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Court Diary: Name – Tushar Kukreja Enrollment Number – 00217703519 Semester and Section – V-K Course: (Integrated) B.B.A LL. B Name of the Advocate & Office Address: Adv Amit Minocha, Chamber No. 629,...

Court Diary: Name – Tushar Kukreja Enrollment Number – 00217703519 Semester and Section – V-K Course: (Integrated) B.B.A LL. B Name of the Advocate & Office Address: Adv Amit Minocha, Chamber No. 629, Dwarka Courts, New Delhi – 110075 Submitted for Subject Code: 351 GGSIP UNIVERSITY 1  INDEX S.No. Name of the case/Research Page No. 1. Hemlata Yadav vs Ashok Kumar Yadav 4 2. Ms. Neelam & Mr. Manjeet Singh 6 3. Kamlesh Kumar & Manju Tripathi & Ors 8 4. Ratan Lal Goel vs Aasheesh Kathuria 10 5. Seeking permission to place on record additional 12 documents 6. Cross-examination scope 14 7. Deprivation of actual or legal possession 17 2 INTRODUCTION I, Tushar Kukreja, a second-year law student at Vivekananda Institute of Professional Studies, interned under Mr. Amit Minocha at Dwarka Court for a period of 6 weeks. In the beginning of my internship, I was asked to attend the court proceedings through WebEx as due to COVID, the court proceedings were held online. I learned the very basic procedure of how about court proceedings are conducted. I was asked to translate the written statement from Hindi to Legal English. Mr. Minocha would also dictate the draft at times which was very helpful as I was able to understand the technicalities of the legal language and appreciate it. After the draft was given, Mr. Minocha gave valuable feedback and taught me the difference between English language and language of drafting a legal document. During my visits, I learned the process of filing a case and what are the stages of a case. I was asked to read the case files to get familiar with the legal documents and to get an understanding of the cases. I was further asked to research on precedents relating to the case and its applicability. While I used to read case files in the chamber, Mr. Minocha would explain the relevant legal provisions which facilitated me to have a better understanding of the case. I also attended Mediation proceedings as Mr. Minocha is a Mediator at Dwarka Court and observed the difference in the process of a court proceedings and a Mediation. I got the opportunity to go to Saket court which gave me a deep insight about the procedure of court. 3 Case 1 IN THE COURT OF CHIEF METROPOLITAN MAGISTRATE, DWARKA COURTS C C NO./ 2021 in the matter of: Hemlata Yadav Complainant / Aggrieved Person / Applicant Versus Ashok Kumar Yadav & Ors …Respondents APPLICATION UNDER SECTION 12 READ ALONG WITH SECTION 18, 19, 20, 22 & 23 OF THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 Facts of the case: The applicant (wife) had filed the complaint seeking justice as she had undergone harassment, mental and physical torture and domestic violence by the respondent (husband). The parties were engaged on 11th December 2019 and got married on 9th December 2020. Their marriage was delayed because of COVID-19. The parties were in touch with each other during the lockdown and used to talk frequently. During all these meeting, respondent played the emotional 4 card to build her trust and asked about all the personal details. Showing his male dominance, the respondent talked about the physical relations as they were now engaged. After the marriage, mother-in-law would taunt the complainant in front of everyone about not giving proper dowry articles and goods. Mother-in-law would also not give proper food to the complainant and would also abuse her. Complainant’s father-in-law would also physically abuse the complainant for not bringing enough money for the household expense. The complainant was compelled to buy fruits and vegetables from her own salary and in case the complainant purchased a little extra, she was taunted for wastage and if brought lesser, she was taunted for shortage, either was the complainant was mentally harassed and tortured by the in-laws. They would also embarrass the complainant’s father for not giving utensils and enough jewellery after the weeding. Thereafter an application was filed under section 12 read along with section 18, 19,20,22 & 23 of the Protection of Women from Domestic Violence Act, 2005. 27.08.2021 – Application was submitted in the court of Charu Dhankar – Metropolitan Magistrate. 04.09.2021 – Application was accepted by the court and 05.10.2021 was given for hearing the case. 5 Case 2 IN THE COURT OF PRINCIPAL JUDGE, FAMILY COURT DWARKA COURTS, NEW DELHI HMA NO. OF 2021 in the matter of: Ms. Neelam …Petitioner No. 1 And Mr. Manjeet Singh …Petitioner No. 2 P.S: Uttam Nagar PETITION FOR DISSOLUTION OF MARRIAGE BY DECREE OF DIVORCE BY MUTUAL CONSENT UNDER SECTION 13-B (2) OF THE HINDU MARRRIAGE ACT, 1955 AS AMENDED BY HINDU MARRIAGE LAWS (AMENDMENT) ACR NO. 78 OF 1976 Facts of the case: The marriage was solemnised according to the Hindu rites and ceremonies on 19.11.2018. Soon after the marriage, differences started to arose and it became undesirable for them to continue to live together as husband and wife and started living separately from each other from 30.06.2019 and decided 6 not to cohabitate as husband and wife. Both the parties had very different mindset and fundamental differences which made it impossible to live together. The parties entered in Agreement of Settlement before the Mediation Centre Dwarka at New Delhi. Subsequently, the first motion was instituted on 27.05.2021 and judgement was given on 31.05.2021. Petitioner no. 2/husband agreed to pay a sum of Rs. 6,00,000. Rs. 3,00,000 to be paid after recording of the first motion and remaining at the time of recording of second motion under section 13-B (2) of Hindu Marriage Act, 1955. He also agreed to handover the LIC policy of Rs. 10,00,000 at the time of recording of the first motion under Section 13-B (1) of HMA. Petitioner no. 1/wife agreed to withdraw her complainant in CAW Cell within a week of recording of statement of second motion petition under 13-B (1) of HMA. The parties had also agreed that no further proceedings of any nature either civil or criminal proceedings will be filed against each other and their families at any stage after the decree of divorce is passed by the Hon’ble Court. 05.08.2021 – In the mediation session, parties argued for the amount which was to be paid to petitioner no. 1/wife and also argued for the possession of gold. No conclusion was drawn from this session and next date was given. 12.08.2021 – The parties agreed on the sum and settled the disputed. This was the last session of the mediation and the closing statement was recorded. 03.09.2021 – Application was certified by the oath commissioner and submitted in the court. Case 3 7  MATTER BEFORE THE MEDIATION CENTRE, DWARKA COURTS, NEW DELHI in the matter of: Kamlesh Kumar …Plaintiff And Manju Tripathi & Ors …Defendants SUIT FOR SPECIFIC PERFORMANCE, DAMAGES AND PERMANENT INJUNCTION, REFERRED FOR E-MEDIATION Facts of the case: The parties had entered into an Agreement to sell on 22.09.2014 for the sale of property bearing plot no. F- 67, area measuring 167.22 sq. meters out of khasra no. 146/1, situated in the village Roshanpura, abadi known as Prem Nagar, Najafgarh, New Delhi for a total sale value of Rs. 55,00,000. Due to certain disputes between the parties, the Agreement to Sell was not executed between the plaintiff and the defendant. The suit property was mortgaged by the defendants to Bank of Baroda, Lodhi Road Branch, New Delhi and there was a loan outstanding against the suit property which has been repaid and there is nothing outstanding on the date towards the bank against the mortgage of the suit property. The plaintiff has already paid Rs. 24,00,000 at the time of the agreement and the balance of Rs. 31,00,000 was now also paid by the plaintiff to the defendant making the sale consideration of Rs. 55,00,000 received by the defendant. 09.08.2021 – Sh Amit Kumar Tanwar, Ld. Counsel for the plaintiff and Sh Arvind Gupta, Ld. Counsel for the defendants introduced themselves and the parties and 8 explained the suit to Mediator Amit Minocha. Agendas were set and an idea of the mediation process was developed. Defendant asked for the payment of Rs. 31,00,000 12.08.2021 – Mr. Arvind asked for the status of the payment to which Mr. Amit Kumar respond that the payment will be made in a day or two. Plaintiff was not present in this mediation session. 16.08.2021 – Parties had settled the matter. Final statement was also recorded and a period of 90 days from the execution of the present settlement was given to the defendants to execute the Agreement to Sell. It was also agreed that the plaintiff shall withdraw his present suit against the defendants within 15 days after execution. 9 Case 4 IN THE COURT OF MS. GOMATI MINOCHA, LD. ADJ, SOUTH WEST DISTRICT, DWARKA COURTS, DELHI CS/ADJ/710/2019 In the matter of: Ratan Lal Goel...Plaintiff Versus Aasheesh Kathuria...Defendants SUIT FOR DECLARATION TO THE EFFECT THAT THE AGREEMENT BE CANCELLED BEING NULL AND VOID AND SAME IS NOT BINDING UPON THE PLAINTIFF Facts of the case: Defendant had approached the plaintiff through google search for a business agreement. Defendant is an NRI and is doing business in Moscow, Russia. Defendant had searched the profile of the plaintiff from his website and contacted the plaintiff. Plaintiff’s business was of rice manufacturing and exporting. The parties entered into an agreement on 5.11.2018 where the terms and conditions were clearly stated which included that 20% of the total payment would be given in advance and the rest 80% when the goods are received. If the defendant cancels the order at any time, 20% will be forfeited. The agreement was also to be executed on or before 16.01.2019. The packing would be of the defendant in the name of his brand ‘Nytrico’ in the packages of 5kg rice. On 6.11.2018 estimated amount of Rs. 5,20,000 was sent 10 by the defendant which was required for making of the cylinder and bag cost Rs. 13.21+GST. On 22.11.2018 the production line was ready and defendant had only paid half of the manufacturing cost and the advance of 20% for the rice was also to be paid. On 18.12.2018 defendant said that his export licence is not yet issues and asked the plaintiff to export the goods under his licence in the name of M/s Rainbow Impex LIC Moscow, Russia. Plaintiff agreed to corporate and adjust with the defendant and signed the export documents. On 16.01.2019, plaintiff had mailed the defendant regarding the remaining balance and that the produce is ready and if the payment is not made in time, then he will sell the rice in open market. After multiple requests, defendant refused to collect the rice and plaintiff suffered a huge loss. Thereafter an application was filed for fraud and dishonour of contract. 09.08.2021 – A reply was filed by the defendant and an application under Order VII Rule 14(3) was also filed. Defendant alleged that the allegations in the written statement of the plaintiff are false and bogus and that the plaintiff has only pick up certain emails exchanges to mislead the court. An application was filed to place additional documents under Order IIV Rule 14(3). Next date of 22.10.2021 was given. I was asked to do research on placing additional documents in later stage of the case, I have attached the same below. 11 Research Work Topic 1 Topic of Research: SEEKING PERMISSION TO PLACE ON RECORD ADDITIONAL DOCUMENTS Work Assigned on: 09.08.2021 Till which date: 12.08.2021 Tools used in Research: SCC Online, Manupatra Information Research: In Kapil Kumar Sharma vs. Lalit Kumar Sharma (2013)14 SC 612, it has been categorically held by the Hon’ble Apex Court that no prejudice would be caused to the Defendants upon allowing of application under VII Rule 14 unless the cross-examination has started. Supreme Court in had set aside the judgement of Delhi High Court where the case was already in cross-examination and no additional document was allowed. After having heard the learned counsels, the Supreme Court could not agree with the Delhi High Court as it was informed that the cross-examination has not yet commenced. In the case of Union of India v Ibrahim Uddin (2012) 8 SCC148, it was said that of the application for taking additional evidence on record at the appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of the final hearing of the appeal at a stage when after appreciating the evidence on record the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non application of mind as whether such evidence is required to be taken on record to pronounce the judgment or 12 not, remains inexecutable and is liable to be ignored. No evidence is permissible to be taken on record in the absence of the pleadings. The court cannot travel beyond the bleedings as no party can lead the evidence on an issue not released in the pleadings and in case such evidence has been abducted or a finding of fact has been recorded by the court, it is just to be ignored. In the case of Y.N. Gupta v Jagdish Chander Sharma & Anr. 2010 (116) DRJ 737 it was stated that court before allowing the additional documents was to be satisfied not only about the relevancy of documents but also about the reasons as to why the documents could not be filed at the initial stage either along with the plaint or along with written statement. If the law remains uncertain, it becomes a hay day for the parties to twist the law and that is why it is necessary that the procedural aspects whenever and whenever they like. A document that is not filed at the appropriate stage shall not ne received by the Court is a principle that the Supreme Court emphasised in Madan Lal v Shyam Lal. This principle has been followed qua applications under Order VIII Rule 1A (3) by the Supreme Court in Aligarh Roller Flour Mills Pvt. Ltd. V Parvinder Khanna. But in the case of Dr. J.K. Jain v Krishnaram it was held that if the petitioner has provided sufficient and cogent reasons for allowing the documents to be filed, if the documents are necessary for providing justice and are absolutely necessary then the documents may be permitted even at a later stage. But if there has been no reference made in the court or in the written statement or at the time of listing of the documents then the court shall see no reason to allow filing of such documents at a belated stage when the court is not satisfied about the relevancy of these documents and the reasons for not filing the same with the written statement or before framing of the issues. 13 Conclusion A party cannot be allowed to put on record the additional document in answer to question put forward by the opposite party counsel, during the course of cross examination until and unless it is shown that the documents were not in the power and possession of the plaintiff and the same could not have been produced on record and that there is sufficient cause for non-production of the same. Topic 2 Topic of Research: CROSS-EXAMINATION SCOPE Work assigned on: 17.08.2021 Till which date: 20.08.2021 Tools used in Research: SCC Online, SCC Blog, Legal Service, Case mine Research: Order XVIII of the Civil Procedure Code, 1908 that is, hearing of the suit and hearing of witnesses provides for the provisions related to the order of examination and the right to begin. The witness can be examined-in-chief by way of the affidavit, thereafter he can be cross-examined and if the circumstances require and any aspect needs unambiguity then re-examination may be allowed. In the case of Harish Loyalka and Another vs Dileep Nevatia and Ors the evidence in chief shall be on par with the pleadings. It cannot be in the form of arguments or submissions while expanding the interpretation of Rule 1 and 2 of Order 18 of CPC. A repercussion of the above discussion would show that the basic rule is that the Plaintiff has to prove his claim by positive proof because 14 the Court has to see whether there is proof of claim or not before inquiring into the truth or otherwise of the defence. The provisions of Order 18 Rule 4 of the CPC require that the “examination in chief” shall be on affidavit. This means that the affidavit in lieu of examination in chief can contain, and contain only, such material as is properly admissible in examination in chief, in a manner no different than if the witness was in the witness box and his direct evidence was being taken by his advocate. An affidavit that contains arguments and submissions is neither an affidavit within the meaning of CPC Order 19, Rule 3, nor an affidavit in lieu of examination in chief within the meaning of CPC Order 18, Rule 4. In the case of Sarabjit Singh v Gurinder Singh the Delhi High Court had observed that the Evidence Act clearly lays down the scope of cross examination is much Why do as it permits, a party to cross examine the witness even regarding his character in order to impeach his credibility. Leading questions which are suggestive of answer can also be asked to the witness. Therefore. In such a contingency, where the scope of cross examination is much wider and gives better margin to the defendant, it cannot be permitted by a party who either fully or partially supports the case of the plaintiff to cross examine witness after the contesting party has done. If this is permitted to be done, then it will greatly prejudice the rights of the party who are contesting the claim of the plaintiff. In the case of C.T. Muniappan vs State of Madras AIR 1961 SC 175 it is argued that Sections 137 and 138 of the Indian Evidence Act do not contemplate any such further cross-examination of a prosecution witness. There can be no doubt that each accused is entitled in law to test the evidence given against him by a prosecution witness by cross-examination. Section 137 does not say that such cross examination has to be limited only to what has been stated by the prosecution witness in examination-in-chief. Indeed Section 138 15 mentions categorically that “the cross examination need not be confined to the facts to which the witness testified on his examination-in-chief” nor is there anything to justify the conclusion that once the right of cross-examination has been exercised after charge it cannot be exercised again. While it is true that Section 137 and Section 138 do not in words speak of a further round of cross- examination there is neither in these sections nor anywhere else in the Evidence Act anything to bar the accused from exercising his right of cross examination afresh if and when the prosecution witness makes a further statement of facts prejudicial to him. Conclusion Civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is unavoidable. In order to appreciate the evidence, the Court is required to bear in mind the set up and environment in which the crime is committed. The level of understanding of the witnesses. The over jealousness of some of near relations to ensure that everyone even remotely connected with the crime be also convicted. Everyone's different way of narration of same facts. These are only illustrative instances. Bearing in mind these broad principles, the evidence is required to be appreciated to find out what part out of the evidence represents the true and correct state of affairs. It is for the courts to separate the grain from the gibberish. 16 Topic 3 Topic of research: DEPRIVATION OF ACTUAL OR LEGAL POSSESSION Work assigned on: 6.09.2021 Till which date: 8.09.2021 Tools used in research: SCC Online, SCC Blog, Legal Service, Live Law Research: Section 6(1) of the Specific Relief Act,1963 clearly says that besides the person who has been dispossessed, any person claiming through him can also file a suit seeking recovery of possession. In the case of Sadashiv Shyama Sawant and others v Anita Anant Sawant (2010) 3 SCC 385, former had died and others had instituted a suit in his behalf. Section 6 provides that, a suit can be initiated for recovery of possession could be filed by the person who is dispossessed or any person claiming through him. The tenant having lost the possession though without his consent to third party, may not be interested in the recovery of possession. Or he may not like to involve himself into the litigations of court. In Halsbury’s Laws of England, physical and legal possession” is distinguished as – possession is a word of ambiguous meaning, and its legal sense do not coincide with popular sense. In English law, it may be treated not merely as physical condition protected by ownership, but as a right in itself. The word possession may mean effective, physical or manual control, occupation, evidenced by some outward act, sometimes called de facto possession or detention, as distinct from a legal right to possession. Possession may mean legal possession: that possession which is recognised and protected as such by law. The elements normally characteristic of legal possession are an intention of possessing together with that amount of occupation or control of the entire subject-matter of which it is practically 17 capable, and which is sufficient for practical purposes to exclude strangers from interfering. Thus, legal possession is ordinarily associated with de facto possession; but legal possession may exist without de facto possession, and de facto possession is not always regarded as possession in law. A person who, although having no de facto possession, is deemed to have possession in law is sometimes said to have constructive possession. In the case of Veeraswami Mudali and Ramamanenna the view of the Calcutta High Court that where the tenant was forcibly ejected from the land by the third party, it may reasonably be held that landlord has also been dispossessed is the correct view. The court found itself in agreement with the view of the Bombay, Patna, Pepsu and Rajasthan High Courts and hold, as it must be, that there is nothing in Section 6 of the Act to bar a landlord from suing a trespasser in possession even when, at the date of dispossession, the property is in actual occupation of a tenant entitled to possession. Conclusion A transfer of property is defined as an act by which a living person passes particular property to one or more other living persons, whether now or in the future. A living person can be a firm, an association, or even a group of people. The definition of property has also been defined in the said act, and this is done by broadening the definition of property to include both tangible – which includes material things like houses and land – and intangible – which includes certain rights pertaining to property that cannot be exercised over materials, such as the right to repayment of a debt. 18