Kerala High Court Weekly Round-Up: September 5 - September 11, 2022

Nominal Index [Citation 2022 LiveLaw(Ker) 473-479]

Abdul Majeed & Anr v. P.V. Prajosh & Ors. 2022 LiveLaw (Ker) 473

 Sreejith T. v. The Manager, A.M. Upper Primary School & Ors, and Asha P. Vasudevan v. State of Kerala & Ors. 2022 LiveLaw (Ker) 474

Abdul Sathar & Ors. v. Union of India & Ors 2022 LiveLaw (Ker) 475

 Shinas A. Firdaus v. Union of India & Ors and D. Pradeep Kumar v. Union of Indian & Ors. 2022 LiveLaw (Ker) 476

Arun v. State of Kerala & Anr. 2022 LiveLaw(Ker) 477

Baby Letha K. v. State of Kerala & Anr. 2022 LiveLaw (Ker) 478

Brinda & Ors v. Muktha K.N. 2022 LiveLaw (Ker) 479

Judgments/ Orders This Week

Evidence To Be Liberally Construed In Benevolent Legislations: Kerala High Court

Case Title: Abdul Majeed & Anr v. P.V. Prajosh & Ors.

Citation: 2022 LiveLaw (Ker) 473

The Kerala High Court recently held that in the case of benevolent legislations, such as the Motor Vehicles Act, evidence must be evaluated in a liberal manner, without insisting on an extreme form of 'preponderance of probabilities and possibilities'.

"It is the trite law that 'preponderance of probabilities and possibilities' is the rule of evidence to be applied while querying proof of allegations involved in civil cases. When coming to benevolent legislations, the rule of evidence is nothing but 'preponderance of probabilities and possibilities' and in such cases, the evidence shall be evaluated in a liberal manner without insisting for the extreme form of 'preponderance of probabilities and possibilities'", the Court observed.

In this light, Justice A. Badharudeen observed that when a person who had been working as a cleaner in a lorry died, it wouldn't always be possible to adduce documentary evidence to prove his job as a cleaner, and in such circumstances, the available evidence ought to be liberally construed.

Kerala Education Rules | Teachers Working On Leave Vacancy Do Not Have Preferential Right Of Appointment To Permanent Vacancy: High Court

Case Title: Sreejith T. v. The Manager, A.M. Upper Primary School & Ors, and Asha P. Vasudevan v. State of Kerala & Ors.

Citation: 2022 LiveLaw (Ker) 474

The Kerala High Court on Friday held that regularization of appointments made in leave vacancies, in preference to their juniors, could be only be availed by teachers who had been 'relieved' as per Rule 49 or Rule 52 or on account of termination of vacancies and later accommodated in leave vacancies, in terms of Rule 52 of the Kerala Education Rules.

The Division Bench comprised of Justice P.B. Suresh Kumar and Justice C.S. Sudha while observing so, further went on to hold that when a person, who had been appointed on there having arisen a leave vacancy, and thereafter was permitted to continue without break during the extended period of leave, there would not have arisen any occasion for such a person to be 'relieved'. In such a scenario, he/she could not be said to be a 'claimant' in terms of Rule 51A of Chapter XIVA of the Rules, and thus would not have any preferential right of appointment, either.

Owners & Manufacturers Liable For Illegal Modification Of Vehicles; Not Shopkeepers: Kerala High Court Opines Prima Facie

Case Title: Abdul Sathar & Ors. v. Union of India & Ors

Citation: 2022 LiveLaw (Ker) 475

The Kerala High Court recently held that as per the provisions of the Motor Vehicles Act and the Central Motor Vehicle Rules, the liability for alteration of vehicles is on the owner or manufacturer of the vehicle and not on the shopkeeper.

Justice Amit Rawal, while holding so, observed that in the instant case, the notices issued by the Road Transport Office, Alappuzha, to the petitioner-shopkeepers were without jurisdiction, and hence, the Court could exercise its writ jurisdiction over the same.

Public Sector Banks Can Seek Look Out Circulars Against Defaulters Only If Detrimental To Economic Interest Of India: Kerala High Court

Case Title: Shinas A. Firdaus v. Union of India & Ors and D. Pradeep Kumar v. Union of Indian & Ors.

Citation: 2022 LiveLaw (Ker) 476

The Kerala High Court recently held that the public sector banks can request for opening of Look Out Certificates (LOC) against defaulting account holders, only if the departure of the defaulter would be detrimental to the economic interest of India or it would not be in the larger public interest.

Justice V.G. Arun, while holding so, went on to observe that the Office Memorandums (OMs) do not empower the banks to originate Look Out Circulars, infringing the petitioner's liberty, as long as their movement to the foreign country is not detrimental to the economic interest of India or is against the larger public interest.

Bail Can't Be Denied By Ignoring Basic Tenets Of Criminal Jurisprudence Merely Because Accused Was Earlier Released On Bail By Incompetent Court: Kerala HC

Case Title: Arun v. State of Kerala & Anr.

Citation: 2022 LiveLaw(Ker) 477

The Kerala High Court on Wednesday granted bail to a man accused of smothering and electrocuting his wife to death with an observation that merely because he was earlier released on bail by a court of incompetent jurisdiction would not be a reason keep him in custody, ignoring the basic tenets of criminal jurisprudence that an accused is presumed to be innocent until proven guilty.

"The process and the manner in which the petitioner was granted bail initially, though certainly perverse and against law, the basic principles of grant of bail in a criminal trial cannot be ignored, despite the above illegality brought about by a wrong order," Justice Bechu Kurian Thomas observed.

Kerala Education Rules | Teacher Re-Appointed In Lower Category After Retrenchment Not Entitled To Pay Akin To Previous Post: Kerala HC

Case Title: Baby Letha K. v. State of Kerala & Anr.

Citation: 2022 LiveLaw (Ker) 478

The Kerala High Court on Wednesday, observed that a teacher who is relieved on account of reduction in the number of posts and re-appointed in a lower category would not be entitled to claim the pay and allowances applicable to the higher category in which he/she was earlier working.

The Division Bench comprising of Justice P.B. Sureshkumar and Justice C.S. Sudha, while rejecting the contention of the appellant that she was entitled to the pay and allowances applicable to the Headmistress, for the period during which she was working as Lower Primary School Teacher on her re-appointment in another school as LP School teacher, further observed that "the rule is intended only for granting pay protection to retrenched teachers on re-appointment in the same cadre and the same scale of pay and it does not enable a teacher who is relieved on account of reduction in the number of posts and re-appointed in a lower category to claim the pay and allowances applicable to the higher category in which he/she was earlier working".

Property Dispute Between Mother & Child Does Not Fall Under Explanation (c) To S.7(1) Family Courts Act, Civil Court Jurisdiction Not Barred: Kerala HC

Case Title: Brinda & Ors v. Muktha K.N.

Citation: 2022 LiveLaw (Ker) 479

The Kerala High Court recently held that in order to attract Clause (c) of explanation to Section 7(1) of the Family Courts Act, it must be satisfied that a suit or proceedings for an order or injunction should be in circumstances "arising out of a marital relationship", and the dispute should be one with respect to the properties of such 'parties to marriage'.

The provision states that a Family Court shall exercise jurisdiction in respect of suits and proceedings between the parties to a marriage with respect to the property of the parties or of either of them.

Thus, Justice MR Anitha held that a property dispute between a mother and her children cannot be included under Clause (c) of explanation to Section 7(1) of the Family Courts Act, for it is a civil dispute and does not involve any questions regarding the marital status or validity of marriage and as a consequence, it cannot be said that jurisdiction of Civil Courts is barred in case of such dispute between a mother and child.

Other Significant Developments 

German National Volunteering In India Moves Kerala High Court Alleging Sexual Harassment By NGO's General Secretary, Notice Issued

Case Title: xxxxxx v. Union of India & Ors.

The Kerala High Court, on Tuesday, issued notice on a plea moved by a German national seeking initiation of criminal proceedings against the General Secretary of Sister Hatune Foundation, Asia Sector, for various criminal offences committed by him, including the offence of Sexual Harassment.

Justice N. Nagaresh has also stayed the operation of the Exit Permit which was issued to the German national, who was working as a volunteer teacher at the NGO, till 23rd September.