Nominal Index [Citations: 2023 LiveLaw (Ker) 332-348]Hiran Valiiyakkil Lal & Ors v Vineeth M.V & Ors 2023 LiveLaw (Ker) 332Sholly Lookose v. V.I. Joseph 2023 LiveLaw (Ker) 333Vijayan & Anr. v. State of Kerala & Anr. 2023 LiveLaw (Ker) 334Sajitha & Anr v. Baldbose & Anr 2023 LiveLaw (Ker) 335 Asokan v. Krishna Ezhuthassan & Ors. 2023 LiveLaw (Ker) 336Narayanankutty K...
Nominal Index [Citations: 2023 LiveLaw (Ker) 332-348]
Hiran Valiiyakkil Lal & Ors v Vineeth M.V & Ors 2023 LiveLaw (Ker) 332
Sholly Lookose v. V.I. Joseph 2023 LiveLaw (Ker) 333
Vijayan & Anr. v. State of Kerala & Anr. 2023 LiveLaw (Ker) 334
Sajitha & Anr v. Baldbose & Anr 2023 LiveLaw (Ker) 335
Asokan v. Krishna Ezhuthassan & Ors. 2023 LiveLaw (Ker) 336
Narayanankutty K v. Special Devaswom Commissioner & Ors 2023 LiveLaw (Ker) 337
Marykutty Kurian & Anr. v. Babu Joseph & Anr. 2023 LiveLaw (Ker) 338
Shajan Scariya v. State of Kerala & Anr. 2023 LiveLaw (Ker) 339
M/S Lisie Medical Institutions v. State of Kerala & Ors. 2023 LiveLaw (Ker) 340
Balachandran v. Sub Registrar and connected matters 2023 LiveLaw (Ker) 341
Tamil Nadu State Transport Corporation v State of Kerala & Ors. 2023 LiveLaw (Ker) 342
Shyju G.J. v. State of Kerala and Visakh A. v. State of Kerala 2023 LiveLaw (Ker) 343
Manaf M v Union of India 2023 LiveLaw (Ker) 344
Ashok Harry Pothen v. Premlal 2023 LiveLaw (Ker) 345
Ahammedkutty Pothiyil Thottiparambil v Union of India & Anr 2023 LiveLaw (Ker) 346
Diamond Crushers v. State of Kerala & Ors. 2023 LiveLaw (Ker) 347
Santha Kumari v. State of Kerala & Ors. 2023 LiveLaw (Ker) 348
Judgments/Orders This Week
Case Title: Hiran Valiiyakkil Lal & Ors v Vineeth M.V & Ors
Citation: 2023 LiveLaw (Ker) 332
The Kerala High Court recently held that the mandate of an arbitrator can be extended under Section 29A(4) of the Arbitration and Conciliation Act, 1996, even if the parties have not extended the period by consent.
Justice Murali Purushothaman thus revived and extended the arbitrator's mandate to allow for the completion of the arbitral proceedings.
"Sub-section (4) of Section 29A deals with cases where the award is not made within a period of twelve months from the date of the completion of the pleadings and it provides that, if the award is not made within the period specified in sub-section (1), the mandate of the Arbitrator shall terminate unless the Court has, either prior to or after the expiry of the period so specified, extended the period. The said sub-section with the use of the conjunction 'or' also applies in cases where the award is not made within the extended period not exceeding six months specified in sub-section (3). It is not as if it applies only to cases where the period is extended under sub-section (3)."
Case Title: Sholly Lookose v. V.I. Joseph
Citation: 2023 LiveLaw (Ker) 333
The Kerala High Court recently held that legal heirs of the deceased original plaintiff need not be separately impleaded as counter claim defendants, in order for the counter claim not to stand abated.
Justice P. Somarajan explained that a counter claim ought to be treated as a plaint and governed by the rules applicable to plaints by virtue of sub-rule (4) of Rule 6A of Order VIII C.P.C..
"Necessarily, the plaintiff/plaintiffs in the suit would stand in the status of a defendant/defendants as against the counter claim, when treated as a plaint. When the original plaintiff passed away and legal heirs were brought on record by impleadment as supplementary plaintiffs, they would stand stepped into the shoes of the original plaintiff and necessarily would acquire the character of defendants as against the counter claim raised. Hence, there is no need to implead them once again separately as counter claim defendants could be raised only against the plaintiff in the suit and that it would not be permissible to implead any other person in the suit for the purpose of counter claim," the Court explained.
Case Title: Vijayan & Anr. v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 334
The Kerala High Court quashed criminal proceedings initiated by a woman against her brother and a relative (the 1st and 2nd accused, respectively), who failed to repay a loan taken against her property for the 1st accused person's cancer treatment.
Justice A. Badharudeen observed that accused-petitioners failure to fulfil the terms of the contract to repay the amount and to discharge the liability would only amount to 'breach of contract' and not the offence of cheating.
The Court emphasized that mere breach of contract would not constitute an offence of cheating and that 'deceitful intention' to get wrongful gain to the accused and corresponding loss to the victim ought to be established at the very inception in order to constitute the offence of cheating.
"It is true that, if accused Nos.1 and 2 failed in fulfilling the terms of the contract to repay the amount and to discharge the liability, then, the said act would attract only breach of contract and the same shall not come under the purview of cheating. That is to say, mere breach of contract by itself, would not constitute an offence of cheating and cheating as an offence shall be established by the ingredients hereinabove extracted and by establishing deceitful intention to get wrongful gain to the accused and corresponding loss to the victim at the very inception," Justice Badharudeen observed.
Case Title: Sajitha & Anr v. Baldbose & Anr
Citation: 2023 LiveLaw (Ker) 335
The Kerala High Court recently held that being unaware of the contents of a Lok Adalat award or not being communicated of the same is not a valid ground to challenge the award.
Holding so, Justice Mohammed Nias C.P. dismissed a petition challenging the award issued by the Lok Adalat in a divorce and maintenance case.
"The ground that she was not aware of the contents of the compromise and that she was not communicated about the same by her counsel cannot be accepted. At any rate, the same cannot be a ground to challenge the award of the Lok Adalat."
Case Title: Asokan v. Krishna Ezhuthassan & Ors.
Citation: 2023 LiveLaw (Ker) 336
The Kerala High Court was recently faced with the question as to whether the removal of soil by a landowner, subsequent to the institution of a suit, would disentitle such landowner from raising a claim for easement right of lateral support from his neighbour's land.
The Single Judge Bench of Justice P.G. Ajithkumar took the view that if the unexcavated portions of the plaint schedule property are left as such, the lateral support to the landowner's property, which is retained in its original level can be ensured. The Court however, added that if the landowner also lowered the level of his respective properties, he would then be precluded from claiming natural right of lateral support in view of Section 7 of the Indian Easement Act, 1882 ('Easements restrictive of certain rights').
Kerala High Court Warns Religious, Political Bodies Against Obstructions On Public Roads
Case Title: Narayanankutty K v. Special Devaswom Commissioner & Ors
Citation: 2023 LiveLaw (Ker) 337
The Kerala High Court recently urged religious and political organisations in the State to strictly comply with its earlier directives preventing obstruction of pedestrian and traffic movement on public roads during festivals and protests.
In the earlier judgment, a Division Bench of Justice Anil K Narendran and Justice P.G Ajithkumar had highlighted the need to maintain roads constructed according to prescribed standards and guidelines without any encroachment on pedestrian facilities.
"Footpaths are not intended for stocking articles for trade or for display of goods by traders, in front of their shops or establishments. Similarly, footpaths are not intended for holding campaigns, demonstrations, etc., by political parties and other organisations, by causing obstructions to free movement of pedestrians. No political party or organisation can be permitted to encroach footpath or right of way of public roads, in connection with any such protest, demonstrations, etc., by erecting any temporary structures on the right of way or on the pedestrian facilities, forcing pedestrians including those with disabilities and reduced mobility to walk in unsafe circumstances," Court had said.
Case Title: Marykutty Kurian & Anr. v. Babu Joseph & Anr.
Citation: 2023 LiveLaw (Ker) 338
The Kerala High Court recently observed that when a person who attempts to help a road accident victim lying unattended for several hours is falsely implicated as an accused, they would think twice before extending a helping hand.
Justice Sophy Thomas made the observation in a case wherein an auto rickshaw driver who attempted to help a road accident victim by taking him to the hospital was implicated as an accused.
"True, it was unfortunate that a young man lost his life in a road traffic accident by falling down from his bike. It will be equally unfortunate, if an innocent person, who tried to help the injured by taking him to hospital in his autorickshaw, was made an accused in a criminal case," the Court observed.
Case Title: Shajan Scariya v. State of Kerala & Anr.
Citation: 2023 LiveLaw (Ker) 339
The Kerala High Court directed that Shajan Skaria, editor of YouTube channel Marunadan Malayali, shall not be arrested without first issuing a notice under Section 41A Cr.P.C. or a notice intending to arrest stating a non-bailable offence against him. The Court further directed that such notice shall grant Skaria 10 days' time.
The Court passed the order while considering the plea filed by Skaria seeking directions to be issued to the State Police Chief not to arrest him without granting him sufficient opportunity to explain his stand, or without issuing notice under Section 41A Cr.P.C. The petitioner further sought necessary directions to be issued to the Home Secretary to to issue necessary directions in light of the Apex Court decision in Kumar Antil v. Central Bureau of Investigation & Ors. (2022), wherein it had been held that the accused would be entitled to be in case of any non-compliance of Section 41 and 41A Cr.P.C..
Justice P.V. Kunhikrishnan orally asked why Skaria was sought to be arrested without issuing notice.
"Supreme Court also passed an order in this regard...now you're behind this man. Don't arrest him without any notice. He should be given an opportunity to content his case as per law. I will make it clear that if there is any ground to arrest, after complying with Section 41A, you can arrest," the Court orally remarked.
Case Title: M/S Lisie Medical Institutions v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 340
The Kerala High Court recently dismissed the Appeal preferred by Lisie Hospital, claiming building tax exemption in respect of one of its buildings constructed in the year 2013.
The Apex Court in February 2023, had remanded the matter to the High Court for decision on the factual aspects of the case, after clarifying that the term 'charitable purposes' in Section 3(1) of the Kerala Building Tax Act (hereinafter, 'the Act') would not be limited to "free medical relief" alone.
Lisie Hospital had sought tax exemption relying on tax exemption for 'buildings used principally for religious, charitable or educational purposes or as factories or workshops'.
The Division Bench comprising Justice A.K. Jayasankaran Nambiar and Justice Mohammed Nias C.P. in the writ appeal before it, found that the building in question was not used 'principally' for providing free medical relief for inclusion under the definition of 'charitable purpose'.
"...we find that it is not in dispute that the building of the appellant was not principally used for providing free medical relief as required under the statutory provision for inclusion under the definition of charitable purpose. It is also not the case of the appellant that it rendered in the said building, any of the other services that qualify as charitable purpose under Section 3 of the Act. We therefore cannot see how the appellant’s building would qualify for the exemption under Section 3 of the Act in respect of the medical relief provided in the building in question," the Court observed.
Case Title: Balachandran v. Sub Registrar and connected matters
Citation: 2023 LiveLaw (Ker) 341
The Kerala High Court recently reiterated that the inability of persons transferring possessory rights to produce prior documents is not a valid reason for the Sub Registrar to refuse registration.
Justice Gopinath P thus emphasised that possessory rights can be transferred without any legal barriers, emphasising that the Sub Registrar should not inquire into the nature of possession, whether based on lease or title and only the rights possessed by the petitioner could be conveyed to the transferee.
"The persons executing the document can only transfer the right that they have and merely because they are purporting to transfer possessory rights and they are not been able to produce any prior documents cannot be a ground for the Sub Registrar to refuse registration."
Case Title: Tamil Nadu State Transport Corporation v State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 342
The Kerala High Court recently observed that the Tamil Nadu State Transport Corporation's (TNSTC) vehicles are not exempted in Kerala from paying toll fees as per the Toll Act and operating based on a reciprocal agreement does not exempt them from paying the fees.
Justice Mohammed Nias C.P thus added that the contractor responsible for toll collection has the right to demand payment of toll fees from TNSTC.
"The agreements were produced as Exts.R4(a) and R4(b). The buses of the Petitioner Corporation were never exempted. Even as per Toll Act amended in 1990 only those motor vehicles belonging to the Government of Kerala or the Government of India and any stage carriage operated by the KSRTC were exempted. It is clear from Ext.R4(a) list that the petitioner's vehicles are not exempted from paying the toll. Nothing produced by the petitioner enables them to get any exemption from payment of toll."
Case Title: Shyju G.J. v. State of Kerala and Visakh A. v. State of Kerala
Citation: 2023 LiveLaw (Ker) 343
The Kerala High Court granted bail to the former Principal of Christian College, Kattakada, G.J. Shyju, and Student Federation of India (SFI) leader Visakh A in the case related to alleged impersonation, falsification of documents and misrepresentation during the college elections held in May 2023.
The Single Bench of Justice Ziyad Rahman A.A. took note of the period of detention already undergone by the petitioners and the fact that there was substantial progress in the investigation during which necessary recoveries were already affected.
Case Title: Manaf M v Union of India
Citation: 2023 LiveLaw (Ker) 344
The Kerala High Court granted over ₹8 lakhs as compensation to a man who sustained a gunshot injury from a misfired service gun by a Railway Constable more than a decade ago.
Justice P.V Kunhikrishnan expressed disappointment with the Railway and took the view that in situations like this, it ought to have risen to the occasion and redressed the petitioner's grievance without asking him to lead a legal battle.
"All legal battles are worth fighting, but some are not worth winning," the Court added.
Case Title: Ashok Harry Pothen v. Premlal
Citation: 2023 LiveLaw (Ker) 345
The Kerala High Court has reiterated that to distinguish between a lease and a license one has to consider the agreement between parties as a whole and the intentions of the parties involved rather than the nomenclature used in the document and reading a few isolated provisions.
A Division Bench of Justice Anil K. Narendran and Justice P.G Ajithkumar observed that there was no single litmus test to decide the nature of a document.
"It is thus the settled law that the nature of a document has to be understood not by its nomenclature or by interpreting one or two clauses in it in isolation, but by interpreting the document as a whole. Going by the principles laid down by the Apex Court as well as this Court, there cannot be a single litmus test to decide whether the transaction in Ext.P1 is a lease or licence."
Anticipatory Bail Not Available For Offences Under UAPA Under Any Circumstance: Kerala High Court
Case Title: Ahammedkutty Pothiyil Thottiparambil v Union of India & Anr
Citation: 2023 LiveLaw (Ker) 346
The Kerala High Court held that exclusion of application of Section 438 CrPC to cases under the Unlawful Activities (Prevention) Act, 1967 is absolute and thus no application for anticipatory bail is permissible for offences punishable under the UAPA under any circumstances.
A Division Bench of Justice P.B Suresh Kumar and Justice C.S Sudha added that if it were interpreted differently and anticipatory bail was allowed, it would create an absurd situation where accused individuals could get anticipatory bail unconditionally, while regular bail would be subject to specific conditions.
"If the scheme of the UAP Act is that no person accused of an offence punishable under Chapter IV and VI of the UAP Act shall be released on bail unless the twin conditions referred to in subsection (5) of Section 43D are satisfied, there cannot be any doubt that the Statute does not contemplate grant of anticipatory bail to accused under any circumstance whatsoever, for if the provision is interpreted to hold that the Statute does not bar absolutely the application of Section 438 of the Code, in the absence of any restriction in the Statute in the matter of granting anticipatory bail, it would lead to an anomalous and absurd position that anticipatory bail can be granted to a person accused of an offence punishable under the UAP Act unconditionally and restrictions would apply only in the matter of claiming regular bail."
Case Title: Diamond Crushers v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 347
The Kerala High Court observed that the legal fiction created by Section 7E of the Kerala Land Reforms Act, 1963 (KLR Act) makes the purchaser a tenant, and the term 'tenant' has a wider definition, which includes a deemed tenant.
Justice T.R Ravi added that the Section starts with a non-obstante clause, which means it prevails over any other provision in the Act.
"As per Section 7E, the fiction created is to deem a purchaser as a tenant. The purchase can be of land of any nature. There is no requirement that the land should be paddy land where cultivation is being carried out. The fiction does not create a “cultivating tenant” as sought to be contended by the respondents based on the Certificate of Title."
Case Title: Santha Kumari v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 348
No one else can give to the ward all that a mother can give to her, said the Kerala High Court while uniting a differently abled child with her mother.
The Division Bench comprising Justice P.B. Suresh Kumar and Justice C.S. Sudha invoked parens patriae jurisdiction to ensure that the child is not left "at the mercy of others".
Other Significant Developments This Week
Kerala Court Convicts Man For Permitting Minor Brother To Ride Motorcycle
Case Title: State v. Roshan Shiju
A Kerala Court recently sentenced a person to pay a fine of R. 34,000/- and simple imprisonment till the rising of court, for permitting his minor brother to ride his motorcycle that too without displaying the registration mark on the front and back side of the vehicle.
The Ernakulam Additional Chief Judicial Magistrate Naina K.V. passed the order and added that the registration of the vehicle would be cancelled for a period of 12 months, and that the license of the accused would stand cancelled for three months.
Kerala Police Officer Suspended For Assaulting Lawyer
The City Police Commissioner, Ernakulam, has suspended trainee Sub-Inspector K Saiju of Ernakulam North Police Station for assaulting a lawyer.
Saiju was alleged to have assaulted Advocate Srinath C.V. and his friend on July 13, 2023. Saiju allegedly hurled abusive words against the lawyer, as well.
Another lawyer, Advocate Sreekanth, was also alleged to have been beaten by the said police officer on July 8.
Case Title: State v. Anilkumar & Ors.
A Kerala Court recently acquitted four auto rikshaw drivers who were accused of threatening and harassing a woman for hailing an Uber Taxi at a railway station.
The Judicial First Class Magistrate-II Balram M.K. acquitted the accused persons on noting that the prosecution had failed to prove that they committed the offences alleged against them or acted in furtherance of common intention.
New Chief Justices Appointed In High Courts Of Gujarat, Kerala, Telangana And Odisha
New chief justices have been appointed in the High Courts of Gujarat, Kerala, Telangana, and Odisha.
The President of India has, after consultation with the Chief Justice of India, appointed the judges.
Case Title: State v. Anoop
A Kerala Court recently held that merely holding a woman's hand and threatening to kill her would not attract the offence of assault or criminal force to outrage a woman's modesty under Section 354 IPC.
The Judicial First Class Magistrate II Aluva Santhosh T.K., observed that in order to commit the offence under Section 354 IPC, it would have to be proved that the accused used criminal force or assaulted a woman either with an intention to outrage her modesty or with the knowledge that it was likely that he would thereby outrage her modesty.
"Mere assault or criminal force does not amount to an offence. The culpable intention to outrage the modesty of the victim is to be proved. Mere holding PW1’s hand and threatened her that he would kill her will not attract offence under Section 354 of IPC," the Court stated.
Case Title: Mount Zion College of Engineering, Kadamanitta v. Dr. Divya S. Iyer
The Kerala High Court recently held that a contempt petitioner cannot be insisted upon to provide the age and name of the father, mother, or husband of the respondent in the contempt case.
The Single Judge Bench of Justice V.G. Arun passed the Order on finding merit in the contention advanced by the petitioner's counsel that as per Rule 5(a) of the Contempt of Court Rules, the contempt petitioner is only required to provide the name, occupation and full address of the respondent.
Case Title: Navya Haridas v. State of Kerala & Ors.
The Kerala High Court on Thursday stayed the Kozhikode Municipal Corporation's proposal to pass a resolution on Uniform Civil Code.
Justice N. Nagaresh issued the interim order staying all further proceedings pursuant to the notice with the proposed resolutions issued by the Corporation, to the extent it permits consideration of the Agenda Item No.137 with regard to the Uniform Civil Code and Central Government.
Justice Dinesh Kumar Singh Sworn In As Judge Of Kerala High Court
Justice Dinesh Kumar Singh was sworn in as a Judge of the Kerala High Court today.
Justice Singh has been transferred from the Allahabad High Court following the Supreme Court Collegium's recommendation in this regard. The Collegium had rejected his request to be transferred to nearby States such as Delhi, Punjab & Haryana, Madhya Pradesh or Rajasthan.
Case Title: Yeshwanth Shenoy v. The Chief Justice, High Court of Kerala & Ors.
Advocate Yeshwanth Shenoy has moved a writ appeal in the Kerala High Court against dismissal of his plea challenging limited listing of cases before the bench of Justice Mary Joseph.
Single Bench of Justice PV Kunhikrishnan had, on June 9, 2023, dismissed his plea stating that no direction can be issued that a judge should hear a particular number of cases in a day. "As per Rule 92 of Rules of the High Court of Kerala, 1971, the Bench or Judge has the discretion to issue special or general directions regarding the posting of cases assigned to him/her by the Chief Justice," it had observed.
In this appeal, Shenoy claims that his plea was on the issue of the 'listing of cases' being limited to 20 before the Court, and not 'hearing the same'. He submits that the Single Judge had confused 'listing' with 'hearing' and adjudicated on a non-issue.
Case Title: Zahhad & Ors. v. State of Kerala & Anr.
A plea has been moved in the Kerala High Court by the nation's first transgender parents seeking a direction to be issued to the Secretary, Kozhikode Corporation, to issue a new birth certificate for their child, showing the names of the couple as just 'parents', instead of 'father' and 'mother', respectively.
The matter was adjourned to next Thursday by the Single Bench of Justice N. Nagaresh after State's counsel pointed certain technical defects in the petition. Meanwhile, the bench asked the State counsel to find out what could be done to resolve the petitioners' "genuine grievance".
Case Title: Aslam Ahammed S.R. & Ors. v. State of Kerala & Ors.
After several residents of Pothencode in Thiruvananthapuram District approached the Kerala High Court against nuisance created due to operation of a BEVCO (Kerala State Beverages (Manufacturing & Marketing) Corporation) outlet in their area, Excise Commissioner Mahipal Yadav has issued an order directing either relocation or closure of the outlet.
Govt pleader Jacob E.Simon informed Justice Devan Ramachandran that the outlet will be removed from the area within a month.
Case Title: C. H. Muhammed Koya Memorial Charitable Centre v. State of Kerala & Anr.
A charitable trust claiming to own a fleet of ambulances has moved the Kerala High Court challenging the Transport Authority's decision to implement uniform colour code on all ambulance vehicles in the State.
With effect from January 1, all new ambulances in Kerala are painted white and comply with other stipulations. So far as old ambulances are concerned, the Authority had decided to implement the colour code on them as and when the vehicle is produced for renewal of fitness certificate.
Justice Ashish Jitendra Desai Takes Oath As Chief Justice Of Kerala High Court
Justice Ashish Jitendra Desai took oath as the Chief Justice of the Kerala High Court today.
Kerala Governor Arif Mohammed Khan administered the oath of office to the new Chief Justice, at a ceremony held at Raj Bhavan.
Chief Justice Desai is presently the 38th Chief Justice of the Kerala High Court.