HIMACHAL PRADESH HC: ORDER 9 RULE 7 CPC | APPLICATION FOR SETTING ASIDE EX-PARTE ORDER CAN BE ENTERTAINED ONLY IF FILLED BEFORE CONCLUSION OF ARGUMENTS - The Daily Guardian
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HIMACHAL PRADESH HC: ORDER 9 RULE 7 CPC | APPLICATION FOR SETTING ASIDE EX-PARTE ORDER CAN BE ENTERTAINED ONLY IF FILLED BEFORE CONCLUSION OF ARGUMENTS

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HIMACHAL PRADESH HC: ORDER 9 RULE 7 CPC | APPLICATION FOR SETTING ASIDE EX-PARTE ORDER CAN BE ENTERTAINED ONLY IF FILLED BEFORE CONCLUSION OF ARGUMENTS

Recently, the Himachal Pradesh High Court in the case Surender Kaur v Shri Jagtendra observed while adjudicating on an application seeking to set aside an ex-parte order, observed that an application under Order 9 Rule 7 CPC can only be entertained if it is being filed before the conclusion of arguments.

The bench comprising of Justice Sandeep Sharma observed that after having perused provisions contained under Order 9 Rule 7 CPC, this Court finds that application for setting aside ex-parte order can only be entertained, if it is filed before the conclusion of the arguments. However, any application filled after the conclusion of the arguments is not maintainable and, in that eventuality, person being aggrieved on account of proceeded exparte order has a remedy to file appropriate proceedings under Order 9 Rule 7 CPC praying therein to set-aside ex-parte decree.

Further, the petitioner was aggrieved by rejection of his Order 9 Rule 7 application by the Civil Judge in a suit against him seeking mandatory injunction, restraining him from interfering with the suit land.

It was observed that the defendant (original plaintiff) informed the Court that the Petitioner was proceeded ex-parte after he put in appearance in the court on October 9, 2020, but failed to appear thereafter. Also, it was submitted that the application under Order 9 Rule 7 was moved post conclusion of final arguments, before pronouncement of final judgment.

The same application was dismissed by the High Court on the ground that it is not maintainable on account of its being filed after conclusion of the hearing.

Accordingly, the High Court concurred with the view taken by the civil court. Placing reliance on the Apex Court’s judgment in Arjun Singh v. Mohindra Kumar and Ors., it held that once case is finally heard and posted for judgment, application, if any, for setting aside ex-parte order is not maintainable.

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Legally Speaking

RBI Directed Mahindra & Mahindra Financial Services To Cease Recovery Through Outsourcing Arrangements

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The Reserve Bank of India (RBI) issued a press release on 22.09.2022., wherein directing Mahindra & Mahindra Financial Services Ltd. (MMFSL), Mumbai, to immediately cease carrying out any recovery or repossession activity through outsourcing arrangements, till further orders of the court. Therefore, the MMFSL may continue to carry out recovery or repossession activities, through its own employees. Further, it was stated that the action was based on certain material supervisory concerns observed in MMFSL, with regard to the management of its outsourcing activities.
Background of the Case
Mahindra & Mahindra Financial Services Ltd. (MMFSL) is a part of Mahindra & Mahindra group of companies and is at present led by Mr. Anand Mahindra. Thus, MMFSL is a Non-Banking Financial Company (NBFC), which provides Vehicle and Asset Finance to rural Indians and finances the purchase of new and pre-owned tractors, construction equipment, commercial vehicles and two wheelers.
Recently, it is surfaced in the news that a pregnant woman had died after she was allegedly mowed down under the wheels of a tractor by a recovery agent of MMFSL in Hazaribagh, Jharkhand. However, a loan has been taken by the deceased woman’s father from MMFSL and the outsourced recovery agents were attempting to recover the same while the incident had taken place.

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Supreme Court: Imposed Rs 5 Lakh Cost On Tamil Nadu Govt For Filling Unnecessary Plea Challenging Pension Of Employee

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Supreme Court

The Supreme Court in the case The Secretary to Government and another vs PG Venugopal observed and has imposed an exemplary cost of Rupees 5 lakhs on the State of Tamil Nadu for filing of an unnecessary Special Leave Petition.
The bench comprising of Justice MR Shah and the Justice Krishna Murari observed and has held that it is required to be noted that as such the State ought not to have filed the present Special Leave Petition. Despite the fact that the issue with respect to entitlement of pension by the respondent was concluded up to this Court, thereafter, still the state had an audacity to contend that the respondent was not entitled for the pension.
However, the present issue is related to the pensionary entitlement of an employee. In an earlier round of litigation, it has been confirmed by the Supreme Court the pensionary entitlement of the employee. It stated that when the stage for disbursing the arrears came, the State took up a plea that the employee was not entitled to pension. By its judgement in February 2022, the Madras High Court rejected the State’s contention wherein observing that the Department “has misappropriated the money of the employee by depriving him of his pension”.
The High Court division bench observed that the act of the appellants in not granting arrears of pension from 01.04.2009 is arbitrary. Once the entitlement of pension of the employee is decided and the appellants are bound to pay the same. Thus, challenging the same, the State approached the Supreme Court, which took an extremely critical view of the State’s conduct.
It was observed by the Supreme Court that once the issue was concluded up to this court that the respondent is entitled to pension, thereafter, it was not open for the State to again contend post 2009 when the arrears were to be paid that the respondent is not entitled for the pension. Therefore, the aforesaid stand is just in teeth of order passed by this Court. In light of the matter, there is no substance in the present Special Leave Petition, the same deserves to be dismissed and is accordingly dismissed with an exemplary cost, which is quantified at Rs. 5,00,000/-.
The court stated that the cost of Rs. 5,00,000/-, to be deposited by the State within a period of four weeks from September 19 with the Registry of the Supreme Court and on such deposit and the same is to be transferred to the Mediation and Conciliation Project Committee (MCPC), Supreme Court of India.

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Supreme Court Allowed Withdrawal Of Petition Challenging Provisions Of J&K Reservation Act 2005

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Supreme Court

The Supreme Court in the case Munilal and Ors Versus The State Of Jammu And Kashmir And Anr observed and has allowed to withdraw a petition seeking to declare certain provisions of the Jammu and Kashmir Reservation Act, 2005 and related rules as unconstitutional and illegal.
The bench comprising of Chief Justice of India UU Lalit, Justice Ravindra Bhat and Justice JB Pardiwala was prompted to do so after the Court was informed of the developments in the case which took place subsequent to the filing of the petition.
The bench stated that in view of the developments which have taken up since the filing of the writ petition, the court permit the petitioners to withdraw the petition with further liberty to take or initiate appropriate proceedings in manner known as per the law.
During the hearing, it was submitted by ASG Vikramjit Banerjee that the petition filed in 2006, pertains to provisions on Reservation in Jammu and Kashmir.
The bench observed that as a result of Jammu and Kashmir Reorganisation Act, 2019, the situation has drastically changed. Thus, today it’s a Union Territory and What is prevalent in other Union Territories should apply, ipso facto. One, that’s a matter of policy.
It was observed by the Court that amending a petition from 2006 would be a tough and convoluted task.
The Court stated that Whatever you have filed in 2006, cannot be a basis for amendments now. However, What will you amend in a petition from 2006? The court will grant you liberty to withdraw.
Accordingly, the Court disposed of the plea, with these observations.

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ARTIFICIAL INTELLIGENCE, ITS SECURITY AND REGULATION

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23rd October,2019 was a red letter day in human history when American Special Operations Forces carried out a daring raid codenamed “Operation Kayla Mueller” that killed the “crying, whimpering, screaming” self-proclaimed Caliph of ISIS Abu Bakr al-Baghdadi in his own secret hideaway in the outskirts of Barisha, in Northwest Syria. Startlingly, an explosive ordnance disposal military robot had participated in the mission! On 31st July, 2022, the Americans eliminated the dreaded Al-Qaeda Chief Ayman al-Zawahiri deep inside the heart of Kabul with the aid of an MQ-9B drone that launched two Hellfire R9X missiles with pinpoint Artificial Intelligence (AI) precision. And this very year itself, around 110 incidents of AI guided drones from Pakistan, the epicentre of international terrorism, clandestinely violating Indian airspace to para-drop arms, explosives and drugs to terrorists and separatists firmly embedded on Indian soil have alarmingly come to light.
AI has come to stay and is predicted to contribute a staggering 15.7 trillion US Dollars to the global economy by the year 2030! It has wormed its way into every conceivable sphere of human activity, and the law is no exception! The prodigious 17th century German polymath Gottfried Leibniz, widely recognised as the grandfather of AI, who was himself a distinguished lawyer, aptly remarked, “It is unworthy of excellent men to lose hours like slaves in the labour of calculation which could safely be relegated to anyone else if machines were used.” The legal profession, historically tradition bound and labour intensive, is on the cusp of an unimaginable transformation in which AI has the potentiality to affect the manner and mode in which the legal world functions. Very much like e-mail drastically changed the way we do business, AI would become omnipresent – an indispensable tool for lawyers! The legal sector was one of the first to adopt AI with some leading law firms using AI platforms in some form or the other since the year 2005. A cover story published in the ABA Journal Magazine, the flagship publication of the American Bar Association, elucidiated, “Artificial intelligence is changing the way lawyers think, the way they do business and the way they interact with clients. Artificial intelligence is more than legal technology. It is the next great hope that will revolutionize the legal profession.” Instead of wading through piles of papers, lawyers can now deal with terabytes of data and hundreds of thousands of documents. The eminent American Law Professor Daniel Martin Katz has effectively utilized legal analytics and machine learning to create a highly accurate predictive model for the outcome of American Supreme Court decisions. Sometimes billed as the first robot lawyer, ROSS is an advanced online research tool using natural language processing powered by IBM Watson that provides legal research and analysis and can reportedly read and process a phenomenal million legal pages per minute.
In February, 2018, a group of leading academics and researchers published a report, raising alarm bells about the increasing possibilities that rogue states, criminals, terrorists and other malefactors could conceivably exploit AI capabilities to cause wide spread irreparable damage. Back in 2017, the legendary physicist, Stephen William Hawking, cautioned that the emergence of AI could be the “worst event in the history of our civilization”. To date, no industry standards exist to guide the secure development and maintenance of AI systems. On 3rd February, 2022, U.S. Senator Ron Wyden along with Senator Cory Booker and Representative Yvette Clarke introduced the Algorithmic Accountability Act of 2022, a landmark bill H. R. 6580 in the U.S. House of Representatives to bring new transparency and oversight of software, algorithms and other automated systems. Wyden explained, “Our bill will pull back the curtain on the secret algorithms that can decide whether Americans get to see a doctor, rent a house or get into a school. Transparency and accountability are essential to give consumers choice and provide policymakers with the information needed to set the rules of the road for critical decision systems.” Sen. Booker further explained, “As algorithms and other automated decision systems take on increasingly prominent roles in our lives, we have a responsibility to ensure that they are adequately assessed for biases that may disadvantage minority or marginalized communities.” And Rep. Clarke struck an optimistic note, “With our renewed Algorithmic Accountability Act, large companies will no longer be able to turn a blind eye towards the deleterious impact of their automated systems, intended or not. We must ensure that our 21st Century technologies become tools of empowerment, rather than marginalization and seclusion.”
India currently has no laws or government-issued guidelines regulating AI. Instead, the government developed a number of national strategies or road maps related to AI in 2018. On 1st February, 2018, the Union Finance Minister and my dear friend and class mate from my Law Faculty days Arun Jaitley stated that the apex public policy think tank NITI Aayog “would lead the national programme on AI”. Thereafter, the Committee of Secretaries held a meeting on 8th February, 2018, and tasked NITI Aayog with formulating a National Strategy Plan for AI “in consultation with Ministries and Departments concerned, academia and private sector.” On 4th June, 2018, NITI Aayog published a discussion paper on a National Strategy on Artificial Intelligence. On 27th July, 2018, the Government of India’s Committee of Experts released a Draft Protection of Personal Data Bill along with an accompanying report entitled “A Free and Fair Digital Economy Protecting Privacy, Empowering Indians”. The Bill was first introduced in the Lok Sabha on 11th December, 2019. It was then referred to a Joint Parliamentary Committee, which tabled its report in the Lok Sabha on 6th December, 2021. On 3rd August, 2022, the Government unilaterally withdrew the Bill. In a note circulated to MPs, the Union IT Minister Ashwini Vaishnaw explained the raison d’etre for withdrawal of the Bill, “The Personal Data Protection Bill, 2019 was deliberated in great detail by the Joint Committee of Parliament…on considering the report of the JCP, a comprehensive legal framework is being worked upon.” Thereafter, the Minister of State for IT Rajeev Chandrashekhar tweeted, “This will soon be replaced by a comprehensive framework of global standard laws, including digital privacy laws, for contemporary and future challenges and catalyse PM Narendra Modi’s vision of India Techade”.
Cyber-threat actors are becoming increasingly agile and inventive, spurred by the burgeoning base of financial resources and the absence of viable regulation – factors that often stifle innovation for legitimate enterprises. This threat transcends the periphery of any single enterprise or nation in what Pandit Jawaharlal Nehru described as “this one world that can no longer be split into isolated fragments.” There is an imperative need for transparent, incisive and thoughtful collaboration between academics, professional associations, the private sector, regulators and world governing bodies. Strategic collaboration will be more impactful than unilateral responses to address the issue of ethics and regulation in AI. Finally, I am highly emboldened to sound a note of caution by turning to the foreboding words of the renowned American AI researcher, blogger and exponent of human rationality Eliezer Shlomo Yudkowsky, “By far the greatest danger of Artificial Intelligence is that people conclude too early that they understand it.”

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Legally Speaking

Who will be next APTEL Chairman ?

Tarun Nangia

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Who will be next APTEL Chairman ?

Justice Hemant Gupta, currently serving as Judge, Supreme Court of India may be appointed as the next Chairman of the Appellate Tribunal for Electricity (APTEL). Justice Hemant Gupta’s tenure as Judge of Supreme Court comes to an end on October 16th.

Justice Gupta enrolled as an advocate in July 1980 and started practice in the District Court of Chandigarh. He entered in the High Court of Punjab and Haryana and worked on Civil, Labour, Company and Constitutional matters. In 1997 he was appointed Additional Advocate General of Punjab and elevated as a Judge of High Court of Punjab and Haryana on 2 July 2002. Justice Gupta was transferred to the Patna High Court in February 2016,[1] thereafter took over the charge of acting chief justice of the Patna High Court after the retirement of Justice Iqbal Ahmed Ansari on 29 October 2016. He was appointed the Chief Justice of the Madhya Pradesh High Court on 18 March 2017.In November 2018 he became Justice of the Supreme Court of India

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Delhi HC asks trial court to consider Sharjeel Imam’s bail plea for relief

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The Delhi High Court has instructed a trial court to first consider former JNU student Sharjeel Imam’s application for relief under Section 436-A CrPC on the grounds that he has been in custody for 31 months following a 2019 sedition FIR, in accordance with the Supreme Court’s directive to keep sedition cases on hold.

According to Section 436-A, a person might well be released on bail by the court after serving a sentence of up to one-half the maximum allowed for the offence against him up until the end of the trial.

Imam claims that because he has been imprisoned for more than a year and a half since his arrest in February 2020 and has served more than half of the maximum sentence of three years under Section 153A (promoting hostility among religious groups), he is entitled to the advantage of being released.

A speech that Imam delivered at Jamia Millia Islamia in 2019 is the subject of a charge against him that was filed at the New Friends Colony (NFC) Police station.

Justice Anoop Mendiratta asked the trial court to consider the Supreme Court’s order keeping the offence of sedition in abeyance when deciding whether to grant the applicant’s request for default bail on Monday (September 26), while permitting him to withdraw his application for regular bail in a 2019 sedition case.

Appearing for Imam, his counsel Ahmad Ibrahim told the judge that the trial court, while dismissing his bail plea, had only made observations against him with respect to offences under Section 153A and 124A (sedition) and opined that no case was made out under other offences.

The counsel argued that the only offence which now warrants consideration of the trial court during the hearing of bail plea is Section 153A as offence of sedition has been kept abeyance.

Special public prosecutor Amit Prasad told the court that Imam’s bail plea pending before High Court may be withdrawn in entirety, as it may not be appropriate to consider the application under Section 436A CrPC in a piecemeal with reference to Section 153A of IPC.

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