Rules

1. Rule of Tender age 
1. Section 6 of HAMA 1956 - father is first natural guardian followed by mother, in case child below 5y, the custody shall ordinarily with mother
2. Rule of Lenity
1. Ambiguity must be decided in favour of the accused. - Principle of statutory construction 

CPC - Order IX Rule 13

 

Important Points

1. Defendant refused to accept summons issued in the suit.
2. After the suit was decreed ex-parte, execution proceedings were initiated.
3. Sub-Rule (5) of Order V Rule 9 of CPC - states inter alia that if defendant or his agent had refused to take delivery of the postal article containing the summons, the court issuing the summons shall declare that the summons had been duly served on the defendant.
4. Section 27 of General Clauses Act, 1897 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post.

Case Law

1. Alavi Haji Vs palapetty Muhammed AIR 2007 SC (Supp) 1705
1. if notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in-station" due service has to be presumed.
2. Jagdish Singh Vs natthu Singh 
3. state of MP Vs Hiralal
4. V Raja Kumari vs P.Subbaram Naidu

Upper Age limit - Appointment to Public Post

 

Important Points

1. SC has held that provision relating to upper age limit should be construed as mandatory and not directory.
1. Making them directory would mean that the authority is given unbridled power in giving relaxations to person of their choice.
2. That is impermissible as per the constitutional scheme, as the appointment to the public post must be accordance with A14 and A16
3. there should not be scope of arbitrary selection by unfettered discretion being vested in the authorities.
2. Eligibility criteria should be uniform and there cannot be scope of arbitrary selection by unfettered discretion vested with authorities.

Article 142 of Constitution of India

 

Statue

Important Points

1. Plenary Jurisdiction of SC to impart complete justice under A142 
2. A142 cannot ipso facto be limited or restricted by ordinary statutory provisions
3. In absence of an express provision akin to section 482 CrPc conferring powers on SC to abrogate and set aside criminal proceedings, the jurisdiction exercisable u/s A142 of constitution embraces this court with Scorpius power to quash criminal proceedings also, so as to secure complete justice.
4. Overarching objective of sentencing in the criminal justice system
1. sublime philosophy of maintenance of peace of the collective and that the rationale of placing individual behind bars is aimed at his reformation.
5. Powers u/s 142 which have wide amplitude ought to be exercised carefully in context of quashing criminal proceedings
1. Nature and effect of the offence on the conscious of the society
2. seriousness of the injury, if any
3. Voluntary nature of compromise b/w the accused and the victim
4. Conduct of the accused persons, prior to and after the occurrence of the puported offence and/or other relevant consideration.

Party In Person

 

Statue

1. Advocates Act
1. Section 30 - Right of advocate to practise  - Subject to the provisions of this Act, every advocate whose name is entered in the 3[ State roll ] shall. be entitled as right to practise throughout the territories to which the act extends
1. in all courts including the Supreme Court
2. before any tribunal or person legally authorised to take evidence
3. before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.
2. Section 33 - Advocates alone entitled to practise, NO person can be said to be entitled to practise in any court, unless he is enrolled as an advocate under this act.
3. Section 32 - Power of court to permit appearances in particular cases, discretionary power to permit, or not permit such a person who is NOT enrolled as an Advocate to appear before it.
2. Uttarakhand Party in Person Rules 2020
1. Bestows discretionary power on the court to permit or not to permit a party to appear in person and to argue his or her case.

Important Points

1. Discretion vested by Advocates Act on court to permit or not to permit a party to appear in person and to argue the case.
2. It is NOT the RIGHT of a person other than an enrolled advocate to appear and argue before the court. 

Arguments for Party In Person

1. No faith in any of the counsel of HC and would not like any counsel to be appointed by Court 
2. his advocates are draged into needless controversies by those in power
3. Knowledge of law, his erudite arguments his critical analysis of the law and facts have been lauded by a few legal fora.

Case Laws

1. Goa Antibiotics and Pharmaceuticals Ltd Vs R.K Chawala & 9 (2011) 15 SCC 449
1. It is not the right of a person, other than an enrolled advocate, to appear and argue before the court, but it is a discretion vested by the Act on the Court to permit or not to permit a party to appear in person and to argue the case.