NGO has urged the Supreme Court to reconsider its decision on pre-marital sex and live-in relationships.

By encouraging pre-marital sex and live-in relationships, incidents of abandoned babies are sure to increase and the proof of the same is the children at our centre “We have over 50 such children at Saheli, says Saheli President Kiran and such move could lead to more babies being abandoned on the streets!

“A woman, cheated and abandoned by her boyfriend came to Saheli seeking shelter and protection.  Her baby was delivered at our NGO, but as the mother’s mental condition is not stable and she’s on treatment, we are adopting the infant” says the NGO.

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Though it is said some people feel such relationship is okay in a ‘fast world’ where work pressure is high.  Its definitely a “Big social evil”.  Its no doubt spoils the entire system of family values, respect and responsibilities to the next generations to come.  In the name of free society our youngsters are hopelessly mislead!

Dear readers, Indian Legislation has not recognized live-in relationships in all aspects while formulating Laws.  Except making modification to Section 125 Cr.P.C. [for Maintenance] and under Protection of Women from Domestic Violence Act.

The personal laws remains the same which does not recognize the live-in relationships.  The difference between “Live-in” “Adultery” “Prostitution” nowhere defined.  Failure of live-in leads to adultery or even induce prostitution in many cases and the term ‘adultery’/prostitution is a criminal offence in India and also defeats many rights like property rights, compensation Claims and death benefits in many cases.

PROSPECTIVE “LIVE-IN” COUPLES KINDLY THINK BEFORE YOU BRINK”

Relevant Links:

http://lifestyle.indianetzone.com/relationship/1/live-in_relationships.htm – tips for live-in relationships

http://timesofindia.indiatimes.com/india/Maintenance-for-live-in-partner/articleshow/3178050.cms – Maintenance and other legal information

http://content.msn.co.in/MSNContribute/Story.aspx?PageID=d84ec6cf-bbac-4d3f-8e54-697822e731cd -  It is wise to adopt the good technologies, sciences, and resources of developing nations, but foolishness to adopt their rotten degraded culture.

TAGS: EVIDENCE AND POWER-OF-ATTORNEY / HOW & WHEN TO FILE POWER-OF- ATTORNEY IN CIVIL/CRIMINAL COURTS/IN FAMILY COURTS/LABOUR COURTS/RENT CONTROL COURTS/CHEQUE DISHONOUR/SEC.138 N.I.ACT CASES-

[courtesy : authors of many books I referred.]

WHEN AND HOW TO FILE POWER OF ATTORNEY IN COURT PROCEEDINGS?

Representation by Power-of Attorney Holder in Civil Cases:

A party to the Court Proceedings may be represented by a Power-of Attorney holder duly authorized by the Party/Principal.

Under Order 3 Rule 1 & 2 of Civil Procedure Code any appearance application or act in or to any Court except otherwise provided by any law made or done by the party in person or by his recognized agent or by a pleader on his behalf.

Order 3 Rule 2 of C.P.C. specifies the Power-of-Attorney holder as recognized agents for the Party.

Therefore the power-of-Attorney holder who is authorized to appear on behalf of the party can appear, file application engage advocates and act on behalf of parties.

The process to be served to the Party shall be served to the power agent[Order 3 Rule 3 C.P.C.]

Besides the recognized agents, any person residing within the jurisdiction of the Court may be appointed as agent to accept service of process [Order 3 Rule 6 C.P.C.]

The appointment may be special or general and shall be made by an instrument in writing signed by the principal and such instrument or, if the appointment is general, a certified copy thereof shall be filed in Court.

The Court may, at any stage of the suit, order any party to the suit not having a recognized agent residing within, the jurisdiction of the Court, or a pleader who has been duly appointed to act in the Court on his behalf, to appoint, within a specified time, an agent residing within the jurisdiction of the Court to accept service of the process on his behalf.

Rule 16 and 17 of the Civil Rules of Practice [T.N.] enumerates the procedure to file power of attorney by the agent and recognizing the same by the Court as follows:

Rule 16: PARTY APPEARING BY AGENT:

1. When a party appears by an agent other than a pleader or advocate the agent shall before making or doing any appearance, application, or act in or to the Court file in Court the power of attorney or written authority thereunto authorizing him, or a properly authenticated copy thereof/ or in the case of an agent carrying on a trade or business on behalf o9f a party without a written authority an affidavit stating the residence of his principal, the trade or business carried on by the agent on the behalf and the connection of the same with the subject matter of the suit and that no other agent is expressly authorized to make or do such appearance, application or act.

1. The judge may thereupon record in writing that the agent is permitted to appear and act on behalf of the party and unless and until the said permission is granted no appearance, application or act of the agent shall be recognized by the Court.

Rule 17: SIGNING OR VERIFICATION BY AGENT:

If any proceeding which under any provision of law or these rules is required to be signed or verified by a party is signed or verified by any person on his behalf a written authority in this behalf signed by the party shall be filed, in Court. Together with an affidavit verifying the signature of the party and stating the reason of his inability to sign or verify the proceedings and proving the means of knowledge of the facts set out in the proceeding of the person signing or verifying the same.

Relevant Rules from the Madras High Court Original Side Rules with regard to filing of proceedings before High Court by the power of attorney:

Rule 7 Order II: Affidavit of recognized agent as defined in Order III, Rule 2, Civil Procedure Code to be filed:

Except as provided for by the Code if a plaint is subscribed and verified by a person other than the party on whose behalf it is presented it shall not be admitted or filed unless it is made to appear, upon affidavit that such person is a recognized agent of the party as defined by Order III Rule 2 of the Code and is duly authorized and competent so to do.

Rule 37 of Order XXV: Registrar may require further proof of execution of Power of Attorney:

Unless a power of attorney constituting such attorney can under section 85 of the Indian Evidence Act, 1872 be presumed to have been executed and authenticated as in the said section mentioned, the Registrar may require further proof of its due execution.

Rule 1 of Order XXIX: Application for execution to be made to the Registrar:

All application for the execution of decrees or orders whether of the High Court or of any o0ther Court (except as otherwise provided by these rules) shall be made by advocates or by parties in person to the Registrar.  The transmission of decrees and the issue of all necessary warrants and notices by him and all amendments thereof shall be deemed quasi-judicial acts.

Procedure in filing power-of-attorney in Civil Court:

When the Power-of-attorney holder appears for a party he has to file:

1. Authenticated copy of the Power-of-Attorney to be filed.  The Original power-of-Attorney may be produced to the officer of the Court for verification and will be taken back after due verification.

1. A petition with supporting affidavit to be filed along with an affidavit under Rule 16(2) of Civil Rules of Practice[T.N.] seeking permission to appear and act on behalf of the principal/Party as a recognized agent.  The Attorney (agent) should also state that the executor is alive at the time of filing the suit and further to aver that the power of attorney is still in force.

1. The attorney should state in the affidavit verifying the signature of his principal and stating the reasons for the principal’s inability to sign or verify the proceedings and proving the means of knowledge of the facts set out in the proceedings by the attorney signing or verifying the same.  The agent also should aver that no other agent is expressly authorized to make any such appearance or application or do such an act.

1. With regard to filing of the cases and taking part in the proceedings by the power of attorney holder, in the proceedings before the Madras High Court (Original Side) the Madras High Court Original Side Rules recognizes the power of attorney executed and authenticated as per section 85 of the Indian Evidence Act only.  In all other kinds of power-of attorney if needed the Registry may require further proof of due execution of the power-of-attorney relied upon.

1. In the true copies of the power-of-attorney a Court fee of Rs.5/- to be affixed as per the Article15, Schedule II of the Tamil Nadu Court Fees and Suits Valuation Act 1955.

Appearance by power agent in Court: In Surender Raj Jaswal Vs. Smt. Vijaya Jaiswal [AIR 2003 AP 317],  the question as to whether the General Power of Attorney holder of the respondent is entitled to appear and prosecute the case considered.  In this case the plaintiff gave power of attorney to her husband who is well acquainted with the facts of the case and who is looking after her affairs.  The Court permitted the plaintiff’s power of attorney holder under Rule 32 and 33 of Civil Rules of Practice (A.P.) to prosecute the case of the plaintiff by tendering evidence.  The Power of Attorney holder cross examined the defendant which was agitated by the defendant.  It was held that when the trial Court permitted the power agent to prosecute the case and to cross examine the witnesses, the said agent was helping the Court by appearing for the plaintiff and there was no remark noticed by the trial Court.  It was held further that it is always open to the Court to withdraw or cancel permission if the power of attorney holder is unworthy or reprehensible.

When can a General Power of Attorney holder give evidence:

When once a person files a suit on behalf of the party, as a G.P.A. holder he enters into the shoes of that party and except to the extent of personal knowledge, he is entitled to depose on other facts.  In the instant case, what was relied upon by the plaintiffs is entirely documentary evidence, which are public documents and no personal knowledge was required to be pressed into service to establish the case of plaintiff [Secretary to Govt. of India Vs. Indira Devi, AIR 2003 A.P. 329 (DB)]

In Shanthi Devi Agarwal Vs. V.H. Lulla [AIR 2004 M.P. 58], the Madhya Pradesh High Court while considering letting of evidence by Power-of-Attorney holder held that a power of attorney holder, who virtually steps into shoes of a party can place materials in terms of the definition of ‘evidence’ as above, on behalf of that p0arty, before a Court under Section 118 of the Evidence Act unless he stands disqualified for the reasons given in that section itself and further, admissibility of his evidence would be subject to rigorous procedure contained in Chapter X thereof.  That apart a bona fide requirement is also with reference to family and it can be proved by any member of the family.  In the instant case old age of the plaintiff is a good ground that her son, the power of attorney holder, should have been allowed to tender evidence on her behalf.

In P.Punnaiah Vs./Jeypore Sugar Co. Ltd.,[AIR 1994 SC 2258], the Supreme Court held that the normal rule is that whatever a person can do himself, he can do it through his agent, except certain functions which may be personal in nature or otherwise do not admit of such delegation.

In Humberto Luis Vs. Floriano Armando Luis [2000 AIHC 1572 (Bom.) = 2000(1) Mah LJ 690] it was held that a person holding a power of attorney can depose in the witness box on behalf of the party.

In Moulasab Vs. Sri Mohammed Hasim deceased by LRs and others [2003 (1) KCCR 239 = ILR 2003 (2) Kar 1041 =2003(2) KLJ 48]. It was held that the recognized agent holding GPA cannot be allowed to plead and argue.  He can only appear and conduct the judicial proceedings and has no right of audience.  Power to plead on behalf of a party to judicial proceedings is vested only with the pleader.  This is vbery clear from the provisions contained in Order 3, Rule 2 and Orde3rs 3 Rule 4 of CPC.

In Jaymal Thakore Vs. Charity Commissioner, Ahmedabad [AIR 2001 Guj. 279], it was held that a chartered accountant holding a power of attorney can file application on behalf of a party in the proceedings but he cannot act as pleader for the party as contemplated by the provisions of the Advocate Act.

TAGS:PUBLIC INTEREST DISCLOSURES / PERSON WHO EXPOSES WRONG DOING / WHISTLEBLOWER /

[News you can use]

WHISTLEBLOWERS HAVE NO LEGAL PROTECTION IN INDIA!

What is a Whistleblower protection Law?

A whistleblower is defined as someone who exposes wrong doing, fraud, corruption or mismanagement.  In many cases, this could be a person who works for the government who would report misconduct within the government or it could an employee of a private company who reports corrupt practices within the Company.  The law that governments enact to protect such persons who help to expose corruption is called a whistleblower protection law.

Does India have whistleblower protection law?

No, at present India does not have any law to protect whistleblowers, though a Bill to do so is in the pipeline.  The issue of protection for whistleblowers caught the attention of the entire country when National Highways Authority of India  (NHAI) engineer Satyendra Dubey was killed after he wrote a letter to the office of Prime Minister A B Vajpayee detailing corruption in the construction of highways.  In the letter, he had asked specifically that his identity be kept secret.  Instead, the letter was forwarded to various concerned departments without masking Dubeys identity.  Dubeys murder led to a public outcry at the failure to protect him.  As a result, in April 2004, the Supreme Court pressurized the Government intol issuing an office order the Public Interest Disclosures and Protection of Informers Resolution, 2004 designating the CVC as the nodal agency to handle complaints on corruption.  However, over a year later Manjunath Shanmugham, an IIM graduate and a sales manager of the Indian Oil Corporation (IOC), was murdered on November 19, 2005 for exposing the racket of adulteration of petrol and the mafia behind it.

What is the proposed Law?

The Public Interest Disclosure (Protection of Informers) Bill, 2009 was prepared by the Department of Personnel and Training(DoPT).  As per the draft law, any person can make a complaint of corruption of disclosure against any central government employee or central government backed institution to the Central Vigilance Commission (CVC).  The CVC, which would be designated as the competent authority for complaints, would have the powers of a Civil Court,. Including powers to summon any body, order police investigation and provide security to the Whistleblower.  The CVC would not reveal the identity of the complainant but would have the authority to ignore complaints of vexatious or frivolous nature.

Do other countries have similar laws to protect Whistleblowers?

Several countries have already put in place laws to protect Whistleblowers or are in the process of doing so.  However, the level of protection and the way in which the law operates differs from country to country.  For instance, the US was one of the earliest to have the Whistleblowers Protection Act of 1989 while UK has the Public Interest Disclosures Act of 1998 and Norway has a similar law in place since January 2007.

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Useful Links:

http://www.hindu.com/op/2004/02/03/stories/2004020300381500.htm – a must read article.

http://www.whistleblowers.org/http://www.whistleblowing.org/index.html – amazing fight! you need to know

http://www.google.com/hostednews/ap/article/ALeqM5hZfwwUTu5B6IgdPp7G8lkqURujDQD9EQMH6G0 – a thought to reward the whistleblower- its great!

http://www.whistleblowers.org/ -know about upcoming April 21, 2010 Event

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TAGS: FOREIGN JUDGMENTS /  judgment is given on merit / Exparte decree of the foreign Court  /  challenged by a stranger / Foreign divorce decree / Grant of Probate by Foreign Court/ Grant of Probate by Foreign Court / custody of child / recovery by a Foreign Court / decree passed in a summary procedure/

EXECUTION OF FOREIGN DECREE/

CONCLUSIVENESS OF FOREIGN JUDGMENTS IN INDIA

[Section 13 Civil Procedure Code]

ACCEPTANCE OF FOREIGN JUDGMENTS:

Acceptance of foreign judgement when not contradictory to principle of law laid down by Indian legislature. If such foreign judgement is contrary to Indian law it will not be acceptable – for detailed information kindly visit refer: AIR 2003 Cal.105 Murari Ganguly and others Vs.Kanailal Garai and others.

CONCLUSIVENESS OF FOREIGN JUDGMENTS:

Exparte decree of the foreign Court cannot be presumed to be on merit by the aid of Section 114(e) of Evidence Act.  Where ex parte judgment passed granting decree for money but nothing indicated whether any documents were looked into or whether merits of the case considered. Such judgements, will not be enforceable in India.

For more details kindly visit:

The Indian Law Search Engine: www.legalcrystal.com- M/s International Woollen Mills Vs.M/s Standard Wool(U.K.) Ltd.  AIR 2001 SC 2134 – 2001(5)SCC 265 – 2001 (3) Rec Civ R 158 – 2002 (1) Mad LW 28 – 2001(2) LR 1765 – 2001(20 Cur CC 148 – 2001 (2) Civil Court C 448 – 2001 (44) All LR 354 – 2001 (3) All Mah LR 554

Where a judgment is given on merit by a foreign Court, taking into consideration, Indian law, covering same ground as covered by the English Law under which the decree was granted, the conclusiveness of the decree, will not b e open to challenge. Mrs.Anoop Beniwal Vs. Dr.Jagbir Singh Beniwal:AIR 1990 Del.305

Where the judgment was not on merit and the judgment was given ex parte only on the basis of pleadings and documents of the plaintiff – Defence filed before Hongkong Court not taken into consideration – Held the judgment being not on merit did not have force of law- For execution of such decree prior permission of Central Govt. was necessary.  AIR 1990 Bom.170 –Algemene Bank Nederland  NV Vs. Satish Dayalal Choksi.

FOREIGN COURT DECREE:

Decree passed by foreign Court cannot be challenged by a stranger to the proceedings unless it is proved that he had any preexisting rights and interest, which affected the decree adversely.  Any subsequent event cannot clothe such a stranger with a right to challenge such a decree.  [Deva Prasad Reddy Vs. Kamini Reddy and another, AIR 2202 Kant. 356 – 2002 (4) Rec. Civ R 758 – 2003 (1) Marri LJ 252 – 2002 (3) ICC 657 – 2002 (2) DMC 482 – 2002 (4) Civ LJ 295]

FOREIGN DIVORCE DECREE:

Foreign divorce decree where husband and wife were Hindus and governed by Hindu Marriage Act. When suit for judicial separation and maintenance was pending in Indian Court, husband obtained decree of divorce from the Court in USA though wife did not submit to the jurisdiction of USA, held, such decree obtained by husband was not enforceable in India [AIR 2003 Del. 175 – Smt.Anubha Vs. Vikas Aggarwal and Others]

GRANT OF PROBATE BY FOREIGN COURT :

Grant of Probate by Foreign Court supplemented by ancillary probate under Section 228 of Indian Succession Act – Decision of the probate Court will be binding without approaching the Civil Court – Such judgment will operate judgment in term and cannot be challenged in the Civil Court [ AIR 1992 Mad. 136 – 1991 (2) LW 487 – Alagammai and others Vs. V. Rakkammal]

Decree of Divorce passed by a Foreign Court-  Grounds mentioned under Section 13 Clauses (a) to (f) not satisfied – Neither was there any proof to bring the case within the ambit of said clauses of Section 13 C.P.C. – Held, the decree passed by the foreign Court will be binding on the parties – The law contained in Sections 13 and 14 C.P.C. which is not merely rules of procedure but rules of substantive law recognizing conclusiveness of a foreign judgment – In such circumstances the foreign decree will be binding on the parties –[AIR 1991 Ori 263 :Dr.Padmini Mishra Vs. Dr. Ramesh Chandra Mishra ] 1990 70 Cut. LT 673.

FOREIGN JUDGMENT – Application for recognition of foreign judgment filed which could be refused if it is found contrary to the public policy of the country where such judgment is sought to be invoked according to law of the said country.  In the field of Private International Law courts refused to apply rule of foreign arbitral award if it is found that the same was contrary to public policy. [AIR 1994 SC 860 Renusagar Power Company Ltd., Vs. General Electric Co.] 1994(1) SCC Supp 644.

CUSTODY OF MINOR CHILD:

Where by judgment of a foreign court, custody of child was given to mother who was foreign national – In the absence of any exceptions under Section 14 and 14, the judgement of foreign court, will be binding on the parties.  In view of the said order of the foreign judgment, the mother will be entitled to custody of the child[AIR 1994 P & H 309 Mrs.Jacquiline Kapoor Vs. Surinder Pal Kapoor] 1994(3) Pun LR 544.

Order of Supreme Court of Ontario (Canada) granting interim custody of the child with the mother – However father removed the child without authorization, in India- Held order of the Ontario Court was fully valid and given effect to – Mere allegation that the mother was living in adultery, will be of no consequence.[AIR P & H 103 Mrs.Kuldeep Sidhu Vs. Chanan Singh and others]

RECOVERY OF DEBTS DUE TO BANK AND FINANCIAL INSTITUTIONS ACT 1993

Where Decree was passed for recovery by a Foreign Court, the Tribunal under the said Act can start execution proceedings related to the said foreign judgment.  In this regard provision of Section 44-A will not prevail over Section 17 of 1993 Act [Bank of India Vs.Harshadrai Odhavji AIR 2002 Bom. 449 : 2002(3) Mah LR 735 : 2002 (3) Bank Cas 182 : 2002 (4) Cur CC 5 : 2002 (5) Bom CR 228.

EXECUTION OF FOREIGN DECREE

Decree of foreign Court – Execution of such decree, will be barred when it is found that decree was not on merit – where the decree was passed ex parte, only on the pleadings of plaintiff without evidence, such decree is not executable.[Gurdas Mann and others Vs. Mohinder Singh Brar. AIR 1993 P & H 92 : 1993(1) Pun LR 518 : 1993 HRR 222]

Where ex parte decree passed in a summary procedure under Rule 14 of Rules of Supreme Court of England – It was found that plaintiff evidence was not considered and defendant had filed no defence – Therefore, such foreign judgment was not executable in India [ Middle East Bank Ltd. Vs. Rajendra Singh Sethia AIR 1991 Cal. 335]

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