Tag: #challenge

-Report by Sejal Jethva

In Suraj VS the State of Maharashtra Home Department (Special), the petitioner filed a writ petition alleging that a total of seven violations were committed between the years of 2013 and 2022, with just two of those offences occurring in the latter year.

FACTS

The petitioner is challenging the legality or lack thereof of the impugned order dated 20/10/2022 made by respondent No.2 / District Magistrate, Amravati in accordance with Section 3(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders, Dangerous Persons, Video Pirates, Sand Smugglers, and Persons Engaged in Black Marketing of Essential Commodities Act, 1981 (MPDA Act)

PETITIONER’S CONTENTION

Senior Counsel testifying on behalf of the petitioner fiercely argued that both of the impugned orders are defective in law, lacking in rational thought and reflecting subjective pleasure with the claimed detainee’s actions. He would contend that the detention order essentially violates the tenets on four different levels. First, he claimed that neither the Sub-Divisional Police Officer (SDPO) nor the Detaining Authority interacted with Witnesses ‘A’ and ‘B’ to record their subjective satisfaction or the accuracy of the statements made by the witnesses. Second, he asserted that the Detaining Authority disregarded the bail decisions made in various cases.

The Detaining Authority was not given or given copies of these bail orders, and this fact was not taken into consideration before the detention order was granted. Thirdly, he asserted that the detenue’s alleged actions are primarily directed against individuals and would most likely result in a law and order issue rather than a threat to the general public order. Finally, he asserted that there was an unexplained delay in serving the confirmation order on the detinue, which led to the petitioner’s filing of an effective response.

RESPONDENT’S CONTENTION

Contrarily, the Public Prosecutor testifying on behalf of respondents Nos. 1 and 2 State argued that the detention’s grounds contain all pertinent information, demonstrating unequivocally that the detaining authority carefully considered all of the information presented to it before reaching a conclusion that, in his view, is grounded in legal principles. While taking such drastic action, the detaining authority is not breaking any laws. He would contend that the SDPO spoke with both witnesses, went to the location they had described, and only then filed his report, which the Detaining Authority had looked over as material.

Then he would contend that the grounds for detention reflect the Detaining Authority’s consideration of the bail orders. He further argued that the detinue’s activities have a negative impact on public order and that residents in the area are afraid to approach law enforcement agencies or the court to freely testify against the detinue because of this fear. He continued by saying that the situations that the detaining authority was considering were directly related to the custody order.

JUDGMENT

1. The third paragraph of the reasons for imprisonment states that a total of seven violations were reported between 2013 and 2022. Similar preventative measures were taken against the detained in Chapter Case No. 38/2017, and a bond was executed for three years of good conduct. Only two of the seven offences, those registered in 2022 at the Paratwada Police Station, along with the in-camera statements of witnesses A and B, were taken into consideration by the detaining authority for the current order of detention, as stated in Paragraph No. 4.

2. In the present case, the issue was brought before the Advisory Board, which determined that there was adequate justification to maintain custody. Only then, the State Government affirmed the detention in its decision dated 24 November 2022, which was effective immediately and would last for 12 months. The confirmation order was issued by the government on 24 November 2022, but the detention order was issued on 20 October 2022. It demonstrates that the order was upheld within five weeks of the date of the detention order. As a result, there is no delay in confirming the government’s custody order.

3. As a result, we believe the petitioner’s argument in the current writ petition lacks merit.  The petition is consequently without merit and subject to dismissal for the grounds listed above. Therefore, the petition is denied. The rule is still in effect.

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-Report by Sejal Jethva

ZAFAR BADYARI VS. SANDEEP SINGH, in this matter, the appellant/defendant seeks to challenge the decision made by the learned, Tis Hazari Courts, Delhi, according to Order 43 Rule 1 read with Section 104 CPC.

FACTS

The respondent/plaintiff had brought the underlying lawsuit, CS No.461/2021, following Order 37 CPC, to collect possession, licence fees, and damages of Rs.13,30,000. It was said in the lawsuit that the suit property, a shop on the ground level (apart from the mezzanine floor), had been licenced to the appellant for 11 months at a rate of Rs. 1,33,000 per month, minus additional costs. The dishonoured checks that the appellant had given to the respondent to cover the arrears were the basis for the lawsuit. The contested order states that on September 17, 2021, the appellant received summonses in the suit and was deemed to have been served. Due to the appellant’s refusal to present and/or submit a leave to defend under Rules 3 and 5 of Order 37 CPC, respectively, the trial court issued the ex-parte decree by using Rule 6 of Order 37. A finding of respondent serving of process had been made by the Trial Court.

APPELLANT’S CONTENTION

Rather than using Order 37 Rule 4 as provided for in the CPC, an application was submitted for the setting aside of the ex-parte decree under Order 9 Rule 13 of the CPC. The impugned order makes it clear that the trial court did not suffer any harm as a result of this misunderstanding and treated the case exactly as if it had been submitted in accordance with Order 37 Rule 4 and made identical decisions as such. The appellant did not establish “exceptional circumstances,” as the trial court noted in the impugned ruling, and this suggests that the trial court decided the application in accordance with Rule 4 of Order 37 and not Order 9 and Rule 13.

The appellant attempted to make arguments regarding the case’s merits, but given that the maintainability of the case has been questioned, this Court will first address the maintainability problem because the merits of the case are not currently a factor that should be taken into account. The learned counsel for the appellant was unable to cite any CPC provisions under which the appeal would fall, but he argued that because the two provisions, which essentially deal with the court’s ability to overturn an ex-parte decree, are similar, the appeal may be deemed to be maintainable against the Order 37 Rule 4 order because it is maintainable against an Order 9 Rule 13 order.

RESPONDENT’S CONTENTION

The respondent’s knowledgeable attorney, Mr. Aaditya Vijay Kumar, raised a preliminary challenge to the appeal’s maintainability. He claimed that because the contested ruling was issued in accordance with Order 37 Rule 4 CPC, it is not subject to appeal under Order 43 Rule 1 CPC.

JUDGMENT

1. In order to speed up the resolution of commercial lawsuits, Order 37 CPC relates to the summary trial method. After being served, a defendant is obligated under sub-rule 2 to appear in court; otherwise, the averments in the plaint are deemed conceded, and the plaintiff is entitled to a decree. Within ten days of receiving the summons, the defendant must appear in court and submit a memo of appearance. The plaintiff must serve the defendant with a summons for judgment upon the defendant’s attendance, and the defendant must submit an application for leave to defend the action within ten days of receiving the summons. The Court then decides whether to grant unconditional leave to defend, conditional leave to defend with the conditions it may deem appropriate, or dismiss the leave to defend and pronounce the lawsuit. 

2. A challenge to the order issued in accordance with CPC Order 37 Rule 4 is not admissible under Order 43 Rule 1. As a result, the appeal is denied and the respondent’s initial objection is upheld. The appellant is free to look for a legal remedy if one is available. It is made clear that this Court has not addressed the arguments made by either party about the case’s merits.

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