Jammu & Kashmir and Ladakh High Court Weekly Round-Up: June 05 To June 11

Citations 2023 LiveLaw (JKL) 148 to 2023 LiveLaw (JKL) 155

NOMINAL INDEX

Rajni Devi Vs State of J&K 2023 LiveLaw (JKL) 148

Hakim Din Vs Akbar Noor & Ors 2023 LiveLaw (JKL) 149

Union of India v. S.P. Singla Construction Pvt. Ltd 2023 LiveLaw (JKL) 150

Raja Sajad Ahmad Wan Vs State of J&K 2023 LiveLaw (JKL) 151

M/s Best Crop Science Industrial Area Versus Union of India 2023 LiveLaw (JKL) 152

Mahant Subash Shah Vs Kabir Singh & Anr 2023 LiveLaw (JKL) 153

State of J&K Vs Davinder Kumar & Ors 2023 LiveLaw (JKL) 154

State (now UT) of J&K Vs Bashir Ahmad 2023 LiveLaw (JKL) 155

Judgements/Orders:

Order 6 Rule 17 CPC Aims To Advance Substantial Justice Through Amendment Of Pleadings & Not To Impede It : Jammu And Kashmir High Court

Case Title: Rajni Devi Vs State of J&K

Citation: 2023 LiveLaw (JKL) 148

The Jammu and Kashmir and Ladakh High Court reiterated that the actual purpose of Order 6 Rule 17 of the Code of Civil Procedure (CPC) in the legal system is to advance the cause of justice rather than impede it.

Expounding the law on the subject, Justice Javed Iqbal Wani observed that the underlying object of Order 6 Rule 17 Court should try the merits of the case that comes before it and should consequently allow the amendments that may be necessary for determining the real question in controversy between the parties, as ultimately the Courts exist for doing justice between the parties and not for punishing them.

[Impleading Legal Heirs Of Deceased Defendant] Jammu & Kashmir High Court Differentiates Between Order 1 Rule 10 And Order XXII Rule 4 CPC

Case Title: Hakim Din Vs Akbar Noor & Ors.

Citation: 2023 LiveLaw (JKL) 149

Differentiating the ambit and scope of Order-1 R-10 (2) and Order-XXII R-4 CPC, the Jammu and Kashmir High Court ruled that while Order-1 R-10 (2) enables the Court to add, substitute or strike down a person impleaded as party to the suit, Order-XXII R-4 on the other hand requires the plaintiff to bring legal heirs/representatives of a deceased defendant on record.

Therefore, where a case is covered by Order-XXII R-4, the provisions of Order-1 R-10 (2) stand excluded on the well known principle “general words do not derogate special provisions”, the court clarified.

Requirement To Refer The Claims To Dispute Adjudication Board (DAB) Is Mandatory: Jammu & Kashmir And Ladakh HC

Case Title: Union of India v. S.P. Singla Construction Pvt. Ltd.

Citation: 2023 LiveLaw (JKL) 150

The High Court of Jammu & Kashmir and Ladakh held that the requirement to refer the dispute to DAB, as per the GCC of FIDIC Contracts, is mandatory and the failure to comply with the provision results in making the dispute non-arbitrable.

The bench of Justice Vinod Chatterji Koul held that when the agreement between the parties provides for reference of claims to DAB as pre-arbitration requirement and also provides for the consequences for the non-compliance, the parties must necessarily follow the agreed procedure and failure would result in the claims becoming non-arbitrable.

Jammu & Kashmir High Court Acquits Man In 22 Years Old Rape Case

Case Title: Raja Sajad Ahmad Wan Vs State of J&K.

Citation: 2023 LiveLaw (JKL) 151

The Jammu and Kashmir and Ladakh High Court acquitted a man accused of having committed a rape about 22 years ago. It observed that non-examination of the material Prosecution witnesses i.e. the Doctor and the Investigating Officer, not only causes prejudice to the case of the accused, but also to the case of the Prosecution and creates a reasonable doubt against his involvement in the offence.

GST Budgetary Support Scheme Can’t Be Interpreted Liberally: J&K And Ladakh High Court

Case Title: M/s Best Crop Science Industrial Area Versus Union of India

Citation: 2023 LiveLaw (JKL) 152

The Jammu & Kashmir and Ladakh High Courts held that the GST Budgetary Support Scheme cannot be interpreted liberally.

The bench of Chief Justice N. Kotiswar Singh and Justice Vinod Chatterji Koul observed that the new scheme provides certain benefits by way of budgetary support to such units that were granted excise duty exemption under an earlier tax regime prior to the introduction of the GST regime. However, budgetary support is conditional and not blanket.

No Appeal Or Revision Against Delay Condonation In Filing Application U/S 34 For Setting Aside Arbitral Award: Jammu & Kashmir High Court

Case Title: Mahant Subash Shah Vs Kabir Singh & Anr

Citation: 2023 LiveLaw (JKL) 153

The Jammu and Kashmir and Ladakh High Court held that no appeal or revision would lie against an order allowing an application for condonation of delay accompanying an application filed under section 34 of the Arbitration and Conciliation Act for setting aside arbitral award.

A bench of Justice Javed Iqbal Wani said the legislature by using expression an appeal shall lie from the orders provided therein "and from no others" in Section 37 (Appealable orders) has taken away the right to appeal against all orders except specified in Section 37 (1) and (2).

Examination-In-Chief Of Witness Can't Fasten Liability Unless Opposite Party Is Afforded Opportunity To Cross Examine: Jammu & Kashmir High Court

Case Title: State of J&K Vs Davinder Kumar & Ors.

Citation: 2023 LiveLaw (JKL) 154

Upholding the acquittal of a Police officer in a 20 year old rape case, the Jammu and Kashmir and Ladakh High Court said that examination-in-chief of a witness cannot be taken into consideration to fasten any liability, unless the opposite party is afforded a reasonable opportunity to cross-examine said witness as regards information tendered by him in his examination-in-chief.

"It shall be highly unsafe to consider the chief examination of a witness, who is not subjected to cross examination and court in such circumstances, is left with no option, but to ignore such testimony", a bench of Justice Rajesh Sekhri observed.

Jammu & Kashmir High Court Upholds Acquittal Of Alleged Lashkar-E-Taiba Members Due To 'Unreliable' Prosecution Evidence

Case Title: State (now UT) of J&K Vs Bashir Ahmad

Citation: 2023LiveLaw (JKL) 155

Terming the evidence of prosecution as highly unreliable, the Jammu and Kashmir and Ladakh High Court upheld the acquittal of alleged active members of Lashkar-e-Taiba, who as per prosecution were hell-bent upon creating unrest in the valley and had been indulging in the acts of sabotage and terrorist activities to dislodge the Governments.

Expressing serious reservations against the evidence that the prosecution had put forth before the trial court a bench of Justice MA Chowdhary observed,

“The story of the prosecution otherwise seems to be unreliable in view of the fact that the seven persons allegedly involved in terrorist activities and as alleged by the police to be members of Laskhar-e-Taiba a dreaded organization were sitting like ducks at a public place in Wildlife Sanctuary at Manda waiting for the police to be arrested without any reaction and despite availability of the weapon/explosives they had not used them to retaliate while being arrested by the police”.

News Updates:

Army Jawan 'Murder' Case: Judicial Magistrate Orders Further Investigation After 17 Years

17 years after the mysterious "murder" of Sepoy Yuvraj Uttam Rao inside an army camp, the Judicial Magistrate First Class (JMFC) of Banihal has ordered the reopening of the investigation into the matter.

Expressing dissatisfaction with the previous investigation, Judge Manmohan Kumar directed the police to conduct further inquiries and submit a detailed report within three months.