Defection is known as an act by a legislator (MP or an MLA) which defies the political party’s (The party to which the legislator is a member) ideology or whip issued from time to time. Some recent examples include the notices which were sent to Rajasthan Deputy CM Sachin Pilot along with 18 other dissident MLAs. These notices were seeking their disqualification on the ground of defying the party’s whip as they had not attended two legislature meetings. 

What does the Law in India say about Defection?

Due to these acts of defying political parties' whips, there was a need of bringing in legislation to curtail the same. Thereafter, the provision pertaining to Anti-Defection was inserted into the Constitution through 52nd Amendment Act in 1985. The tenth schedule (hereinafter referred as “schedule”) of the Constitution of India is also known as the “Anti-Defection Act”. 

Disqualification of a Member

Paragraph 2 Sub Para 1 of the schedule talks about what shall constitute Defection. It also specifies the grounds of Disqualification on grounds of Defection. It states that a member of the House shall be disqualified:

⦁ If he has voluntarily given up his membership of such political party.

⦁ If he votes or abstains from voting contrary to any decision/direction of the political party to which he belongs or without obtaining any prior permission from the party or from any person authorized to do so on the party’s behalf.

The word “Disqualification” is defined in Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly, (2020) 2 SCC 595, which states that, “The dictionary meaning of the word “disqualification” is “to officially stop someone from being in a competition or doing something because they are not suitable, or they have done something wrong”. However, under the Tenth Schedule this term occupies a specific meaning wherein, a Member is stopped from continuing to be a Member of a legislative body, if his actions fall in one of the conditions provided under Para 2.”

The burden of proof under Para 2, as held in Ravi S. Naik v. Union of India, 1994 Supp (2) SCC 641, is always on the person who is claiming that a member has incurred the disqualification. In this regard, it has been held that “The burden to prove the requirements of paragraph 2 is on the person who claims that a member has incurred the disqualification and the burden to prove the requirements of paragraph 3 is on the member who claims that there has been a split in his original political party and by virtue of said split the disqualification under paragraph 2 is not attracted”.

Paragraph 2 Sub Para 2, talks about an independent member belonging to a political party elected to the house who has been elected other than a candidate set up by a political party. In the case of D. Sudhakar (2) v. D.N. Jeevaraju, (2012) 2 SCC 708,  it was held that, “It is no doubt true that an Independent legislator does not always have to express his intention to join a party in writing, but the mere extension of support to Shri Yeddyurappa and the decision to join his Cabinet, in our view, were not sufficient to conclude that the appellants had decided to join and/or had actually joined the Bharatiya Janata Party, particularly on account of the subsequent conduct in which they were treated differently from the members of the Bharatiya Janata Party. In view of our finding that the appellants had not joined any political party as alleged, the order of disqualification passed by the Speaker was against the constitutional mandate in Para 2(2) of the Tenth Schedule of the Constitution.”

Exceptions to Disqualifications

However, it is pertinent to mention that there are exceptions to the grounds that are mentioned in Para 2 of the Schedule. The exceptions are enshrined under Paragraph 4 of the schedule which states that, the grounds mentioned in Para 2 shall not apply where the person’s political party merges with another political party with certain conditions:

⦁ With the merger, he and other members of the party claim to have become the members of the new party so formed.

⦁ The merger has not been accepted by the individual or any other member who further chose to operate as a separate group.

The merger mentioned under this Para shall only be acceptable so as to not come under the purview of disqualification when not less than 2/3rd’s of the members have agreed to the same. 

Exemptions from Disqualification

Also under Paragraph 5, the Speaker/Deputy Speaker of the House of People, or the Deputy Chairman of the Council of States or the Chairman/Deputy Chairman of the Legislative Council or the Speaker/Deputy Speaker of the Legislative Assembly, is exempted from Disqualification under this section if they:

a. Voluntarily give up membership of a political party before the election to their office and continue to remain so till the end of their tenure

b. Giving up the member of the political party immediately before the election to office and re-joins that party after he ceases to hold such office. 

Decision making powers pertaining to disqualification

In case a question arises pertaining to disqualification on the grounds of defection of a member of any political party, such decision is referred to the Chairman or the Speaker of such, as the case may be. Paragraph 6 of this schedule says that the decision in this regard shall be final. However, there might arise a situation wherein the question may arise against the Chairman or the Speaker, in that situation the decision making power shall vest with an elected member that the house shall elect specifically on this behalf. The proceedings under this Paragraph shall be considered as Proceedings in Parliament (Article 122) or Proceedings in Legislature of the State (Article 212). Scope of Powers of the Chairman or the Speaker in deciding matters under Para 6 is limited, it is only to be seen as to whether the member in question has to be disqualified or not, nothing more or nothing less. Also, the Disqualification cannot be subject to any conditions. The same has been held in Shrimant Balasaheb Patil v. Karnataka Legislative Assembly (Supra) that “We are unable to agree with the contention of the learned Senior Counsel, Mr Kapil Sibal, that the power of the Speaker to bar a disqualified Member from contesting re-election is inherent to his role and is required to be read into the Constitution to prevent the Speaker from becoming toothless. When the express provisions of the Constitution provide for a specific eventuality, it is not appropriate to read an “inherent” power to confer additional penal consequences. To do so, and accept the contention of the respondents, would be against the express provisions of the Constitution.”

Bar on Jurisdiction of Courts

Paragraph 7 of this specifically but bar on the jurisdiction of the courts of law in respect of any matter concerned with Disqualification under this Schedule. In Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651, the Hon’ble Supreme Court has held  “The ouster of jurisdiction of courts under Paragraph 7 was incidental to and to lend strength to the main purpose which was to curb the evil of defection. It cannot be said that the constituent body would not have enacted the other provisions in the Tenth Schedule if it had known that Paragraph 7 was not valid. Nor can it be said that the rest of the provisions of the Tenth Schedule cannot stand on their own even if Paragraph 7 is found to be unconstitutional. The provisions of Paragraph 7 can, therefore, be held to be severable from the rest of the provisions.”. Therefore, lifting the bar which was put by Para 7 in terms of courts not allowed to entertain any dispute pertaining to disqualification under this Schedule. This decision was taken in the background of Keshavananda Bharati and Others v. The State of Kerala and Another AIR 2007 SC 1305 which has held that judicial review is considered to be a part of the basic structure of the Constitution and it cannot be interfered with. The aspect of Kihoto Hollohan has been re-iterated several times in various legislations such as Jagjit Singh v. State of Haryana, (2006) 11 SCC 1. 

Conclusion

Due to internal disagreements with senior leaders' stances or the quest for power, rivalry among party members can develop for a variety of causes. As a result, defections happen. Because a democracy requires a stable government by its very nature, this might destroy the democratic ethos of any country. Regular government crises can breed mistrust among the people and pose a threat to stability and harmony. However, there has to be a fine balance between imposition of penalties on the elected representatives of the house and freedom of speech and expression. 

In this case, the Allottees booked a commercial unit in Phase 1 of the project "The Cityscape", being developed by the Promoter, Capital Skyscraper Private Limited. This Unit was booked by the Allottees through the broker, Golden Bricks Worldwide LLP. Here, it was contended that the Promoter who was under an obligation to deliver the possession of the Unit by June 2017, did not even start the construction by January 2017. Changes in the building plan were contended without showing the revised plan.

Under the facts and circumstances, the Ld. Authority was of the view that the rate of interest charged from the allottees and the promoters in case of default on their parts shall be equal for both, instead of the arbitrary interest charge levied by the Builder. The Authority also granted the delay possession interest to the Allottees from the due date of possession till the actual offer of possession. The Promoter was directed to demand the due payments from the Allottees as per the actual stage of construction and as per the revised rates, after providing a copy of the revised building plans to the Allottees. The Authority also granted leave to the Allottees to file a separate Complaint against the Promoter for initiating the penal proceedings against them. This judgment is an example that the RERA has been fulfilling its objective to protect the interest of the homebuyers by providing speedy and effective remedies to the innocent allottees against the malafide practices of the promoters.

Rights and Duties of Seller and Buyer

Most of the property cases are between family members, leading to the diffusion of the joint family into a nuclear one. Therefore, it becomes necessary to have clear views regarding the provisions of the transfer of property in India. The property transferred by way of succession, legacy or in contemplation of death is subject to respective personal laws or sections under the Indian Succession Act 1925 apply over them.

Section 54 of the Transfer of Property Act, 1982 define sale as; 

The "Sale" is the transfer of ownership in exchange for the price paid or promised or partly paid or part promised. ‘           

1.      Parties to sale

2.      The subject matter of sale

3.      Consideration

4.      Mode of execution of the sale

Parties to sale

There should be a transferor (seller) and transferee (buyer) for the sale of property, and the transferor should be a person who is competent to enter into a contract. In the case of BiswanathSahu vs Tribeni Mohan, the court stated that a transferor could either be the property owner or should have the authority to dispose of such property. For example, 'karta' have the authority to dispose of the property under specific circumstances.​Similarly, the guardian​of the minor person can sell the property only by court's permission.

A transferee should be a person who is competent to take possession of the property and not legally disqualified (insolvent). A minor can be the transferee, and therefore transaction of the sale is valid. 

The subject matter of sale

The sale of property given under this act deals only with the immovable property, and that immovable property can be tangible (which can be touched and felt) or intangible (right of easement) in nature. Further, the owner made an express statement to convey his right to transferee for the property, which can be sufficiently identified.

Consideration

The consideration for having a valid sale is that there must be money in exchange for ownership, and nothing other than money can be considered for a valid sale. Time is irrelevant in relation to consideration which means that money can be paid before, at the time or in subsequent completion of sale.

Mode of execution of the sale

For the execution of a valid sale deed, there should be a fulfilment of three essentialrequirements; sale deed by transferor should be in writing, it should be properly attested andregistered for any immovable property, but these requirements are not compulsory for theproperty which have nominal value or value less than rupees 100. In comparison, the propertywhose value is less than 100 rupees can be done by a simple transfer of property.In the case of​Meghan Enterprises Private Limited v. Official Liquidator, the​​court held that the sale of​ the property being auctioned by the court does not require the above three essentials, and the certificate of sale by the court is enough for that sale only.       

A contract of sale is only a contract over an immovable property by executing terms settled by the parties for the sale of the property. It doesn't create any right of possession and charge over the property. It is merely a document that further provides the sale of deed.

But the sale of contract gives some rights to the transferee as, after the contract of sale, the transferor cannot sell the property to another person, and for the same, he can be sued by the transferee.

The distinction between a sale and a contract of sale

1.      A transfer of ownership occurs when an immovable property is sold under the TPA. A contract for the sale of immovable property is nothing more than an agreement that the property will be sold in the future on terms agreed upon by the parties.

2.      A TPA sale creates a right in rem. A contract for sale makes a right in personam.

Buyer and seller's rights and responsibilities:

In the absence of a contract to the contrary,the buyer and seller of immovable property are subject to the responsibilities and have the rights outlined in the regulations that follow (or those that apply to the property sold).

The seller is required to:

 (a) disclose to the buyer any material defect in the property or the seller's title thereto of which the seller is aware, but the buyer is not, and which the buyer could not discover with ordinary care, and  disclose to the buyer any material defect in the property or the seller's title thereto of which the seller is aware, but the buyer is not;

(b) must deliver all title papers related to the property in the seller's custody or control to the buyer upon his request for scrutiny;

(c) must respond to any relevant inquiries posed by the buyer about the property or the title to it to the best of his knowledge;

(d) execute a valid conveyance of the property when the buyer offers it to him for execution at an appropriate time and place upon payment or tender of the amount payable in respect of the price;

(e) to take as much care of the property and any title papers pertaining to it that are in his control between the date of the contract of sale and the delivery of the property as an owner of ordinary prudence would take of such property and documents;

Transfer of property is a transfer of all the rights and liabilities of the property to the buyer. But a contract of sale only shows a willingness to transfer the property,whereasa sale is an actual transfer of property. Civil law revolves around the concept of property. It is governed by the Civil Procedure Code and the Transfer of Property Act. Both attorneys and the general public need to be aware of the specifics of property transactions and transfers.

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Introduction

RTI is the abbreviation for the "Right to Information." Freedom of speech and expression is a fundamental right guaranteed by Article 19(1) of the Indian Constitution, and it includes the right to information. Through the passage of the Right to Information Act, 2005, by the Parliament, the Right to Information has become a statutory right. This Act is frequently referred to as revolutionary because it grants the common man the right to ask any government agency for information. This Act also requires prompt responses to citizen requests for government information.

The following are the rights granted by the RTI Act:

a)      Seek any information held by a public authority.

b)      Obtain copies of official documents.

c)      Examine government works, documents, and records.

d)      Notes, extracts, or certified copies of government documents or records should be made.

e)      Take official government work samples.

f)       Obtain information on diskettes, floppies, tapes, video cassettes, or any other electronic medium, or through printouts of information stored in a computer or other device.

RTI's Aim

The aim of making the Right to Information a statutory right is to ensure citizens' access to information under the control of public authorities. The primary aim of the Right to Information Act is to empower citizens, promote transparency and accountability in government operations, combat corruption, and ensure that our democracy functions properly. An informed citizen is best prepared to keep a required vigil on the instruments of governance and hold them accountable to the governed. The Act is an initiative aimed at informing citizens about the activities of the state and all public authorities under it.

What types of information can be obtained through RTI?

According to Section 2(f) of the RTI Act, 2005, "information" refers to material in any form, including records, documents, memos, e-mails, opinions, advice, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form, and information relating to any private body that a public authority can access under any other law in force at the time.

How to Submit an RTI Offline?

The Act proposes a simple and direct method for gathering information. Some public establishments, however, have their distinct formats; there is no requirement to adhere to the prescribed setup.

a)      Categorize the constituent part from which applicants want information because some issues are handled by state governments, others by local authorities such as municipal administrations/panchayats, and others by the Central government.

b)      The application can be submitted by hand or typed in English, Hindi, or the area's official language. One can also seek the assistance of a public information officer to write the application.

c)      Address the application to the State/Central Public Information Officer. Give the name of the office where applicants want to get information, as well as the complete, exact address.

d)      Mention the request in the appropriate form and specify the period/year in which the application falls. The applicant must pay Rs. 2 per page to obtain the documents.

e)      Cash, demand drafts, money order, or court fee stamp of Rs 10 is required to plead the request. The application must be stamped. Applicants living below the poverty line (BPL) are exempt from making any payment if they include a copy of their BPL certificate with their application.

f)       Applicants must sign the application properly and include their full name, address, phone number, and email address.

g)      Send the application to the appropriate department via postal mail or deliver it personally.

h)      The information must be provided within 30 days, according to the law. One may submit an appeal if this does not take place. The department's name and address should be mentioned in the first appeal, which should be addressed to "The Appellate Authority." As soon as the appeal is received, the appellate authority has 30 days to respond. If the appellate authority is unable to do so, the Information Commission, the Chief Information Commissioner, and State/Central Information Commission are the appropriate parties to appeal to.

How to submit an RTI online?

The Central Government and a few State Governments each have their websites where RTI requests can be submitted. The applicant has the choice of submitting the RTI in one of the States that offers the online facility. However, there are some problems with the online RTI filing services provided by the State Governments as some of the websites are not functioning properly. As a result, until the State governments' websites or portals operate as efficiently as those managed by the Central Government, an applicant's only choice is to submit an RTI offline when dealing with their departments.

Visit the website www.rtionline.gov.in to submit an RTI request online to any Central Government department.

a)      According to the website, Indian citizens can use it to submit RTI applications online and make RTI application payments online.

b)      Click "Submit Request" when the website opens to bring up a page where the applicant must enter the necessary information.

c)      The fields with an asterisk (*) are required; all other fields are optional.

d)      The application's text should be written in the designated column, and you should read the note that is located immediately above that column. Applicants might not be able to submit the application if the characters are not used in accordance with the guidelines.

e)      There is a 3000-character limit on the text of an application submitted in the designated column.

f)       If an application has more than 3000 characters, it can be uploaded as an attachment using the provided column.

g)      Decide which department or ministry you want to submit the RTI application to.

h)      Then enter the other contact information that is required.

i)       The applicant must click "Make Payment" to pay the required fee after completing the first page.

j)       The following methods of payment are available online: SBI Internet banking; Master/Visa or Master/Debit card use; Rupay Card use.

·         The fee for filing an application is set by the RTI Rules, 2012.

·         The application is submitted after the required fee is paid.

·         An applicant who is below the poverty line must attach a copy of their "BPL" certificate and pay no fee.

·         After submitting the application, a unique registration number will be assigned to the applicant for future reference.

·         The application filed through the Web Portal would be electronically transmitted to the "Nodal Officer" of the concerned Ministry/Department, who would then electronically transmit the RTI application to the concerned CPIO, or Central Public Information Officer.

·         If an additional fee is required to provide the requested information, the CPIO will notify the applicant via this portal. The applicant can view this notification via the Status Report or his/her e-mail alert.

Appeals

In the event that the applicant does not receive the requested information or is dissatisfied with the information received, he or she may file an appeal with the First Appellate Authority, as provided for in Section 19(1) of the RTI Act. If no information is provided within the prescribed time limit, the first appeal must be filed within 30 days of receipt of the information or within 60 days of filing the RTI application. Furthermore, suppose applicants do not receive information despite filing the first appeal or being dissatisfied with the First Appellate Authority's order. In that case, applicants may file a second appeal.

Conclusion

The Right to Information Act of 2005 is an effective initiative for increasing transparency and accountability in government offices. These public authorities are scrutinized by the public through RTI, and citizens learn more about the government's system by having access to information under the RTI Act. It holds the government accountable and aids in the containment of rampant corruption in public officials' offices. Corruption is a threat to society's well-being; it must be eliminated. Thus, RTI is a powerful tool for citizens to obtain information about how government departments work, where funds are spent, and how taxes are paid, among other things. However, there is still a long way to go because state online portals must function properly to facilitate this service.

Basis for Award of Compensation in Motor Vehicle Accident Cases

Under the Motor Vehicles Act of 1988, an individual injured in a car accident or the legal representatives of an individual killed in a car accident may claim damages. It is a law made to prevent motor vehicle accidents and compensate victims and punish guilty parties in the event of an accident.There is no time constraint for submitting the claim application. However, trying to claim compensation after a long unusual duration may cause the Tribunal to have reservations. Consequently, while there is no time limit for submitting a compensation claim, it should be completed as quickly as possible.

The Motor Accident Claim Tribunal was formed to adjudicate disputes under the Motor Vehicles Act of 1988. The Claims Tribunal's primary objective is to ensure that cases are tried speedily and that justice is done. The claimant should submit their claim on time. According to Section 173, Claims Tribunal appeals will be heard in the High Courts. Appeals must have been lodged within 90 days of the date of the judgment. If the claimant is late in submitting his appeal, he must provide a plausible reason for the latency. The appeal will be heard if the Court approves it. The appeal will be rejected if the amount in conflict is less than Rs10,000/-.The Motor Accident Claim Tribunal supervises cases involving death, property damage, or personal injury. Claims can be submitted to the appropriate Claims Tribunal. High courts from various states oversee these Tribunals.

Penalties and offences there under the Act of 1988 According to Section 181 of the act, if a person drives a vehicle without a license or before having reached the age of majority, he may be penalized up to Rs 5000/- or imprisoned for up to three months, or both.

The Claims Tribunal may grant claims to the claimant in the following situations according to Section 165(1) of the Motor Vehicles Act, 1988:

●       When an individual dies or is injured as a result of an accident

●       When a third party's property is destroyed as a result of the accident

●       When such accidents occur as a consequence of driving a car

The Supreme Court established guidelines in National Insurance Company Limited v. Pranay Sethi for determining the amount of compensation awarded by the offender to accident victims who are self-employed, have a regular wage, or have a fixed salary. The Court believes that "just compensation" should be based on reasonableness, fairness, and equity.

The following parameters were implemented in response to the decision in Sarla Verma v. Delhi Transport Corporation :

●       If the dead had a secure job and were between the ages of 40 and 50, 50% of his annual pay would be added.

●       If the person who died were over 50, there would be no inclusion.

●       If the dead person had a fixed salary or was self-employed at the time of his death, his income was to be considered.

This evaluation of compensation in the event of a car accident death was later discussed in Pranay Sethi's case. The Court determined that only giving an addition to the deceased who had a permanent job was inappropriate. It should be stretched to others as well. "To have the perspective that he (self-employed person) is likely to remain stationary and his income to remain constant is contrary to the basic concept of human behaviour," the Court stated. Furthermore, the Court stated that there is a lack of uniformity when Claim Tribunals use different evaluation methods. As an outcome, when assessing compensation, it is desirable to implement the "principle of standardization," which was used in this case to evaluate the foreseeable prospects of victims killed in car accidents. A new group was also established for those who died while self-employed or on a regular salary.

The individual who files the claim petition must show that the respondent was negligent. It is crucial to prove that he is lawfully accountable for his actions and is at fault for them. Because there is no precise definition of negligence for the reasons of such a proceeding, it would usually mean a violation of obligation caused by an omission directed by a rational man on some grounds that he would normally do or be bound by law to do because of the behaviour of the public interests, or through doing things that a reasonable or considerate man would not do.

The Supreme Court specifies "rashness" as "risking a dangerous or recklessness act with the knowledge that it is dangerous and may cause serious harm." The hazard of committing such conduct with carelessness or indifference to the implications is criminal in such a case." The Supreme Court defined 'negligence' as "the inability to do something with reasonable and responsible means conferred by the considerations that ordinarily regulate human affairs, or doing something that reasonable and prudent means guided by similar considerations would not do."

The issue emerges because payment is to be made in the event of a child's death, even though the child earns nothing and may study. As an outcome, parents cannot be expected to rely solely on their children in such issues. Nonetheless, the parents will endure the loss of their child and receive to be paid fairly for it. The Supreme Court ruled in R.K. Malik v Kiran Paul that claims for the child's future prospects should be permitted in addition to financial damages. In the case of Lata Wadhwa v. State of Bihar, where the accident occurred on March 3, 1989, and many people, including children, were killed in a crash, the Court awarded significant claims.

The Court categorically stated that the children who died were all attending an expensive college or school, had excellent prospects, and came from upper-middle-class families; however, the higher claims awarded cannot be said to be for the adversity of life and the misery and grief endured as a result of the destruction of life as a result of financial state. To receive acceptance for its use, the multiplier method was noted.In the case of children aged 5 to 10, the Court ruled that "a sum of Rs.1.50 lakhs was awarded towards pecuniary compensation and a sum of Rs.50,000/- was awarded towards 'conventional compensation." Compensation of Rs.4.10 lakhs was awarded in the case of children aged 10 to 18 years, including "conventional compensation."

Legislation is passed to help the general public. The Motor Vehicles Act of 1988 was passed to prevent accidents; it is an important law that must be adequately enforced. As a result, the government and the general public must work to see it through. Every person must ensure that he does not infringe its provisions because an accident results from an individual's behaviour.

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Importance of Court Summons and Notices

The steps to be followed whenever you receive a summon from the Indian courts-

1. Look through the summon attentively and understand if you need an answer or other action. In many cases, it is suggested that an answer be sent to the other party. An advocate can help you reach that decision.

2. Consult an advocate and present all the information you have regarding the issue; he will draft a response for you and send the summon on your behalf.

3. Depending on your answer, the other party can take the matter to the Indian court or do a settlement outside the Indian court; in both cases, ensure the advocate you consulted is well informed about the matter.

It is always advisable to answer a summon so that you may clear your side of the matter or dispute. Kindly seek an advocate’s advice, and you should avoid answering such summon on your own because it might have repercussions in the future. Summon is sort of a warning to whom it is sent. It is the summon to the person, i.e., making someone aware of the things he might not be aware of. It states a wrong/mistake one may have committed and the legal penalty/amount you would be subjected to if the sender of the summons resorts to litigation. Before relying on or taking action against the summon, it is always advisable to consult an advocate. If you have an Indian court summons, say to testify, yes. You had better respond, or the Indian court could issue a warrant.

The summon should be replied to within the stipulated time, and if not replied to within the stipulated time, it can prove to be beneficial to the addressee. After receiving the summon, the following points must be kept in mind:

Attentively look troughing the summon– It is important to properly look through the summon to understand the issue and concerns that the other party raises. If the receiver of the summon feels that the concerns raised in the summoning could be resolved amicably, then immediately, a conversation should be initiated.

Contacting the Advocate– If the contents of the summon are unclear, then a profound advocate must be contacted who can further legal action. Also, the receiver should keep a record of the time of receiving the summon, which will be advantageous even if the matter is taken to the Indian court by the opposite party.

Briefing the advocate– This step must be done attentively, and the matter must be escalated to the appointed advocate. The advocate must be provided with all the necessary information about the facts, time, place, events, etc., that are related to the issue. This helps the advocate draft a proper answer representing the receiver’s side of an argument.

Sending the answer– The answer summons are sent either through a registered summon or courier once the advocate drafts the answer summon on your behalf. The advocate keeps a copy of the answer summons for future reference.

If the person to whom the summon is sent doesn’t respond to it in a stipulated time, then the aggrieved party files a suit in the appropriate Indian court of Law. Once the suit is filed in the Indian court, the order will be sent to the respondent by the Indian court to appear before the Indian court and answer the charges which are against them by the respondent.

Advantages of a summon

·         Warning– A summons acts as a warning against the offender as it ensures that the offender is aware of the duties that must be performed by him or otherwise face the consequences of non-compliance.

·         Resolution of dispute– A fair chance is given to both parties to resolve their dispute, which can be through negotiation, mediation, or arbitration without dragging the matter before the Indian court.

·         Amicable settlement– The litigation process is money and time-consuming; thus, it is preferable to directly settle the matter via the summon, which is a much easier and quicker process.

Summon must mention the following points

1.Name and address of the parties– The summon must mention the name and address of the party to whom the summon has to be sent.

2.Facts and grievances– The facts and grievances caused to the sender must be mentioned in the summon sent by the sender in paragraphs and points.

3.Compensation– After stating the facts, the summon must mention the amount of compensation claimed for the inconvenience caused. Sometimes the summon mentions an alternative mode of redressing the dispute. It is compulsory to bring up the laws under which the compensation has to be claimed.

4.Signature– At the end of the summon, there should be a signature and stamp of the advocate who sends the summon on behalf of the client.

The procedure of sending a summon-

1.You can either draft a summon yourself, or you can take the advocate’s assistance. Though, it is advisable to engage a qualified advocate, as one should be extremely cautious with the language used and the choice of words. While drafting a summon, you should be cautious of using any fact that might later work against you in the Indian court. Once a summon is sent, it cannot be changed, and if you use any contradictory statement in the Indian court, then it might weaken your case.

2.The summon must be addressed to the person you have grievances against.

3.A summon must be sent on plain paper or on the letterhead of an advocate.

4.You must categorically mention in the summon the time period in which the addressee must respond to the summon. The time period can be 30 to 60 days. The time period must be stipulated within which the other party is expected to fulfil the demands.

5.The summon should be signed by the advocate as well as the sender.

6.The summon must be sent either through a registered post or courier. It is usually advised to ensure that the acknowledgement is retained.

Mistakes to be avoided while answering to a summon

1.Time: The most common mistake is not answering a summon on time. The sender should try to answer the summon as soon as possible and within the stipulated time as mentioned in the sender’s summon. Or else, the person who is sending can take the harsh acts.

2.Answer: The mistake the party makes is that they do not answer in a proper and prescribed manner. The summon should be properly replied to; if the party is unable to understand the terms of the summon, a professional advocate should be consulted.

3.Sections: The mistake that is made is that the party forgets to mention the sections under which it is sending the summon. The party must be aware of the relevant sections under which it is sending the summon.

4.Date: The people forget to mention the date in the summon. It is very important to mention a date in the summon.

5.Sign: If the party consults an advocate, then it should not forget that both the party’s and an advocate’s signature is required.

6.Address: The present address of the sender should be mentioned so that it reaches the proper person at the proper time. Bringing slowdown may take action against the party later.

7.Contact: The sender’s present working phone number should be addressed.

1.The first thing to do after receiving a summon is to call the sender of the summon with the aim of resolving the dispute amicably.

2.Though it is not mandatory to answer a summon,it is still advisable to send an appropriate answer to the summon.

3.If case one fails to send an answer to a summon, the other party may use that as an advantage, and while drafting the petition, they may blame for not adhering to the requirements of the summon, for which reason the case has been filed.

4.If, in one’s opinion, the facts that have been stated in a summon are not true, and he needs to contest a summon. He can take consultation from an experienced advocate, seek his assistance, and draft a proper answer to the summon, denying the contents stated in the summoning. The summon must be sent via registered post or courier.

5.While sending an answer to the summon, check whether the claim in the summon is time-barred or not. If the claim is time-barred, then one should only answer that the claim is not within the limitation period.

Receiving a summons is the most important stage before a legal suit since it may influence a decision. Hence, although it is not an order of the court it is vital that one responds to a summons.

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INTRODUCTION:

Marriage is a eight-letter word that by itself forges a bond between two people and their families. But in Hindu marriages, divorce was completely unheard of until 1955. The traditional view holds that marriage is not only a relationship or a bond that lasts for the present world but also a bond that endures forever. As a result, the importance of remaining together was so ingrained in Hindu society that being divorced brought with it stigma and prejudice. Divorce was a common practice in Hindu communities, especially in the so-called lower social strata. Even so, the Hindu Marriage Act was taken into consideration due to the shifting needs of society, and ultimately the divorce provision also found a place in the Hindu Marriage Act.

Marriage is an institution in which two individuals commit to each other and work for their mutual well-being; as a result, families are raised and an inseparable attachment is formed. Human beings are unpredictable, so when the concept of marriage exists, does the concept of divorce.

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CONCEPT OF DIVORCE:

The term "divorce" had not been defined by statute, but it could be defined as a legal dissolution of judicial ties established during marriages. Thus, divorce can be viewed as a way to end a marriage that occurs not only between two individuals but also between two families. There are two kinds of divorce: mutual divorce and contested divorce. In this article, we will go over the differences between these two kinds of divorce.

CONTESTED DIVORCE

A contested divorce is one in which both parties do not agree on the same issue. At the heart of such divorce cases must be an underlying dispute in the marriage. The parties are also generally unable to agree on divorce-related issues, i.e. one wants to divorce while the other does not, and thus the court must intervene in the family's personal affairs to either try and reach an amicable happy ending or examine both sides and ultimately rule that there can be no reconciliation and grant the divorce.

GROUNDS FOR A CONTESTED DIVORCE:

A contested divorce is solely based on the grounds accessible to the parties of a marriage, and they must prove at least one of these grounds in court. These grounds are mainly the requirements that must be met in their entirety. These are the grounds:

a)      Adultery: If one of the spouses engages in voluntary sexual intercourse with another married or unmarried person, this is grounds for divorce. This is the loyal spouse's right, and he or she may file for divorce at any time. This is recognized as a ground for divorce in all religious laws governing marriage and divorce. The alleged infidelity does not have to be in effect when one spouse files for divorce. The essential principle for contesting divorce on this ground is that the spouse alleging the affair must prove the affair.

b)      Cruelty: In the context of the Hindu Marriage Act of 1955, cruelty was not listed as a ground for divorce, but this changed after the Act was amended in 1976. However, no legal regime has precisely defined the term "cruelty," and it is interpreted differently depending on the context, such as physical or mental, subjective or relative, intentional or unintentional, direct or indirect.

c)      Desertion: Another prevalent ground for divorce recognized by all divorce laws in the country is desertion. It essentially refers to the abandonment or forsaking of one spouse for no apparent reason or against the wishes of the other spouse. Desertion has two components, ii) factum detachment ii) Animus deserendi Furthermore, Section 13(1)(ib) of the Hindu Marriage Act, 1955 stated that such desertion must be without any reasonable cause or the consent of the spouse filing for divorce, and must last for a continuous period of two years.

d)     Conversion: The conversion of one spouse to a different religion is a valid reason for divorce. Although it is not recognized as a ground in the Dissolution of Muslim Marriage Act of 1939 and the Special Marriage Act of 1954, it is recognized in other divorce laws. Section 13(1)(ii) of the Hindu Marriage Act of 1955 governs conversion as a divorce ground in Hindus. When construing this ground, make sure that consent for such conversion does not become a defense in granting a divorce.

e)      Grave Mental Disorder: According to the Hindu Marriage Act, mental disorder is grounds for divorce. However, such disorder or unsoundness must be severe and incurable in nature. Initially, the judgments of the courts based on this ground were based on the discretion of judges case by case, but later on, the judgments of the English Courts laid down proper tests for analyzing the effect of this ground.

f)       Communicable Venereal Diseases: Venereal diseases are those that can be transmitted through sexual contact between two individuals, one of whom is already infected with the disease. Section 13(1)(V) of the Hindu Marriage Act, 1955, deals with this ground, and prior to 1976, it stipulated a three-year period for such disease to exist immediately before filing the petition. However, the legislature believed that imposing the time period would only violate the rights of another spouse, potentially exposing them to the communicable disease. As a result, the 1976 amendment introduced a new approach to this ground of divorce. This ground is a common reason for getting a divorce. However, because the goal of this ground is to keep the other spouse from becoming infected with such a disease, it also acts as a deterrent even before the marriage.

HOW TO FILE FOR A CONTESTED DIVORCE:

a)      Filing a divorce petition

When the spouse seeking divorce approaches his or her attorney, all necessary documents and information must be provided. An advocate will draft a divorce petition and file it in court after reviewing all of the information. In divorce cases, the family court institutions have primary jurisdiction. Following the filing of a petition, the other spouse is served with notices, either by the party himself/herself or by the court upon payment of charges.

b)      Appearance and Reconciliation

The parties appear in court after the notices have been served. If the court believes there is a possibility of conciliation between the parties, it refers the case to the Legal Services Authority, where the conciliators are present. They explore the possibility of settlement and act accordingly. If it is resolved, the petition is withdrawn from court; otherwise, the stages listed below are followed.

c)      Respondent spouse's response/counter-response

The respondent files a counter at this point. Because he or she is opposed to the divorce being granted, they must deny every allegation made in the petition. The denial in this case must be specific and cannot be an overall denial of allegations. If every allegation about a fact is not specifically denied, it will be interpreted as admitting such allegations. As a result, the respondent must take sufficient care to examine all of the denials made in the counter or enlist the assistance of others to scrutinize the response.

d)     Discovery

At this point, as documents and required information are produced in court, they will be made available to the other parties as part of the inquiry. It assists the parties in sharpening their positions by evaluating the other party's position and the evidence concerning the issues involved in the divorce.

e)      Settlement

The court resolves the points for consideration that must be decided after assessing the documents and information. These points will usually reflect the parties' unresolved conflicts regarding divorce or granting divorce in general. The court may also refer it to third-party negotiation at this point.

f)        Trial

At this point, the courts set dates for hearings and witness examinations. Prior to this, witnesses are summoned to appear in court on specific dates. The above stage also involves the cross-examination, final hearing, and so on.

g)      Orders/Decree

After concluding on all issues based on the arguments and evidence presented, the court issues orders or a decree granting or denying the divorce.

h)        Appeal

The decree can then be appealed to the High Court with jurisdiction over the family court, and then to the Supreme Court. Under Section 28 of the Hindu Marriage Act of 1955, it is generally appealable. The time limit for filing an appeal varies, but in Hindus, it ranges from 30 to 90 days.

MUTUAL DIVORCE

Divorce by Mutual Consent, also known as Mutual Divorce, occurs when both husband and wife mutually agree that they can no longer live together and that the ideal option is Divorce. They would present a Mutual Divorce petition jointly before the honourable court, without making any allegations against each other.

REQUIREMENTS FOR A MUTUAL DIVORCE:

a)      There has been a minimum of one year of separate living for the parties. It is questionable whether the legislators intended for the parties to live apart voluntarily or as a result of external forces. But as long as the requirement of the parties' separate living under the same roof of the matrimonial home or in separate residence is met, it does not appear necessary for the court to look into that matter. The court should not go beyond the statutory limit of its jurisdiction unless the consent of any of the parties to such a petition is vitiated by coercion, fraud, or undue influence.

b)      For whatever reason, the parties have been unable to coexist. In other words, there is no room for compromise or adjustment between them.

c)      The agreement for the dissolution of the marriage has the parties' free consent.

d)     The petition may be withdrawn at any time by the parties. It appears that the petition may be withdrawn even at the request of one party within six months of the date it was presented. However, the unilateral right of a party to withdraw the petition appears to be barred when a joint motion is taken by the parties after the passing of six months but before the passing of eighteen months from the date of presentation of the petition for inquiring.

Documents required for Mutual Divorce:

a)      Proof of husband's address

b)      Proof of wife's address

c)      Details about the husband and wife's professions and current earnings

d)     Marriage Certificate

e)      Background information on the family

f)       Photographs of a husband and wife's marriage

g)      Evidence demonstrating that the husband and wife have been living apart for more than a year

h)      Evidence of failed reconciliation efforts

i)        Income tax returns

j)        Property and asset information for the parties

k)      Depending on the facts and circumstances of the case, additional documents may be required.

HOW TO FILE FOR A DIVORCE BY MUTUAL CONSENT:

To obtain a divorce by mutual consent, several steps must be taken. According to Section 13B of the Hindu Marriage Act, filing a petition is generally the first step in the mutual divorce process in India. Two motions are also a part of this process. The crucial actions are as follows:

a)      Joint Petition Submission:

The initial step is to submit a joint petition to the pertinent family court. Both parties must affix their signatures to this joint petition. The divorce petition includes a joint statement from both partners stating that they are unable to coexist and should be granted a divorce as a result of their irreconcilable differences. The agreement to divide the assets, determine child custody, etc., is also included in this statement.

b)     The appearance of Both Parties in Court:

Following the filing of the petition, the second step in the procedure is for both parties to the divorce to appear in family court. The court sets this date, and the parties appear with their counsels.

c)      Court's Scrutiny of the Petition:

The court then examines the petition as well as the documents filed by the parties. When and if the court is satisfied, it orders the recording of the parties' oath statements. In some instances, the court attempts to bring the parties together. When the parties cannot be reconciled, the divorce proceeding is initiated.

d)     Recording of statement and adoption of order on First Motion:

The court issues an order on the first motion after the parties' statements have been recorded under oath. Following that, the parties are given a 6-month period in which to file the second motion. This must be filed within 18 months of the filing of the petition for the first motion.

e)      Second Motion Appearance:

If both parties have not agreed to come together after 6 months of the first motion or by the end of the reconciliation period, they may appear for the second motion for the final hearing. This also includes the parties appearing in court and having their statements recorded. If the second motion is not filed within 18 months, the court will refuse to grant the divorce decree. Furthermore, the section and settled law make it clear that one of the parties may withdraw their consent at any time before the decree is issued.

f)       The decision of the Court:

The free consent of both parties is the most essential criterion for granting divorce by mutual consent. In other words, a decree for divorce by mutual consent cannot be granted unless there is a complete agreement between the husband and wife for the dissolution of the marriage and the court is completely satisfied. The court issues appropriate orders as well as dissolves the marriage based on the statements recorded by the parties and the specific facts and circumstances of the cases. The court then issues the divorce decree, and the divorce is now final.

CONCLUSION:

Marriage cannot succeed unless both parties are willing to put in the effort. As a result, when one party stops contributing to the relationship, a divorce can occur. In today's world, both kinds of divorces are quite common but a mutual consent divorce eliminates unnecessary disputes and saves a significant amount of time and money. With an increasing number of divorce applications being filed, mutual consent divorce is one of the best-provided options. Furthermore, the parties have the authority to decide on sensitive issues such as child custody, maintenance, and any other important issue. As a result, it is the simplest type of divorce, as well as the least expensive and time-consuming when compared to a contested divorce.

INADEQUACY INFRASTRUCTURE IN INDIAN COURTS

·         According to the Chief Justice of India, developing a strong judicial infrastructure for Indian courts has always been a secondary concern. Because of this mentality, courts in India continue to function in outdated buildings, making it impossible for them to carry out their duties properly, as was noted on October 23, 2021 during the ground-breaking ceremony for the Bombay High Court Bench's Aurangabad expansion wing building.

·         Chief Justice of India proposes one central organization with some power to manage the construction of subordinate courts' infrastructure. Only a combined five States used 84.9 crores of the total 981.98 crores sanctioned in 2019–20 under the Centrally Sponsored Scheme (CSS) for the construction of court facilities, leaving the majority(91.36%) of funds unutilized. This underutilization of funds is not a COVID-19 pandemic-related aberration. When the CSS was first implemented in 1993–1994, the problem had already been affecting the Indian judiciary for about 30 years.

·         The proposal for the creation of the NJIAI had been forwarded to the Ministry of Law and Justice, and the Chief Justice of India stated that he wished for a good solutionshortly. Additionally, he has requested Kiren Rijiju, minister of law and justice, to quicken the procedure and see to it that the legislation to establish the NJIAI is discussed during the winter session of Parliament. According to the Chief Justice of India, the institutionalization of the process for enhancing and developing cutting-edge judicial infrastructure is the finest present we can conceive of offering to our people and our nation in this 75th year of our Independence.

·         The infrastructure of the Indian judiciary has not kept up with the enormous volume of lawsuits filed annually. A conclusion is reinforced by the fact that although there are 24,280 authorized judicial officials in the nation, there are only 20,143 rooms of the courts available, including 620 rented halls. Additionally, there are only 17,800 residential units available for court officials, including 3,988 rentals. Up to 26% of court facilities lack separate restrooms for women, while 16% of lack male restrooms. Only 51% of court complexes feature libraries, and only 32% of rooms of the courts have separate record rooms. Only 51% of court complexes include a library, and only 5% of court complexes have basic medical services. Only 27% of rooms of the courts have a computer stationed on the judge's dais with a videoconferencing capacity, despite the epidemic forcing the majority of courts to adopt a hybrid form of hearing, that combines physical and videoconferencing modes.

·         The Centre informed the Supreme Court on 26^th April, 2022 that problems like the absence of adequate infrastructure to meet the expanding needs of the judiciary and the bar in the national capital can be examined in conjunction with the supreme court registry. The overcrowding in the hallway of the Supreme Court was described as dreadful by a bench made up of Justice Vineet Saran and J. K. Mahesction. We don't walk through the hallways. They also suggested that the federal government take action. The bench stated that the Centre must take action and that it is not the court's responsibility to provide a solution.

·         In his appearance on behalf of the Centre, Solicitor General Tushar Mehta claimed that the case was not adversarial and that he was in contact with the government. He added that the matter might be heard within four weeks. The bench took notice of the arguments and stated that the Centre might examine the issues raised in the plea after consulting with the petitioner's attorney and the registry of the supreme court. In a PIL filed by bar leader Ardhendumauli Kumar Prasad on March 8, 2022, the top court requested responses from the Centre and the apex court's registry in order to address the growing demand for judicial infrastructure for all courts, including the subordinate judiciary, tribunals, the Delhi High Court, and the bar in the national capital. The bench then scheduled the PIL for a hearing on July 20.

·         The bench stated on 25^th April, 2022 that it needed to know the Central government's position on the plea, and it set the topic for discussion with the solicitor general on Tuesday. The PIL asked to develop a judicial vista close to the apex court's premises. The PIL has also sought direction fromthe Ministry of Law and Justice and the Housing and Urban Affairs to constitute a central authority, funded by the Consolidated Fund of India, to cater to the need for judicial infrastructure under the administrative control of the Chief Justice of India (CJI).

·         The argument made in the petition claimed that the lack of judicial infrastructure—rooms of the courts, basic amenities, etc.—for judges, attorneys, and litigants in the subordinate judiciary and tribunals across the nation is a very serious problem and that the judiciary's lack of independence in this regard and its reliance on the federal government and state governments undermines the cause of judicial independence. The National Judicial Infrastructure Authority must be established because judicial infrastructure independence is crucial to advancing the cause of judicial independence and is one of the most fundamental constitutional rights.

·         Article 14, which establishes the Rule of Law as the cornerstone of the administration of justice, is the most important provision in the Constitution. Given the amount of work the nation's top court gets and the growing Bar, realising the rule of law hinges on having an adequate and proper infrastructure. It has asked for the building of a sizable, multi-level courthouse complex with 45 to 50 rooms, each equipped with video conferencing technology and enough seats for litigants, attorneys, law clerks, and interns. A multi-level structure with 5000 chambers for senior attorneys, attorneys-on-record, and attorneys, as well as the necessary amenities, has also been requested. In addition, the petition demanded adequate creche facilities to accommodate the numerous women.

·         An analysis of the infrastructure in 12 district courts in New Delhi and the NCR revealed many basic amenities lacking, including restrooms, guide maps, and ramps for the physically disabled, underscoring the need for a more in-depth discussion on how Indian courts are constructed and maintained. Political, social, and economic factors are frequently discussed in discussions access to justice, but accessibility and comfort in physical access are rarely discussed. Unfortunately, the Indian judiciary continues to under-analyse the topic of physical infrastructure.

CONCLUSION/SOLUTION-

Consequently, providing more accessible navigational aids, sanitary restrooms, many facilities permitting barrier-free access for people with disabilities, and inadequate security features for rooms of the courts is the option for improving the circumstances of Indian courts-

1. In addition to ordering the construction of new courts, the Supreme Court should require all High Courts to produce yearly infrastructure status reports that include information on budgetary expenditures and actions to maintain and renovate current court facilities. District Courts should be required by High Courts to follow suit.

2. In collaboration with the Supreme Court, the Ministry of Drinking Water and Sanitation can revitalize the Swachh Nyayalaya program.

3. The National Court Management System(NCMS) study is outdated and does not consider what is needed for contemporary court complexes. The Supreme Court must reassemble the NCMS and update the baseline report to reflect current requirements.

4. The public and litigants need a forum to hear their complaints. To do this, the Ministry of Law and Justice can develop a platform on the current Bhuvan-Nyaya Vikas webpage to solicit visitor comments to courthouses. To handle complaints from litigants and users, each district court shall establish an infrastructure grievance redressal cell and select an appropriate authority from the Registry inside the court complexes. The High Courts may supervise establishing such grievance redressal cells in each district court within their authority.

5. The NCMS study suggests that a guidance map, facilitation, welcome centre, and a document filing counter should be located near the complex's entrance. Only two features—a tour map and a help desk—were included in the study, which was limited to looking at whether each court complex possessed them. Only 20% of district courts (133 out of 665) had maps, and only 45% of court complexes (300 out of 665) had assistance desks. West Bengal and Sikkim were two states with the poorest overall performance on this metric.

6. Every district court complex should include a dedicated waiting room for litigants and the general public, according to the NCMS study. Bihar and Rajasthan were the two states with the fewest courthouses with designated waiting spaces. Only 54%, or 361 district court complexes, had designated waiting for places, despite this being a fundamental necessity. Bihar and Rajasthan were the two states with the fewest courthouses with designated waiting spaces.

7. Information about the courtroom number, the presiding judge, and the active case number is shown on an electronic case display board. An electronic case display board should be present upon admission and in the waiting rooms, according to the NCMS study. Electronic case display boards at the entrance and waiting rooms were present in just 26% of the court facilities.

8. The NCMS study recommends separate, well-maintained, gender-segregated restrooms for litigants, guests, and attorneys. The least amount of court complexes with working toilets was found in Goa, Jharkhand, Uttar Pradesh, and Mizoram. There were only men's restrooms at about 100 district court facilities. The unhygienic conditions in court complexes are also a sign that government programs like SwacchNyayalayas, which were meant to build and maintain restrooms in 16,000 court buildings, have failed.

9. According to the NCMS study, court facilities must have an accessible architecture that is universal and adaptable to local demands and situations. On this metric, the majority of district court facilities did poorly. Only 27%, or 180 court complexes, had ramps or elevators for access. In comparison, only 11%, or 73 court complexes, had bathrooms specifically for people with disabilities, and only 2%, or 13 court complexes, had features for visual aids.

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Counter Claim

Recently, on 6^th June 2022, the Panchkula Bench of Haryana Real Estate Regulatory Authority passed a judgment in case titled as "Ansal Infrastructure and Properties Vs. Raj Mahendra Singh" RERA-PKL-404-2020 which came as a big relief to the homebuyers who fall prey to the illegal and arbitrary demands of the Builders (Promoters).

Facts of the Case

This case was filed by Ansal Properties and Infrastructure (Promoter/Complainant) against the Allottee (Respondent/Allottee) vide complaint no. 404 of 2020. The Allottee booked its Unit in the “Green Escape” project of the Promoter in 2011. The Promoter promised the Respondent that the Unit shall be delivered to him by March 2015 but eventually offered the possession on 7^th October 2016 after a delay of around 1.5 years.

The total sale consideration of the Unit was INR 46,02,375/- as per the terms of the agreement for sale and the Respondent made the payment of INR 48,19,755/- towards the total sale consideration thereby clearing all the demands raised but the Promoter, while making the offer of possession raised an illegal demand of INR 1,93,015/- giving no proper justification. On getting no response from the Allottee’s side, the Promoter further raised another demand letter of INR 1,91,268/- claiming it to be the pending amount towards total sale consideration without giving any detailed clarification or justification.

An important fact to be noted here is that the basic sale price (“BSP”) of the Unit kept on changing in all these demand letters providing no information or taking consent about the same. Initially, the Promoter promised to sell the unit to the Allottee for Rs. 35,78,500/- Thereafter, he further increased the BSP to an amount of Rs. 35,81,900/- and then again from Rs. 35,81,900/- to Rs. 36,86,715.24/- i.e., he unilaterally increased the BSP from INR 35,78,500/- to 36,86,715/- (with a difference amounting to INR  1,08,215.24/-) which was contested by the Allottee in the reply to the complaint filed by the builder.

Issues:

The question before the Authority was to decide whether the demand raised by the Promoter of INR 1,91,268/- is justified or not and whether there is any delay in delivery of possession and if so, to provide compensation to the Allottee for such delay.

Determination

The Panchkula Bench of the Haryana Real Estate Regulatory Authority while deciding the issue, observed and determined that the total sale consideration as per the agreement for sale was INR 46,02,375/- and the demand raised of INR 1,91,268/- was nowhere mentioned in the agreement for sale nor any further justification of this demand was provided by the Promoter. Hence, this demand raised was considered to be illegal and unjustified and had no legal binding on the Allottee. The Order of this Hon. Authority makes it clear that the Allottee is only bound to pay the demands as per the terms and provisions of the agreement for sale and anything demanded arbitrarily from the Promoter should be opposed and denied by the Allottee as there is no legal binding on the Allottee to fulfil any such illegal demands of the Promoter.

Here, the Hon. Authority also provides a remedy to the Allottee by directing the Promoter to pay the delay interest for the delay of 1.5 years occurred in the delivery of possession of the Unit to the Allottee.  A peculiar aspect to this pronouncement is that though in this case, the due date of possession was a Pre-RERA date, and the offer of possession was also made prior to the enforcement of the RERA Act, regardless of the same, the Promoter was directed to pay the interest for delay in delivery of possession to the Allottee.

Another rather pertinent aspect to take from this case is that the Hon. Authority, in this case, has accepted the counter-claim made by the Respondent (Allottee) against the Complainant (Promoter) and provided the relief accordingly to the Respondent based on his counter-claim. This aspect of the said judgment needs to be particularly celebrated as paving way for the acceptability of counter-claims in RERA.

The break down of the doctrine of Res-Judicata

The meaning of Res is Subject Matter, and the meaning of judicata is adjudged together meaning “a matter adjudged”. In easier words, the thing has been concluded by the court. If the matter has already been settled by a court between the same parties, the same subject matter cannot be tried by another court. Hence, the court will put away or dismiss the lawsuit as another court has concluded it. The Doctrine of Res Judicata applies to both criminal and civil legal systems. There is no lawsuit directly or indirectly tried in a previous suit that can be tried once more.

• ‘X’ sued ‘Y’ as he didn’t pay rent. ‘Y’ requested the reducing the amount of rent on the foundation as the amount of the land was less than mentioned on the lease documents. The Courts concluded that the land was greater than shown in the lease. The land was excess and the doctrines of Res Judicata will not be applied.

• In a lawsuit, ‘X’, the civil suit was filed in which the respondents requested that the Court put away or dismiss the civil suit with an appeal of Res Judicata. The Court declared that the doctrine of Res Judicata must be proved with the help of evidence. Due to Res Judicata, her claim was barred.

Pre-requisites for Res Judicata:

• A judicial decision by an experienced court or tribunal,

• Final and binding and

• Any decision made on the merits

•  A fair hearing

• Previous decision correct or incorrect is not pertinent. 

Res Judicataconsists of two principlesof claim preclusion and matter preclusion. Matter preclusion is also known as collateral estoppel. The litigants of the case do not have the right to sue each other one more time after the final judgment on the ground of merits. For example, if a plaintiff loses a lawsuit against the respondent in the lawsuit say A, he cannot sue the respondent again in lawsuit B based on the same facts and events. I should not exist in a different court with the same facts and events in a different court. Whereas in matter preclusion, it prohibits the re-litigation of matters of law that the judge has already determined as part of an earlier lawsuit.

The scope has been concluded in the lawsuit of Gulam Abbas v. State of Uttar Pradesh. In this lawsuit, the court incorporated the rules as evidence to appeal a matter already tried in an earlier lawsuit. Judgment of this lawsuit was difficult as the judges should apply Res Judicata. It was concluded that Res Judicata is not exhaustive and even if the matter is not directly covered under the provisions of the section, it will be considered a lawsuit of Res Judicata on general doctrines.  

The doctrine of Res Judicata seeks to encourage the fair administration of justice and honesty and to prevent the law from being abused. The doctrine of Res Judicata is applicable when a litigant attempts to file a subsequent civil lawsuit on the same subject matter after receiving a judgment in a previous lawsuit wherein the parties are same and the subject matter as well. In many jurisdictions, this applies not only to the specific claims made in the first lawsuit but also to claims that could have been made during the same lawsuit.

Section 11 of the Code of Civil Procedure Codeincorporates the doctrine of Res Judicata also called the “rule of conclusiveness of judgment”. The doctrine of Res Judicata was laid down as a principle in India in the lawsuit of Satyadhyan Ghosal v. Deorjin Debi. Judge Das Gupta, J. gave the judgment of the court And it was appealed by the landlords who attained a decree for ejectment against the tenants who were Deorajin Debi and her minor son. Still, they cannot get the possession in implementation soon after the judgment was made. Under Section 28 of the Calcutta Thika Tenancy, a petition was made by the tenant and alleged that they were the Thika tenants. This petition was resisted by the landlords saying they were not Thika Tenants within the meaning of the Act.

The people who were tenants moved to the High Court of Calcutta under the Civil Procedure Code. The court applied the doctrine of Res Judicata to achieve finality in litigation. The outcome came that the original court, as well as the higher court, can proceed with any future litigation on the basis that the previous decision was correct.

The doctrine of Res Judicata says –

• No case should be tried twice for the same reason.

• State has the power to decide there should be an end to a litigation

• The decision of the court must be accepted as the correct decision.

International

Lowe v. Haggerty

In the case of Lowe v. Haggerty, an important question was raised considering the effect of the former judgment on the respondent when the guest sued him. It was held that a suit was barred.   There has not been the former record that disclosed what was in the first proceeding. It was decided by the courtthat it was not possible to determine what was the matter involved in the previous suit. The court disposed of the record made by the parties in a similar situation. Nonsuit was not granted in this lawsuit and the plaintiff’s appeal was refused.

India

Daryao v. State of Uttar Pradesh-

In the historic lawsuit of Daryao v. State of Uttar Pradesh, the doctrine of Res Judicata of the universal petition was established. The Apex Court of India i.e.; the Supreme court placed the doctrine of Res Judicata on a broader foundation. In this lawsuit, petitioners filed a writ petition in the High Court of Allahabad under Article 226 of the Constitution. But the suit was put away or dismissed. Then both had independent petitions in the Supreme Court under the writ jurisdiction of Article 32 of the Constitution. The respondents objected to the petition by asserting that the prior decision of the High Court would be operated as Res Judicata to a petition under Article 32. The Supreme Court put away or dismissed and disagreed with the petitions.

It was the decision of the court that the Doctrine of Res Judicata applies to a petition under Article 32 of the Constitution. If the petitioner files a petition in the High Court under Article 226 of the Constitution and it is put away or dismissed on the basis of the worth, it would be operated as Res Judicata to bar a similar petition in the Supreme Court under Article 32 of the Constitution.

Devilal Modi vs. Sales Tax Officer-

In the leading lawsuit of Devilal Modi vs. Sales Tax Officer, the respondent challenged the validity of an order of assessment under Article 226. The petition was put away or dismissed based on merits. The Supreme Court also rejected the appeal against the order based on merits. The respondent again filed another writ petition in the same High Court against the same assessment order. This time the petition was put away or dismissed by the High Court. The Apex Court of India i.e., Supreme Court held that the doctrine of Res Judicata barred the petition.

The Doctrine of Res Judicata can be perceived as forbidding parties to shift the time back during the unresolved proceedings. This principle can be implemented in the exterior of the Code of Civil Procedure and covers many areas related to society and people. The ceiling of Res Judicata is vast and involves many things, including Public Interest Litigation. The reach has widened with the transit of time, and the Supreme Court has broadened the areas with its judgments.

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