[2008 (1) TNCJ 1 (Mad)]

MADRAS HIGH COURT

BEFORE:
V. DHANAPALAN, J.
UNION OF INDIA REP. BY DIVISIONAL RAILWAY MANAGER ….Petitioner
Versus
THE PRESIDING OFFICER, CENTRAL GOVERNMENT
LABOUR COURT, CHENNAI & ANOTHER ….Respondents
[ W.P. No 40401 of 2002,. decided on 11 June, 2007]
th

(A) Constitution of India, 1950—Articles 226—Industrial Disputes Act, 1947—Section 33 (C)

(2)—Labour Court—Jurisdiction to entertain a claim petition under, after lapse of 10 years—
Unauthorized absence/absconding from duty from 14.7.1988 to 20.2.1990—Removal of Service—
Punishment—Confirmed by Central Administrative Tribunal—Attained finality—Claim petition for
back wages before Labour Court—Allowed—Legality of—Held, Award passed by the Labour Court
in adjudicating the dispute and issuing direction to pay the amount due is not in accordance with
law—Award is without jurisdiction—Unsustainable—Set aside—Liberty given to raise an industrial
dispute before the competent forum. (Paras 13 to 16)
(B) Industrial Disputes Act, 1947—Section 33 (C) (2)—Labour Court—Power under—Only to
interpret an award or settlement on which the claim is based—And it cannot adjudicate the dispute
of entitlement or basis of claim of workman. (Para 12)
Case law.—1995 (1) SCC 235; AIR 1970 SC 209; 2006 (5) SLR 297 (P&H); AIR 1973 SC
1227;Civil Appeal No. 5060 of 2005, decided on 15.12.2006 (SC)..
Counsel.—Mr. V.P. Rajendran, for the petitioner; Mr. L. Chandrakumar, for the respondent No. 2.
JUDGMENT
V. DHANAPALAN, J.—This writ petition is filed, challenging the award of the first
respondent/Labour Court, dated 25.06.2002, made in CCP No.30 of 1998.
2. The case of the petitioner is as follows :
2.1. It is a part and parcel of Southern Railway, a Central Government Organisation. The second
respondent joined the Railway Service as Assistant Station Master in the pay scale of Rs.330-560. After
completion of training, the second respondent took up independent duty on 05.11.1976 and, on 01.01.1983,
he was transferred to Madras Division from Madurai Division on mutual request and posted at Padalam
Railway Station. Thereafter, he was promoted to the grade of Rs.425-640 and transferred to Jolarpet
Junction, where he was promoted to the pay scale of Rs.455-700 with effect from December,1983, and,
once again, on personal request, he was transferred to Mambalam Railway Station in November,1985.
While so, he was issued transfer orders, transferring him from Mambalam Railway Station to Pudi Railway
Station, on administrative grounds and he was served with a relief memo on 13.07.1988. However, he
refused to accept the relief memo served to him and, thereafter, he was absconding from duty from
13.07.1988 to 17.06.1989.
2.2. Without joining duty at Pudi Railway Station on 13.07.1988, the second respondent
represented to the petitioner to retain him at Mambalam Railway Station and consequently to cancel his
transfer orders to Pudi Railway Station. By an order, dated 15.07.1988, the petitioner did not agree to his
plea and, instead, directed the second respondent to carryout the transfer orders. Thereafter, on a
representation, dated 17.08.1988, by the second respondent to grant him salary from 14.07.1988 onwards,
the petitioner, vide a letter dated 25.07.1988, replied that since he had not joined duty at Pudi Railway
Station, the question of payment of salary from 14.07.1988 did not arise and that he was entitled to receive
salary from 06.07.1988 to 13.07.1988. It was also stated that even though the disbursement of salary for
the period from 06.07.1988 to 13.07.1988 would normally have been made only if he had joined Pudi
Railway Station, it was disbursed to him, due to his request. Subsequently, the petitioner commenced
disciplinary action against the second respondent, by issuing a charge sheet, dated 06.07.1989 under
Rule 9 of the Railway Servants (Discipline and Appeal) Rules,1968, for unauthorised absence from
service. The second respondent refuted the charges by a letter, dated 18.07.1989. There- after, a detailed
inquiry was conducted by a duly designated Enquiry Officer.
2.3. The Enquiry Officer submitted his report, holding the charges as proved. The findings of the
Enquiry Officer were accepted by the Disciplinary Authority and, by an order dated 15.02.1990, the second
respondent was removed from service with effect from 20.02.1990.
2.4. Against the said removal, the second respondent filed an appeal before the Additional
Divisional Railway Manager, Madras, and it was dismissed. The revision petition filed by the second
respondent was also dismissed. Thereafter, the second respondent filed an original application before
the Central Administrative Tribunal and the said Tribunal, by an order, dated 20.04.1995, upheld the
order of removal and dismissed the application.
2.5. Thereafter, the second respondent filed a claim petition before the Central Government Labour
Court, Chennai, hereinafter referred to as “the Labour Court”, namely, the first respondent herein, claiming
back wages for the period from 14.07.1988 to 20.02.1990.
2.6. The petitioner herein filed a counter statement, contending, inter alia, that the claim for back
wages, having been made after 10 years, was barred by limitation.
2.7. However, the Labour Court, by the order impugned, allowed the claim petition and directed the
petitioner to pay a sum of Rs.49,748/-, being back wages from 14.07.1988 to 20.02.1990.
2.8. Hence, this writ petition.
3. The case of the second respondent is that he was prevented from discharging duties by serving
an order, dated 14.07.1988, and the Labour Court, taking cognizance of the said letter, which could not be
disputed by the petitioner, had passed the award, taking into account the factual position by proper
appraisal of evidence. The confirmation of penalty of removal by the Tribunal does not have any
overlapping effect in regard to the claim petition, as the disciplinary proceedings are entirely different from
that of the claim petition. His absence was not unauthorised and, therefore, the basis for the penalty is also
unsustainable. The contention that the claim is time barred and without recourse to raising an industrial
dispute is an afterthought and it also suffers for want of application of mind, since there is a statutory
protection for making a claim petition under the Industrial Disputes Act and the Rules. The other
reasons that had weighed in with the Labour Court are well within the ambit of the Rules and Regulations
and that of the statutory powers conferred upon it and the order impugned in this writ petition neither
suffers from any perversity nor any illegality, calling for any interference by this Court, and, therefore, this
writ petition is liable to be dismissed.
4. Learned counsel for the petitioner would contend that the second respondent, being a Station
Master, is not workman under the definition of Section 2 (s) of the Industrial Disputes Act and when it is a
clear case of the second respondent that he has not worked for the period from 14.07.1988 to 20.02.1990,
the petition for wages does not lie before the Labour Court and that the principle of “No work No wage”
should be applied to the case of the second respondent, as he was not inclined to join the transferred place.
Learned counsel would further contend that on the basis of the order of the Labour Court, the second
respondent once again filed O.A.No.1163 of 2004 before the Central Administrative Tribunal for the relief
of reinstatement with all consequential benefits and the same is pending and, further, the act of the
second respondent in initiating the proceedings before the Labour Court in respect of the subject-matter
already finalised by a judicial forum is purely an abuse of process of Court and barred by the principle of
res judicata and, therefore, the award of the Labour Court is liable to be set aside.
5. Per contra, learned counsel for the second respondent would contend that Section 33 (C) (2) of
the Industrial Disputes Act, 1947, does not stipulate a period of limitation and when it is well settled in
Nithyanand M.Joshi and another v. The Life Insurance Corporation of India and others, AIR 1970 SC
209, that the scheme of the Indian Limitation Act is that it only deals with applications to Courts and that
the Labour Court is not within the Limitation Act,1963, the argument of the learned counsel for the
petitioner regarding limitation has to be rejected. The learned counsel, relying on a decision of the Punjan
and Haryana High Court in Punjab Agro Industries Corporation Limited v. Chandersekar and others, 2006
(5) SLR 297 (P&H), would contend that while exercising jurisdiction under Article 226 of the Constitution
of India, this Court cannot sit in appeal over the findings of fact rendered by the Labour Court. He would
also rely on a decision of the Supreme Court in Workmen of Firestone Typre and Rubber Co. of India Pvt.
Ltd v. The Management and others, AIR 1973 SC 1227, wherein it was held that “Section 11-A now gives
full power to the Tribunal to go into the evidence and satisfy itself on both these points. Now the
jurisdiction of the Tribunal to reappraise the evidence and come to its conclusion ensures to it when
it has to adjudicate upon the dispute referred to it in which an employer relies on findings recorded by him
in a domestic enquiry. Such a power to appreciate the evidence and come to its own conclusion about the
guilt or otherwise was always recognized in a Tribunal when it was deciding a dispute on the basis of
evidence adduced before it for the first time”. Therefore, the Labour Court was correct in overlooking the
decision arrived at by the Central Administrative Tribunal, based on the evidences collected in the
domestic enquiry, since the impugned award was made with reference to the evidences adduced for the first
time before the Labour Court. The learned counsel also relied on a decision of the Supreme Court in
Niranjan Umeschandra Joshi v. Mrudala Jyoti Rao & Others in Civil Appeal No.5060 of 2005, dated
15.12.2006, to show that the appellate Court, while exercising its jurisdiction, would ordinarily not
interfere with the findings of fact arrived at by the trial Court, if the view taken by it is reasonable.
Accordingly, the learned counsel prays for dismissal of this writ petition.
6. I have heard the learned counsel for the petitioner and the second respondent and given my
thoughtful consideration to the rival submissions and also gone through the records.
7. The paramount questions which arise for consideration in this writ petition are, (i) whether the
Labour Court has jurisdiction to entertain a claim petition under Section 33 (C) (2) of the Industrial
Disputes Act ? and (ii) whether the claim petition is maintainable, after a lapse of 10 years ?
8. Admittedly, the second respondent was removed from service on 20.02.1990 on the charge of
unauthorised absence/absconding from duty from 14.07.1988 to 20.02.1990 and, against the said
punishment of removal from service, an appeal was filed and the appellate authority rejected the said
appeal. Thereafter, the revision petition, filed against the said appeal, was also dismissed. Pursuant to
the said revision, the second respondent filed O.A.No.1690 of 1992 before the Central Administrative
Tribunal, Chennai, which was dismissed on 28.04.1995, upholding the order of removal from service.
Therefore, a finality has reached on the disciplinary proceedings and the subsequent punishment imposed
on the second respondent.
9. With regard to the next question, whether the second respondent is entitled for the relief of pay
and wages from the period of his absence i.e., from 14.07.1988 up to the date of removal from service i.e.,
20.02.1990, the second respondent moved the Labour Court and an award was passed in the claim petition,
directing the writ petitioner to pay a sum of Rs.49,748/- towards back wages, as prayed for. The said
order, allowing the claim petition, has now been under challenge by the management/Railway
administration.
10. As already stated, the punishment of removal imposed on the second respondent has reached a
finality. Regarding the preliminary question raised in this Writ Petition as to whether the Labour Court is
competent to adjudicate the matter under Section 33 (C) (2) of the Industrial Disputes Act, it would be
appropriate for this Court to refer to a ruling of the Supreme Court in Municipal Corporation of Delhi v.
Ganesh Razak and Another, 1995 (1) SCC 235, wherein it was held as follows :
“12.The ratio of these decisions clearly indicates that where the very basis of the claim or the
entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or
recognition thereof by the employer, the dispute relating to entitlement is not incidental to the
benefit claimed and is, therefore, clearly outside the scope of a proceeding under Section 33 (C)
(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen’s entitlement
and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under
Section 33 (C) (2) of the Act. It is only when the entitlement has been earlier adjudicated or
recognised by the employer and thereafter for the purpose of implementation or enforcement
thereof some ambiguity requires interpretation that the interpretation is treated as incidental to
the Labour Court’s power under Section 33 (C) (2) like that of the Executing Court’s power to
interpret the decree for the purpose of its execution.”
11. In this case also, there being no earlier adjudication or recognition thereof by the employer, the
dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the
scope of a proceeding under Section 33 (C) (2) of the Act. Hence, the second respondent has to raise an
industrial dispute before the appropriate authority, which could be the appropriate forum to adjudicate the
matter of dispute with regard to wages.
 12. The power of the Labour Court under Section 33 (C) (2) extends only to interpret an award or
settlement on which the claim is based and it cannot adjudicate the dispute of entitlement or basis of claim
of workman. The prayer for adjudication or settlement of a disputed claim of a workman is not
maintainable under Section 33 (C) (2).
13. In view of the above settled legal position, the award passed by the Labour Court in adjudicating
the dispute and directing the petitioner to pay the amount due to its employee is not in accordance with law.
The only course available to the second respondent is to raise an industrial dispute before the competent
forum.
14. The points raised by the learned counsel for the petitioner, whether the second respondent is a
workman under Section 2 (s) of the I.D. Act and the delay in approaching the Court are all the matters to be
decided by the competent Adjudicating Officer. The petitioner management, in its counter
statement filed before the Labour Court, has stated that with regard to the claim of wages, the second
respondent has to raise an industrial dispute, thereby admitting that the second respondent is a workman
and he has to get the matter adjudicated before the appropriate forum.
15. I am not inclined to go into the said question at this stage. Since the scope of the Labour Court is
confined to Section 33 (C) (2) and in view of the ruling of the Supreme Court cited supra, the dispute with
regard to the claim of wages has to be raised before the appropriate authority. Therefore, the impugned
award of the Labour Court is without jurisdiction and unsustainable. Accordingly, the same is set aside.
16. Writ petition stands allowed, directing the second respondent to raise an industrial dispute
before the competent forum within a period of four weeks from the date of receipt of a copy of this order. It
is made clear that the period of pendency of the writ petition has to be excluded while calculating the
period of limitation, for entertaining the dispute. No costs.
Petition allowed.

[2008 (1) TNCJ 5 (SC)]

SUPREME COURT
BEFORE:
S.B. SINHA AND MARKANDEY KATJU, JJ.
JOSEPH AND ANOTHER …Appellants
Versus
STATE OF KERALA AND ANOTHER …..Respondents
[Civil Appeal Nos. 8061-8062 of 2001, decided on 10th May, 2007]
Kerala Private Forest (Vesting and Assignment) Act, 1971— Sections 2, 3, 8-A and 8-B—
Land purchased jointly—Partition— Appellants share was 23.5 acres of land—Question out of
23.5 acres, 14 acres vested in Government?—Forest Tribunal granted exemption in respect of 14
acres of land—High Court held that there was no evidence of cultivating the land—Finding of High
Court not correct—Impugned Judgment set aside—And matter remitted to High Court for afresh
consideration in accordance with law. (Paras 2, 8, 13 and 18)
Counsel.—Mr. T.L.V. Iyer, for the appellants; Mr. G. Prakash, for the respondents.
Important Point
The 1971 Act was enacted to provide for vesting the private forests with the Government in the
State of Kerala and for the assignment thereof to agriculturists and agricultural labourers for cultivation.
JUDGMENT
S.B. SINHA, J.—This appeal is directed against a judgment and order dated 16.11.1999 passed by a
Division Bench of the Kerala High Court in MFA No. 137 of 1989 whereby and whereunder the appeal
preferred by the respondents herein questioning the order dated 21.02.1979 passed by the Forest Tribunal,
Manjeri in O.A. No. 594 of 1976 was allowed.
2. The basic facts of the case are not in dispute:
 Appellants herein purchased 14 acres of land in Thenkara Village of Mannarghat taluk in the
District of Kerala. The said 14 acres of land was a part of 47.35 acres of land purchased jointly in the name
of the appellants, their father and uncle. There allegedly existed rubber plantation in the said land. Teak
and other trees had also been planted there. A partition in the family took place as a result whereof 23.5
acres of land out of 47.35 acres of land was allotted to the appellants and their father. A question arose as
to whether the said 14 acres of land out of total 23.5 acres vested in the State by virtue of the provisions of
the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for short “the 1971 Act”). As their right to
possession over the said land was questioned, the appellants filed an application before the Forest Tribunal
claiming exemption of the said land.
3. The question which arose for consideration before the Tribunal and consequently the High Court
was as to whether they had any intention to cultivate the land.
4. The 1971 Act was enacted to provide for vesting the private forests with the Government in the
State of Kerala and for the assignment thereof to agriculturists and agricultural labourers for cultivation.
5. Section 2 (a) of the 1971 Act defines the “appointed day” to mean the 10th day of May,
1971.”Owner” in relation to a private forest has been defined in Section 2(c) to include a mortgagee, lessee
or other person having right to possession and enjoyment of the private forest. The term “private forest”
has been defined in Section 2(f) to mean:
“(1) in relation to the Malabar district referred to in sub-section (2) of Section 5 of the State
Reorganisation Act, 1956 (Central Act 37 of 1956)—
(i) any land which the Madras Preservation of Private Forest Act, 1949 (Madras Act XXVII of
1949), applied immediately before the appointed day excluding—
(A) land which are gardens or nilams as defined in the Kerala Land Reforms Act, 1963 (1 of
1964).
(B) lands which are used principally for the cultivation of tea, coffee, cocoa, rubber,
cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of
such crops or for the preparation of the same for the market.
Explanation.—Lands used for the construction of office buildings, godowns, factories, quarters for
workmen, hospitals, schools and playgrounds shall be deemed to be lands used purposes
ancillary to the cultivation of such crops;
(C) lands which are principally cultivated with cashed or other fruit bearing trees or are
principally cultivated and any other agricultural crop and
(D) sites of buildings and land appurtenant to and necessary for the convenient enjoyment or
use of such buildings;
(ii) any forest not owned by the Government, to which the Madras Preservation of Private
Forests Act, 1949 did not apply, including waste lands which are enclaves within wooded
areas.
(2) in relation to the remaining areas in the State of Kerala any forest not owned by the
Government including waste lands which are enclaves within wooded areas.”
Section 3 of the 1971 Act provides that the private forest would vest in the government. Sub-
section (2) of Section 3 thereof, however, carves out an exception thereto stating that nothing contained
in sub-section (1) shall apply in respect of land comprised in private forests held by an owner under his
personal cultivation, as is within the ceiling limit applicable under the Kerala Land Reforms Act, 1963 or
any building or structure standing thereon or appurtenant thereto. The Explanation appended to sub-section
(2) of Section 3 includes cultivation of trees or plants of any species. Sub-section (3) of Section 3,
however, deals with a situation stating that sub-section (1) shall apply in respect of private forests held by
an owner under a valid registered document executed before the appointed day and intended for cultivation
by him, which together with other lands held by him to which Chapter III of the Kerala Land Reforms Act,
1963 is applicable, does not exceed the extent of the ceiling area applicable to him under Section 82
thereof.
6. The fact that the lands in question was purchased under a registered deed of sale dated
13.09.1966 is not in dispute. The lands were, therefore, held by the appellants prior to the appointed day
specified in the 1971 Act. According to the appellants, they planted teak, irul and maruthu trees on or
before 31.12.1970 covering an extent of 1.60 hectares, as would appear from grant of a new planting
licence granted by the Rubber Board. It further appears from a certificate dated 30.11.1999 that in the year
1972, they planted 1300 trees over an area of 2.83 hectares.
7. By reason of the 1971 Act, a forum for settlement of disputes has been provided in the form of
Tribunal constituted thereunder inter alia for resolution of disputes in regard to the questions such as
whether any private forest or portion thereof has been vested in the Government or not, or whether the land
in question is a private forest or not. The High Court has been conferred with the appellate power
thereunder.
8. An application appeared to have been filed by the appellants before the Forest Tribunal which
was marked as O.A. No. 594 of 1976 stating that 13.50 acres (5.46 hectares) of rubber had been planted.
The dispute was only in relation to the 14 acres of land. The said application was allowed by the
Tribunal by an order dated 21.02.1979 holding that the appellants have got title and possession thereto and
have been holding lands within the ceiling limits. The Tribunal granted exemption in respect of the land in
question in terms of Section 3(3) of the 1971 Act. It was held:
“8. It was contended for the petitioners that they are entitled to the exemption provided in Section
3(3) of the Act. The petitioners had obtained right over this property as per the registered
documents executed prior to 10.5.1971. In the circumstances of this case, it can also be held
that the property was obtained by the petitioners with the intention to cultivate the same. PW1 has
stated that besides the petition scheduled property he has got 3-1/2 acres of rubber plantation
and one acre of property where coconut, pepper, coffee, etc. are planted. He had a wife and 5
minor children as on 1.1.1970. His wife and minor children have also no other property.
According to PW 1 the second petitioner has got only 2 acres of rubber estate besides the property
obtained by him under Ext. A-1. The second petitioner had also a wife on 1.1.1970. She has no
other property. PW 1 has further stated that the third petitioner has also no property apart from
what was obtained under Ext. A-1. The third petitioner had no family as on 1.1.1970. There is no
evidence on the side of the respondents to show that the above statements of PW 1 are false and
that the petitioners have other properties also. In the circumstances, it can be held that including
the petition scheduled property, the petitioners will be having only properties within ceiling
limits applicable under the Kerala Land Reforms Act. Therefore, I find that even though the
petition scheduled property is a private forest, the same is not liable to be vested in the
Government under Section 3(3) of Act 26 of 1971.”
9. Against the said order, no appeal was preferred. The said order, therefore, was allowed to attain
finality. However, on or about 1.12.1986, a provision for review of the order of the Tribunal was
introduced by way of insertion of Section 8-B of the 1971 Act, which reads as under:
“8-B. Power of Custodian to apply for review of decisions of Tribunal.(1)Notwithstanding
anything contained in this Act or in the Limitation Act, 1963 (Central Act 36 of 1963), or in any
other law for the time being in force, or in any judgement, decree or order of any Court or other
authority, the Custodian may, if he is satisfied that any decision of the Tribunal under Section 8
requires to be reviewed on the ground that such decision has been made on the basis of
concessions made before the Tribunal without the authority in writing of the Custodian or the
Government or due to the failure to produce relevant data or other particulars before the Tribunal
or that an appeal against such decision could not be filed by reason of the delay in applying for
and obtaining a certified copy of such decision, make an application to be Tribunal during the
period beginning with the commencement of the Kerala Private Forests (Vesting and
Assignment) Amendment Act, 1986 and ending on the 31st day of March, 1987 for review of such
decision.
(2) An application under sub-section (1) shall be in the prescribed form and shall be verified
in the prescribed manner.
(3) On receipt of an application under sub-section (1), the Tribunal shall, notwithstanding
anything contained in this Act or in the Limitation Act, 1963 (Central Act 36 of 1963), or
in any law for the time being in force, or in any judgment decree or order of any court or
other authority review decision and pass such orders as it may think fit.”
 10. “Custodian of Vested Forests” and “Conservator of Forests” filed a revision petition before the
Forest Tribunal. Column 6 of the prescribed form, however, was not filled. In the said revision petition, it
was inter alia stated:
“3. It is noticed that the relevant data and certain particulars that are very relevant and necessary
for the proper appreciation and for arriving at a just decision, were not produced earlier before the
Tribunal.
4. Certain material particulars, relevant data and evidence are now available, which will help the
revision petitioners to substantiate that the disputed property is a private forest and that the
respondent herein is not eligible for any relief of exclusion or exemption from vesting.”
11. A Commissioner was appointed by the Tribunal. He submitted a report stating:
“From the present nature of the property, the sign of cultivation as on the appointed day cannot be
ascertained. I was told by the 3rd respondent that the teak wood were planted. But the same were
seen scattered except some of teak trees on the South-Western portion are seen stood in the
lined up nature and some of them are seen in the boundary of this portion.
The other point which I was told by the Forest Official is that on the western side in between the
disputed property and property belong to Ayilloor, there is no clear boundary demarcation, and the
nature of the species seen in the disputed property where the forest nature trees like Teak and other
trees found is the same in the property of Ayilloor in certain portion only.”
12. By reason of an order dated 24.08.1983, the said review petition filed by the Custodian was
dismissed stating:
“10. The question is regarding ceiling area. The first petitioner is having his wife and 5 minor
children. Apart from the other two applicants his share in the disputed property is 7.72 acres. He
can keep upto 20 acres or 14 standard acres. He has produced Ext. A-4 possession certificate from
the Tahsildar, Meenachil, 11.28 acres is the total holding of three applicants. He has produced
Exts. A-5 and A-6 the registration from the Rubber Board to show that about 3.65 acres out of his
property is planted with rubber. It has to be excluded for the purpose of ceiling. Even
otherwise, if we add 11.28 acres by 7.72 acres of the disputed property, the total makes only 19
acres. The first applicant and his wife and children are entitled to keep up to 20 acres, and
therefore, they are within the ceiling area. Second petitioner has produced Ext. A-3 possession
certificate from the Tahsildar stating that he is in possession of 2 acres of land. Ext. A-7 will show
that these two acres is planted with rubber. He is also married. Therefore, he is also within the
ceiling area. The third petitioner was not married and he can keep only this property. He has not
produced a possession certificate because he has no lands in his native place. Therefore, I find
that the applicants are within the ceiling area.
11. My learned predecessor has found that the applicants were holding the lands with intention to
cultivate. The very fact that the entire property is now planted with rubber is revealed from the
Commissioner’s report proved that the applicant has acquired the property with intention to
cultivate. In these circumstances, I do not find any ground to interfere with the orders passed by
my learned predecessor.
In the result, there is no merit in the review application and the same is dismissed.”
13. The High Court, however, by reason of the impugned judgment has allowed the appeal
preferred by the respondents herein stating:
“The Tribunal properly held that the respondents had title to the property. But there was no
evidence to show that the respondents herein were holding the property with intention to cultivate
on the appointed day. No documents were produced to show that they had the intention to
cultivate the land with rubber, coffee or any other type of cultivation as on or prior to the
appointed day. The tribunal allowed the application solely because these applicants were not
having land in excess of the ceiling area and that the property had been found cultivated at the
time of the visit of the Commissioner. For applying Section 3(3) of the Act, the cultivation of the
property subsequent to the vesting cannot be taken into account. For exempting the land under
Section 3(3) of the Act, the intention to cultivate the land must be evident at least prior to or as on
10.5.1971 and it should be pleaded and proved. In fact there was no pleading in the application for
claiming exemption under Section 3(3) of the Act. As there was no pleading and evidence
 regarding the intention to hold the property as on the date of vesting or prior to it, Section 3(3) of
the Act cannot be applied. In the absence of any such evidence, the Tribunal cannot be justified in
allowing the petition as per the order dated 21.2.1979 and in dismissing the review application.
Hence, the review application has only to be allowed and the O.A. to be dismissed.”
14. Mr. T.L.V. Iyer, learned senior counsel appearing on behalf of the appellants, in support of this
appeal, would submit that the High Court committed a serious error insofar as it failed to take into
consideration that it was not a case where the review petition could have been entertained. In any event,
the learned counsel would contend that having regard to the limited scope of appeal in terms of Section 8-A
of the 1971 Act, the order of the Tribunal should not have been interfered with by the High Court. The
High Court, the learned counsel would contend, misconstrued and misinterpreted the provisions of Section
3(3) of the 1971 Act. According to the learned counsel, Sub-sections (2) and (3) of Section 3 must be read
conjointly so as to give an effective meaning thereto.
15. Mr. G. Prakash, learned counsel appearing on behalf of the respondents, however,
would submit that the review petition was maintainable.
16. Several questions arose for consideration before the High Court. The High Court indisputably
had a limited role to play. We, as at present advised, are not inclined to accept the submission of Mr. Iyer
that sub-sections (2) and (3) of Section 3 of the 1971 Act would operate in the same field. In our opinion,
both operate in different fields. However, on a plain reading of the impugned order passed by the High
Court, we are of the opinion that the High Court was not correct in its view in regard to its construction of
Section 3(3) of the 1971 Act. The Tribunal, while exercising its power under Section 8 of the 1971 Act,
had taken into consideration the question which arose before it, viz., as to whether the appellants herein had
intention to cultivate the land on the appointed day. Appointed day having been defined in the 1971 Act,
the relevant aspect was the situation as it existed on that day, i.e., on 10.05.1971. For the purpose of
attracting sub-section (3) of Section 3 of the 1971 Act, it was not necessary that the entire area should have
been cultivated for arriving at a decision as to whether the owner of the land had the intention to cultivate
or not. Also, it was required to be considered having regard to the activities carried on by the owner from
the day of purchase till the appointed day. For the said purpose, subsequent conduct of the owner of
the land was also relevant. Development of the land by plantation of rubber plants is not in dispute. The
Explanation appended to Section 3(2) of the 1971 Act clearly suggests that cultivation would include
cultivation of trees or plants of any species. Intention to cultivate by the owner of the land, we think, has to
be gathered not only in regard to the fact situation obtaining at a particular time but also with regard to the
subsequent conduct of the parties. If the activity in regard to cultivation of land or development thereof is
systematic and not sporadic, the same also may give an idea as to whether the owner intended to cultivate
the land. The words ‘intend to cultivate’ clearly signify that on the date of vesting the land in question had
not actually been cultivated in its entirety but the purchaser had the intention of doing so. Such intention
on the part of the purchaser can be gathered from his conduct in regard to the development of land for
making it fit for cultivation preceding to and subsequent to the date of vesting.
17. The High Court, in our opinion, was not correct in opining that for applying Section 3(3) of the
1971 Act, the cultivation of the property subsequent to the vesting cannot be taken into account. The High
Court also was not correct in arriving at finding that there had been no evidence whatsoever that the owners
intended to cultivate the land prior to 10.05.1971. As the provision contained in sub-section (3) of Section
3 of the 1971 Act clearly provides for exclusion of the operation of sub-section (1) thereof, the same has to
be construed liberally. So construed, the conduct of the parties was a relevant fact. The High Court,
in our opinion, therefore was not correct in ignoring the findings of the Tribunal. Also, the High Court
should bestow its attention to the findings arrived at by the Tribunal having regard to the limited nature of
the scope and ambit of appeal in terms of Section 8-A of the 1971 Act and, particularly, in view of the fact
that the order dated 21.02.1979 had not been appealed against.
18. For the reasons aforementioned, the impugned judgment is set aside and the matter is remitted
to the High Court for its consideration thereof afresh in accordance with law. The appeals are allowed with
the aforementioned observations. No costs.
Appeals allowed.

[2008 (1) TNCJ 13 (SC)]

 SUPREME COURT
BEFORE:
S.B. SINHA AND MARKANDEY KATJU, JJ.
KENDRIYA VIDYALAYA SANGATHAN AND OTHERS …Appellants
Versus
L.V. SUBRAMANYESWARA AND ANOTHER …Respondents
[Civil Appeal No. 8563 of 2002 with C.A. Nos. 8559-8562 of 2002, decided on 10 May, 2007]
th

Appointment, Promotion, Security Etc. Rules, 1971—Rules 7 and 9—Appointment of primary

teachers on leave vacancy—Prayer for regularization—Dismissed by Tribunal—High Court was
wrong for ordering their regularization—Impugned judgment of High Court set aside.
(Paras 1, 2, 5 and 18)
Case law.—(1997) 2 SCC 1 ; LPA (SW) No. 199 of 1995; (2006) 4 SCC 1; 2006 (13) Scale 426;
2007 (3) Scale 401; (2004) 7 SCC 112.
Counsel.—Mr. S. Rajappa, for the appellants; Mr. K. Ramakrishna Reddy and P.S. Narasimha, for
the respondents.
JUDGMENT
S.B. SINHA, J.—Appellant is an autonomous body. It is a society registered under the
Societies Registration Act. Government of India, Ministry of Human Resource Development, however,
exercises control over it. The recruitment of teachers and other staff is governed by rules known as
Appointment, Promotion, Security etc. Rules, 1971. Rules were framed by the Board of Governors of the
appellant, the relevant provisions whereof are as under:—
“4. Authorised permanent strength and temporary strength of the Service:—
(i) The authorised permanent and temporary strength of the various grades of the service on the
appointed day shall be as specified in Schedule I.
(ii) After the appointed day, the authorised permanent and temporary strength of the various
grades of the service shall be such as may, from time to time, be determined by or under the
authority of the Board:
Provided that the competent authority may make temporary additions to any grade of the service
as found necessary in the interest of the work of the Sangathan.
6. Recruitment:—
(i) The method of filling up of the posts in the various grades of the Service, age limit and other
qualifications relating thereto shall be as specified in Schedule I (In case of posts not covered
in Schedule I, procedure, qualifications and similar matters shall be determined by the
Commissioner).
Provided that the upper age limit prescribed for direct recruitment may be relaxed in the case of
candidates belonging to the Scheduled Castes/Scheduled Tribes and other specified categories of
persons in accordance with the orders issued in this behalf from time to time by the Central
Government.
(ii) Appointments by direct recruitment or by promotion of departmental candidates shall be
made, except when there are special reasons to be recorded in writing with the approval also
of the Chairman, in the order in which the names of eligible candidates are included in the
Select Panel of the appropriate grade prepared according to the procedure laid down in Rule
7.
7. Preparation of Select Panels:—
(1) In the case of posts being filled up by direct recruitment the appropriate selection
authority shall, after test or interview or both, as the case may be, place the candidates
considered suitable for appointment to the particular grade/post in a select panel in
the order of their merit.
 (2) In the case of posts being filled up by promotion on the principle of seniority subject to
the rejection of the unfit, the Departmental Promotion Committee or other selecting
authorities will first decide the field of choice i.e. the number of eligible employees who
are to be considered for inclusion in the Select Panel. From among such employees those
who are considered unfit for promotion are to be excluded. The “Select Panel” will
then be prepared by placing the names of the remaining employees without disturbing
the seniority interest.
(3) In the case of promotion on the basis of the seniority- cum-merit or on the principle of
merit with due regard to seniority the field of choice will first be decided and the
employees considered unfit excluded in the same way as in the sub-rule (2) above The
remaining employees are then to be classified as “outstanding” “very good” and “good”
on the basis of merit, as determined by their respective records of service and also test or
interview if considered necessary. The “Select Panel” will thereafter be prepared by
placing the names in the order of those categories, without disturbing the seniority
interest within each category.
(4) Where the posts are to be filled up partly by direct recruitment and partly by promotion,
the select panel will be prepared as follows:—
The appropriate selecting authority will first prepare two separate select panels for the two
categories in accordance with the procedure laid down above. The required panel will then be
drawn up by combining these two separate panels according to the quota of posts reserved for
each category. That is to say, the names of direct recruits will appear first, followed by the
promotees, in proportion to the respective quota reserved for them.
*** *** ***
9. Ad-hoc Appointment:—
(1) Notwithstanding anything contained in Rules 6 and 7 when an employee included in the
select panel is not available or where such a select panel has not yet been prepared and
the appointing authority considers it necessary and expedient to do so, a vacancy in any
grade of the service may be filled on ad-hoc and temporary basis by the appointment of a
person or persons otherwise eligible for appointment thereto :
(i) for a period not exceeding six months ; or
(ii) for the period for which a select panel in respect of the particular post/grade is not prepared as
per Rule 7, whichever is less.
(2) Every appointment under sub-rule (1) shall be made only as a temporary arrangement and
no such appointment shall be deemed to confer on the appointee any right or claim to the
respective grade/post or to seniority in that grade.
2. Teachers in terms of the said rules are appointed on All India basis. To cater the need of the
students and the schools run by appellant throughout the country which are about 854 in number, the
services of the regular teachers are liable to transfer all over India. Advertisements were issued by the
appellant in some local newspapers inter alia for its Hyderabad Institution for primary teachers on leave
vacancies. Pursuant thereto or in furtherance thereof the names of the respondents were registered with the
local employment exchanges and not in the Central Employment Exchange. They had been admitted
intermittently. One of the terms of the offer of appointment issued in their favour was that the same would
not confer any right upon them to claim regular appointment. It was furthermore categorically stipulated
that they were appointed as stop-gap arrangement for a particular period in the academic year. They were
selected, however, not by a regular selection committee. Praying for the regularisation, they filed writ
petitions before the Andhra Pradesh High Court. Interim orders were passed in terms whereof they
continued in service. Appellant Society having been notified in terms of sub-section (2) of Section 14 of the
Administrative Tribunals Act in terms of a notification dated 1.1.1999; all the writ petitions were
transferred to the Central Administrative Tribunal.
3. The Tribunal dismissed the said transfer applications. Noticing that there had been no regular
vacancies, it was held:—
 “13. Admittedly, all the applicants were appointed on adhoc basis for short spells by the Assistant
Commissioner, clearly stipulating that such appointment would not confer upon them any right to
the post, considering candidates sponsored by the local employment exchange. It is also
brought out that the various orders passed by the High Court by which applicants were paid same
salary as is paid to the regular employees and were also directed to continue. In view of those
orders, the applicants were sought to be continued. It is however not in dispute that the applicants
were not regularly appointed by the Selection Committee after considering candidates sponsored
by the Central Employment Exchange as per the appointment procedure contained in the rules.”
4. Aggrieved by and dissatisfied there against, the respondents filed writ petitions.
5. The High Court, however, in its impugned judgment opined that although the respondents have
continued in the services intermittently and with artificial breaks, but till their services were terminated,
they have worked continuously and as such their services would be regularized in view of the decision of
this Court in Ashwani Kumar and others v State of Bihar and others, (1997) 2 SCC 1.
6. The High Court noticed that the selection of the respondents were not regular selection within the
meaning of Rule 7 of Appointment Rules. Despite the same, it thought fit to rely upon a Division Bench
decision of the Jammu and Kashmir High Court in LPA(SW) No. 199 of 1995. It was directed:—
“The petitioners are accordingly declared to be in service of the respondents herein
notwithstanding the impugned proceedings dated 10.12.2001 under which they were replaced on
the ostensible ground of regular incumbents joining the service of the respondent school. In the
circumstances the impugned proceedings dated 10.12.2001 are set aside. The second respondent
Assistant Commissioner, Kendriya Vidyalaya Sangathan Secunderabad is directed to give
appropriate posting orders to the petitioners herein within four weeks from the date of receipt of a
copy of this order.”
7. Mr. S. Rajappa, learned counsel appearing on behalf of the appellant in support of this appeal
would contend:—
(i) That respondents having recruited in terms of Rule 9 of Rules by way of a temporary
arrangement to meet the exigencies of work and they have continued as ad hoc/part
time/contractual employees inter alia by reason of the interim orders passed by the Court.
(ii) Their services should not have been directed to be regularized.
(iii) The respondent’s case do not come within the purview of the Constitution Bench decision
of this Court in Secretary, State of Karnataka and others v. Umadevi (3) and others, (2006) 4
SCC 1.
8. Mr. K. Ramakrishna Reddy, learned senior counsel, Mr. P.S. Narasimha, learned counsel on the
other hand would submit that the respondents have worked for a long period and having the requisite
qualifications, the services of the respondents could not have been discontinued by the appellant. The entry
of the respondents in the services being not a back door one and as prior thereto, their names were
sponsored by the employment exchange and they have been selected by a selection committee. The Rule of
Equality in public employment and equal opportunity as emphasized by this Court in Umadevi (supra) as
also the rule of reservation and the rules framed by the appellant having been satisfied, their
appointment satisfies the test laid down in Umadevi (supra). In any event, the exceptions carved out in
Umadevi (supra) clearly apply in the instant case as their selection in terms of Rule 9 of the Rules should be
treated to be only irregular and not illegal.
9. As in case of one of the respondents, the judgment of the High Court directing the appellant to
pay regular scale of pay having attained finality as the special leave petition filed there against has been
dismissed. The impugned judgment should not be interfered with. In any event, this Court taking into
consideration the human element of the matter should not interfere with the impugned judgment.
10. Had such regular vacancies been created, appellants would have been directed to be appointed
on All India Basis. Respondents did not get their names registered in the Central Employment Exchange.
Keeping in view the nature of the job and in particular that the posts are transferable throughout the
country, an opportunity within the meaning of Articles 14 and 16 of the Constitution of India would mean
an opportunity to all who are eligible therefor. Advertisement was issued for a limited purpose, namely, for
leave vacancies, local employment exchanges were contacted only for filling of such posts and not regular
posts.
11. Selections were held only at the local level and not on All India Level.
12. It is true that they had continued in service for such a long time, but they have been thrust upon
the appellant by reason of interim orders passed by the High Court. The Constitution Bench of this Court
in Umadevi (supra) held:—
15. Even at the threshold, it is necessary to keep in mind the distinction between regularisation
and conferment of permanence in service jurisprudence. In State of Mysore v. S.V.
Narayanappa this Court stated that it was a misconception to consider that regularisation meant
permanence. In R.N. Nanjundappa v. T. Thimmiah this Court dealt with an argument that
regularisation would mean conferring the quality of permanence on the appointment. This
Court stated:
“Counsel on behalf of the respondent contended that regularisation would mean conferring the
quality of permanence on the appointment whereas counsel on behalf of the State contended that
regularisation did not mean permanence but that it was a case of regularisation of the rules under
Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the
rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised.
Ratification or regularisation is possible of an act which is within the power and province of the
authority but there has been some non-compliance with procedure or manner which does not go to
the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede
to such a proposition would be to introduce a new head of appointment in defiance of rules or it
may have the effect of setting at naught the rules.”
16. In B.N. Nagarajan v. State of Karnataka this Court clearly held that the words “regular” or
“regularisation” do not connote permanence and cannot be construed so as to convey an idea of
the nature of tenure of appointments. They are terms calculated to condone any procedural
irregularities and are meant to cure only such defects as are attributable to methodology followed
in making the appointments. This Court emphasised that when rules framed under Article
309 of the Constitution are in force, no regularisation is permissible in exercise of the executive
powers of the Government under Article 162 of the Constitution in contravention of the rules.
These decisions and the principles recognised therein have not been dissented to by this Court
and on principle, we see no reason not to accept the proposition as enunciated in the above
decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that
only something that is irregular for want of compliance with one of the elements in the process of
selection which does not go to the root of the process, can be regularised and that it alone can be
regularised and granting permanence of employment is a totally different concept and cannot
be equated with regularisation.
*** *** ***
53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal
appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and
referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have
been made and the employees have continued to work for ten years or more but without the
intervention of orders of the Courts or of tribunals. The question of regularisation of the services
of such employees may have to be considered on merits in the light of the principles settled by
this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union
of India, the State Governments and their instrumentalities should take steps to regularise as a one-
time measure, the services of such irregularly appointed, who have worked for ten years or more
in duly sanctioned posts but not under cover of orders of the Courts or of Tribunals and should
further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that
require to be filled up, in cases where temporary employees or daily wagers are being now
employed. The process must be set in motion within six months from this date. We also clarify
that regularisation, if any already made, but not sub-judice, need not be reopened based on this
judgment, but there should be no further bypassing of the constitutional requirement and
regularising or making permanent, those not duly appointed as per the constitutional scheme.
 54. It is, also clarified that those decisions which run counter to the principle settled in this
decision, or in which directions running counter to what we have held herein, will stand denuded
of their status as precedents.
13. It is, therefore, not correct to contend that in the aforementioned backdrop of events,
respondents satisfy the tests of equality, reservation or rule of law as adumberated in Umadevi (supra).
Reliance placed on paragraph 53 of Umadevi (supra) is also mis-placed. What would be meant by the term
irregularity must be understood in the context of the decision of this Court in Punjab Water Supply and
Sewerage Board v. Ranjodh Singh & Ors., 2006 (13) Scale 426. The said paragraph has been explained by
this Court in Punjab State Warehousing Corp., Chandigarh v. Manmohan Singh & Anr., 2007 (3) Scale
401.
14. Furthermore, the respondents even did not complete the period of 10 years without intervention
by the Court, they would not have been in service for more than 10 years but for intervention of the High
Court, they had been continued in service in terms of the interim order passed by the High Court.
15. So far as the submission of the learned counsel that in the case of some of the respondents, the
High Court had applied the principle of equal pay for equal work. That aspect of the matter has also been
considered by a Constitution Bench in Umadevi (supra):—
“44. The concept of “equal pay for equal work” is different from the concept of conferring
permanency on those who have been appointed on ad hoc basis, temporary basis, or based on no
process of selection as envisaged by the rules. This Court has in various decisions applied the
principle of equal pay for equal work and has laid down the parameters for the application of that
principle. The decisions are rested on the concept of equality enshrined in our Constitution in the
light of the directive principles in that behalf. But the acceptance of that principle cannot lead to a
position where the Court could direct that appointments made without following the due procedure
established by law, be deemed permanent or issue directions to treat them as permanent. Doing so,
would be negation of the principle of equality of opportunity. The power to make an order as is
necessary for doing complete justice in any cause or matter pending before this Court, would not
normally be used for giving the go-by to the procedure established by law in the matter of public
employment. Take the situation arising in the cases before us from the State of Karnataka.
Therein, after Dharwad decision the Government had issued repeated directions and mandatory
orders that no temporary or ad hoc employment or engagement be given. Some of the authorities
and departments had ignored those directions or defied those directions and had continued to give
employment, specifically interdicted by the orders issued by the executive. Some of the
appointing officers have even been punished for their defiance. It would not be just or proper to
pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise
of power under Article 142 of the Constitution permitting those persons engaged, to be absorbed
or to be made permanent, based on their appointments or engagements. Complete justice would
be justice according to law and though it would be open to this Court to mould the relief, this
Court would not grant a relief which would amount to perpetuating an illegality.”
16. Direction to regularize the services of the respondents in view of the authority by Constitution
Bench in Umadevi (supra), therefore, cannot be said to be of any significance so as to deny the relief to the
appellant.
17. Ashwani Kumar (supra) has also been noticed by the Constitution Bench. A distinction
furthermore must be noted in mind between regularisation and permanency, the regularisation does not
mean permanency. In A.Umarani v. Registrar, Co-operative Societies and others, (2004) 7 SCC 112, this
Court had made the distinction, it was furthermore held:—
“34. Sub-rule (25) of Rule 149 provides that the principle of reservation of appointment for
Scheduled Castes/Scheduled Tribes and Backward Classes followed by the Government of Tamil
Nadu for recruitment to the State shall apply.
35. No appointment, therefore, can be made in deviation of or departure from the procedures laid
down in the said statutory rules.
36. The terms and conditions of services are also laid down in the said rules.”
 18. For the reasons aforementioned, we are of the opinion that the impugned judgment cannot be
sustained. The Appeals are allowed. The impugned judgment is set aside. In the facts and
circumstances of this case, there shall be no order as to costs.
Appeals allowed.

[2008 (1) TNCJ 20 (Mad)]

MADRAS HIGH COURT
BEFORE:
M. CHOCKALINGAM, J.
MALAI MURASU, OWNED AND MANAGED
BY CHENNAI PUBLICATIONS REP. BY ITS DIRECTOR ...Petitioner
Versus
APEX AGENCIES, MADRAS AND OTHERS ...Respondents
[C.R.P. (NPD)No. 1001 of 2007 and M.P.No. 1 of 2007, decided on 13 July, 2007]
th

Tamil Nadu Buildings (Lease and Rent Control) Act, 1960— Section 25 (Amended)—
Eviction order—Sustainability of—Premises leased out to the first respondent in the year 1979 for
the monthly rent of Rs. 1150/- payment of rental made by first respondent— Admission of first
respondent that from the year 1994 onwards the property was sub-let by the first respondent to the
second respondent—Relationship of landlord and tenant was between owner of the property and the
first respondent—Second respondent inducted into possession subsequently—Wilful default in
payment of rental—Two Courts rightly held that first respondent was the tenant and he was liable to
be evicted—Orders passed by two authorities below affirmed—Revision petition dismissed—Three
months time allowed to vacate the premises.
(Paras 10 to 14)
Case law.—2005 (1) SCC 481; 1998 (1) LW 690.
Counsel.—Mr. T.R. Rajagopal, SC for Mr. K. Mohanamurali, for the petitioner; Mr. A.S.
Chandrasekaran, for the respondents.
JUDGMENT
M. CHOCKALINGAM, J.—A challenge is made to the judgment of the learned VIII Judge, Court of
Small Causes, Chennai, the Rent Control Appellate Authority, made in RCA No.103 of 2006, whereby
the order of eviction made in RCOP No.1467 of 1995 on the ground of wilful default and subletting was
affirmed.
2. The Court heard the learned counsel on either side. The respondents 1 and 2/the landlords made a
petition for eviction on the ground that the first respondent therein was the tenant in respect of the petition
mentioned premises from 1979 paying a monthly rental of Rs.1150/- excluding electricity and other
charges, for non-residential purpose; that the first respondent has sublet the premises under the occupation
to the second respondent; that the second respondent was running a printing press and also have their
administrative office at the petition premises; that the first respondent have parted with the possession to
the second respondent and the said subletting has been taken place without the consent of the landlord and
thus, on that ground eviction was to be granted and apart from that, an application for fixing fair rent has
also been filed and there was monthly rental arrears from October, 1994 to March, 1995 at the rate of
Rs.1150/- per month and thus, on both the grounds of wilful default and subletting, they were to be evicted.
3. The first respondent filed counter, stating that the first respondent was not the tenant then under
the petitioner; that they have surrendered the possession of the portion to the petitioners; that the
respondent was the tenant for nearly four decades and right from the beginning of the tenancy, the
premises was sublet to the second respondent with the consent and knowledge of the owner of the
premises and apart from that, the tenancy agreement came to an end on 30.09.1994 by way of reply notice
issued by the respondent; that the respondent had authorised the petitioners to take vacant possession of the
portion in their occupation on 31.10.1994 and thus, from 1.11.1994, there was no relationship of landlord
and tenant and under these circumstances, there was no question of any payment of rental by the first
respondent or it could be termed as wilful default and hence, the petition was to be dismissed.
4. The second respondent filed counter, stated that from 1961 onwards, the newspaper ‘Daily
Thanthi’ shifted its office and press to Rundals Road and ‘Malai Murasu’ came to be published from the
premises in question; that it is not correct to state the first respondent was the chief tenant and the second
respondent was the sub-tenant; that originally, the lease was taken by the Founder, who had two sons and
there were two units, one ‘Daily Thanthi’ run by one son and the other ‘Malai Murasu’ run by the other son
and under these circumstances, no question of sub tenancy would arise; that in the reply notice, the first
respondent has clearly admitted the status of the second respondent as the tenant and under these
circumstances, no question of sub tenancy or eviction would arise; that in the instant case, non-payment
of rental arrears came to the knowledge of the second respondent at the end of December, 1994 and
thereafter, separate account was opened and the rental has been given credit to; that the first respondent was
paying the balance and thus, there was no question of wilful default and under these circumstances, the
petition was to be dismissed.
5. The Rent Controller, on enquiry, found that both the grounds are proved and has passed an order
of eviction. Aggrieved over the same, only the second respondent took it on appeal in RCA No.103 of
2006 and on enquiry, the appellate authority took the view that the order of the Rent Controller was to
be sustained and accordingly, it was sustained and hence, this revision has arisen before this Court.
6. Advancing his arguments on behalf of the appellant, the learned senior counsel raised three
contentions. The petition itself is not maintainable, since it was not initiated against the juristic person; that
they were described as ‘Daily Thanthi’ and ‘Malai Murasu’ originally; that subsequently, an amendment
application was taken only at the appellate stage; that so long as it is not initiated against the juristic
person, the petition was liable to be dismissed; that so far as the ground of subletting was concerned, it
could not be a ground at all; that the property was leased out in the year 1961 by the previous owner to
Si.Pa.Adithanar, who had two sons, namely Ramachandra Adityan and Sivanthi Adityan; that from the
commencement, there were two units, namely Malai Murasu and Daily Thanthi; that Malai Murasu came to
the hands of Ramachandra Adityan and the other one Daily Thanthi came to the hands of Sivanthi Adityan;
that it is true that Daily Thanthi went to the other premises of its own, but Malai Murasu has been carrying
on its affairs in the said premises from the very commencement to the knowledge of the landlord and under
these circumstances, it would be futile to contend that originally, Daily Thanthi was the lessee and there
was sublease in favour of the second respondent by the first respondent and it cannot be accepted.
7. Added further the learned senior counsel that in the instant case, it has been categorically stated
even in the counter filed by both the respondents that the second respondent has got the status of the
tenant; that in the instant case, there was no separate payment of rental that has been made by the second
respondent; that originally, the monthly rental was Rs.1150/-; that it is true, Rs.750/- per month was paid by
the second respondent to the first respondent and thus, totally Rs.1150/- per month has been paid; that from
the very beginning, there was only one tenant, who had two sons and they had two units and under
these circumstances, it cannot be said to be sub-tenancy also and hence, the authorities below have not
taken into consideration all these aspects and that there was no proper evidence to show that there was sub-
tenancy, which remained not proved; that so far as the wilful default was concerned, there was no wilful
default; that payments have been made regularly; that when it came to the knowledge of the second
respondent that the payments were not regularly paid by the first respondent, payments have been made by
the second respondent also and under these circumstances, there is no question of wilful default also and
hence, for all the reasons, the order of the authorities below have got to be set aside. In support of his
contentions, the learned senior counsel has relied on the decisions of the Supreme Court reported in
2005 (1) SCC 481 (Mahendra Saree Emporium (II) v. G.V. Srinivasa Murthy) and 1998 (1) LW 690 (M/s.
Bharat Sales Ltd. v. Life Insurance Corporation of India).
8. The learned counsel for the respondent would submit that the orders of the authorities below have
got to be sustained. It is not in controversy that the property was purchased in the year 1979 by the present
landlord, who was the petitioner before the Rent Controller. There was monthly rental of Rs.1150/-, which
was being paid by the first respondent, since the first respondent has been the tenant all along. After
coming to know about the fact that the first respondent has sublet the property to the second respondent, a
notice was issued, which resulted in reply by the first respondent. The first respondent has categorically
admitted that a portion of the property has been leased out to the second respondent and it is in their
possession and so far as the portion, which was in the occupation of the first respondent is concerned, the
lease came to an end on 30.09.1994 and the landlord shall take the vacant possession on 31.10.1994, but
when the landlord went over to take possession, they could not take possession, because nobody was
available and no delivery could be taken place. The second respondent examined R.W.1. From the
evidence of R.W.1 examined by the second respondent, it would be quite clear that the amount of Rs.750/-
per month was paid by the second respondent to the first respondent and the first respondent, by adding his
rental also, in turn used to make the payment to the landlord. Thus, it would be quite clear that the
payments have been made by the subtenant to the main tenant and the main tenant was to make the
payment. In the instant case, the main tenant comes forward to state that he sublet the property to the other
tenant, but payments were made only by the first respondent by getting rental from the sub-tenant. Thus, it
would be quite clear that it was a case of sub-tenancy.
9. Added further the learned counsel that there was rental balance from October, 1994 to March,
1995 at the time of filing of RCOP. At this juncture, it is pertinent to point out that when the matter is
pending for nearly 8 or 9 years, not even a penny was paid by the second respondent towards rental, though
he called himself as the tenant in respect of the property. So far as the juristic person is concerned, it is
true, originally, against Daily Thanthi and Malai Murasu, the petition was filed and only at the appellate
stage, the petitioner came to know that under whom the management was and thereafter, the application for
amendment was filed and the same was allowed and thus, the order has become final and it is also rectified
and no revision was filed therefrom. So far as the first respondent was concerned, he has not preferred any
civil revision petition. At this juncture, all the contentions now put forth by the second respondent in the
civil revision petition cannot be maintained for the simple reason that he was only the sub-tenant and the
main tenant has not challenged the same and hence, the order has got to be sustained.
10. The Court has paid its anxious consideration on the submissions made. After doing so and after
looking into the materials available, the Court is of the considered opinion that the order of eviction has got
to be sustained. It is a specific case of the landlord/respondent that the property was leased out from the
year 1979 to the first respondent for the monthly rental of Rs.1150/-. It is not in controversy that from the
time when the landlord purchased the property from 1979, the first respondent has been making the
monthly rental of Rs.1150/-. It is not the case of the second respondent, at any point of time, that he was
making any payment of rental. Though there was landlord-tenant relationship between the petitioner in the
RCOP and the first respondent, at no point of time, there was landlord tenant relationship between the
petitioner in the RCOP and the second respondent. It is not only clear from the averment, but also from the
evidence on the side of the second respondent that every month Rs.750/- was paid by way of cheque by the
second respondent to the first respondent and the first respondent, in turn, used to make the payment of
rental, by adding his rental also. When a notice was issued by the landlord to the first respondent, the first
respondent has categorically admitted that from the year 1994 onwards, the property was sublet by the first
respondent to the second respondent.
11. The only contention put forth before the authorities below and equally here also is that
originally, the tenancy commenced from the year 1961 and it was Si.Pa.Adithanar, who took the property
on lease; that he was the father of Ramachandra Adityan and Sivanthi Adityan and there were two units and
the two sons took the two units and that now, it cannot be said that they are the sub-tenants for one unit.
This contention has got to be negatived for the simple reason that so far as the present landlord was
concerned, from the year 1979, the relationship of landlord and tenant has arisen between the parties. It is a
categorical case of the landlord that the tenancy was with the first respondent and they have been making
payment of rental for all along the period. As stated above, it would be quite clear that the relationship of
landlord and tenant was between the petitioner in the RCOP, the owner of the property and the first
respondent. The second respondent was not in the picture till he got into the property. The first respondent
has categorically stated in the course of the counter that the second respondent has been put in possession
in a portion of the property and thus, it would be quite clear that he was inducted into the possession
subsequently. Further, in the instant case, the first respondent came with a plea that there was notice
issued, by which the tenancy agreement came to an end on 30.09.1994 and the petitioner was also
authorised to take possession of the portion in their occupation on 31.10.1994 and thus, from 1.11.1994, the
relationship of the landlord and tenant came to an end. This plea though attractive at the first look, will not
satisfy the legal requirement. Once there was notice given by the landlord to the tenant and the tenant by
reply notice has stated that the tenancy came to an end in a particular period and he has also authorised to
take the vacant possession of the property, it is to be noted that there was no delivery of possession of the
property at all. Thus, the relationship of the landlord and tenant came to an end on 1.11.1994 cannot be also
legally accepted and the tenancy continued between the landlord and the first respondent. Pending
same, the second respondent has been inducted into the possession and the payment of rental at the rate of
Rs.750/- was paid by the second respondent to the first respondent and the first respondent, in turn, has
made the payment of rental. There was arrears of rental as could be found in the application. Thus, the
contention put forth by the first respondent that he need not make any payment of rental, since he was out
of possession cannot be accepted in law. There was neither termination of tenancy nor handing over of
possession and under these circumstances, there was default, much less wilful default. Hence, both the
authorities below have pointed out that the first respondent was the tenant and he was liable to be
evicted.
12. Under these circumstances, so long as the second respondent was the sub-tenant, all the
contentions now put forth need not take into consideration at all. He was only the sub-tenant as could be
seen above. Further, in the instant case, so far as the second respondent was concerned, though he was
described as Malai Murasu before the Rent Controller, there was an application before the appellate forum
and the same has been allowed and the amendment was also carried on, but it was not challenged. Under
these circumstances, the description was found to be correct. So far as the first respondent was concerned,
the first respondent himself has not challenged either the order of eviction by the Rent Controller, or when
it was confirmed by the appellate forum. Hence, the contentions put forth by the revision petitioner, who is
found to be the sub-tenant, cannot stand even for a moment in law.
13. The crowning circumstance that was brought to the notice of the Court was that from the time of
filing of RCOP, though the second respondent called himself as the sub-tenant in respect of the property, he
has not even paid a penny or deposit the rental from the commencement of proceedings till this time. Thus,
it would be quite clear that all vexatious defence have been taken and that too by calling himself as tenant
without making any payment of rental whatsoever to the landlord. Under these circumstances, the Court is
of the considered opinion that there is no hesitation whatsoever in affirming the orders of both the
authorities below. Accordingly, this civil revision petition fails and the same is dismissed. No costs.
Consequently, connected MP is also dismissed.
14. At this juncture, the learned counsel for the revision petitioner would submit that reasonable
time may be granted to find out suitable accommodation and to take over the machineries and shift the
machineries thereon to carry on business. Heard the learned counsel for the respondent also. Considering
the facts and circumstances of the case, three months time is granted to the petitioner herein for the said
purpose. The petitioner is also directed to file an undertaking affidavit to that effect within a period of two
weeks herefrom.
Petition dismissed.

[2008 (1) TNCJ 25 (Mad)]

MADRAS HIGH COURT
BEFORE:
M. CHOCKALINGAM, J.
GIRIRAJAN ...Petitioner
Versus
MOHANAMMAL ...Respondent
[C.R.P. NPD No. 1069 of 2007 and M.P.No. 1 of 2007, decided on 30 July, 2007]
th

Tamil Nadu Buildings (Lease and Rent Control) Act, 1960— Section 10(3) (c)—Eviction—
Additional accommodation—Landlady in possession of one shop from where she is running an office
—Applicant tenant in occupation of two shops—Other shops also vacated by landlord—Shop in
question required for opening of supermarket— Objection to eviction petition filed on ground that
landlord or his son is not carrying any business hence he cannot be evicted on ground of additional
accommodation—Held, active and actual carrying on business is not required—Additional
accommodation which is required by landlady could be extended to her son also—Hence order of
Court below granting eviction just and proper and call for no interference—Petition dismissed.
(Para 10)
Important Point
Eviction on ground of additional accommodation.—Actual and active carrying on business is
not required for eviction on ground of additional accommodation.
Case law.—1994 Supp. (1) SCC 729; 2006 (2) MLJ 16.
Counsel.—Mr. V. Ragavachari, for the petitioner; Mr. P.B. Ramanujam, for the respondent.
JUDGMENT
M. CHOCKALINGAM, J.—Challenging the judgment of the Rent Control Appellate Authority,
namely VIII Court of Small Causes, Chennai made in RCA No.780 of 2005, whereby the order of the Rent
Controller in RCOP No.1121 of 2004, seeking an order of eviction on the ground of additional
accommodation under Section 10(3)(c) of the Tamil Nadu Buildings (Lease & Rent Control) Act, 18 of
1960 as amended by Act 23 of 1973, was reversed and eviction was ordered, this civil revision petition has
been brought forth by the tenant before this Court.
2. The respondent/landlady filed the petition for eviction, stating that she is the owner of the
premises bearing Old No.290, New No.497, Poonamallee High Road, Aminjikarai, Chennai; that the
respondent therein is the tenant in respect of two shop portions, namely Shop Nos.2 and 3 in the ground
floor on a monthly rent of Rs.5770/-; that it was originally leased out to the respondent’s father; that the
petitioner is running a lodge under the name and style of “Velmurugan Lodge” in the first and second
floors; that in the ground floor, there are four shops and in one shop, she is running her office and the other
shops, namely 2 and 3, are under the occupation of the tenant/respondent in the RCOP, while the other shop
was actually let out to one Shafeequa Banu; that RCOP No.220 of 1998 was filed; that pursuant to the
same, she vacated the premises and handed over the possession and thus, the landlady got possession of the
property; that her son by name Balamurugan is under occupation of the said portion and that for her son’s
requirement, the petition mentioned premises is now sought for; that he has decided to start a
supermarket business in the said building, for which purpose, he has also put in possession of the premises,
which was in occupation of the other tenant, who has vacated and handed over the possession of the same;
that he has got a valid licence to run the supermarket business, he has also got training in the said business
and he has got sufficient funds to commence the business and under these circumstances, he requires the
other shop, which is in the occupation of the present tenant and the requirement of the petitioner is bona
fide and genuine and under these circumstances, if not vacated, it would cause hardship to the petitioner
and hence, the eviction was to be ordered.
3. The petition was contested by the respondent/tenant, stating that it is true, he is the tenant under
the landlady; that originally, his father was the tenant and a petition in RCOP No.221 of 1998 was filed
against his father on the ground of act of waste and owner’s occupation and the same was dismissed; that
shortly thereafter, the instant petition has been brought forth, as the petitioner requires the building for
additional accommodation; that the petitioner’s son is not carrying on business and under these
circumstances, no question of carrying on business by her son either, or the building is required for
additional accommodation would arise and hence, the petition was to be dismissed.
4. The Rent Controller, on enquiry, has dismissed the petition. Hence, there arose R.C.A. and the
appellate forum, on enquiry, has allowed the appeal and ordered eviction on the ground of additional
accommodation. Under these circumstances, this civil revision petition has arisen at the instance of the
tenant.
5. In support of the revision petition, the learned counsel would submit that the Rent Controller has
gone into both factual and legal positions correctly and has dismissed the petition, but the appellate
authority, without applying his mind, has passed an erroneous order; that in the instant case, what was
asked for by the landlord was the eviction on the ground of additional accommodation under Section 10(3)
(c) of the Act; that Section 10(3)(c) of the Act should be applied in a case, where actually the premises
is required for additional accommodation and the landlady is carrying on business at that time, but in
the instant case, even as per the admission made by P.W.1, the landlady’s son, for whose need the portion
is required, neither he is being carrying on business nor her mother in the property in question; that if the
business is not carrying on in any portion of the property, no question of additional accommodation would
arise; that in any given situation, where the property is needed for that use, such an application should have
been filed under Section 10(3)(a)(iii) of the Act and not under Section 10(3)(c) of the Act; that the appellate
authority has not considered the legal position, but has found that the application should have been filed
under Section 10(3)(c) of the Act; that so long as it is an admitted fact that either the landlady or her son,
for whose possession it is required, are not carrying on business, it cannot be done.
6. The learned counsel for the petitioner, relying on the decision of the Supreme Court reported in
1994 Supp. (1) SCC 729 (D.Devaji v. K.Sudarashana Rao) and the decision of this Court reported in 2006
(2) MLJ 16 (P.M.S.Pakkir Mohideen v. D. Susila), would submit that in the instant case, in the absence of
any evidence to carry on business, if there is any requirement, the landlady should come under Section
10(3)(a)(iii) of the Act and a petition should be made and not under Section 10(3)(c) of the Act; that if
petition is made under Section 10(3)(c) of the Act, it becomes more necessary that carrying on business
must be proved, but in the instant case, it is an admitted fact that he is not carrying on business; that even as
per the averments, the landlady’s son has put in possession of the building, but not carrying on business
there; that the appellate forum has found that it has got to be held as if he is carrying on business in the
premises and under these circumstances, the order of the Rent Controller has got to be restored by setting
aside the order of the appellate forum.
7. The learned counsel for the respondent would submit that in the instant case, sufficient
evidence was let in, but the Rent Controller did not consider both factual and legal positions and has
dismissed the petition and the same was set right by the appellate forum; that originally, the father of the
revision petitioner/tenant was put in possession as the tenant; that on his death, the revision petitioner
continues to be in possession; that it is true, originally, there was RCOP No.221 of 1998 filed against the
father of the revision petitioner on the ground of act of waste and owner’s occupation, but the
petition was dismissed, it is true; that it is pertinent to point out that an another petition in RCOP No.220 of
1998 was filed against the another tenant and the same was ordered and the particular tenant has also
vacated the premises and handed over the possession and now, the present petition was filed by the
landlady, seeking additional accommodation for carrying on business by her son; that in the other portion,
which was vacated by the other tenant, namely Shafeequa Banu, the son of the landlady has put in
possession; that there was clear evidence to indicate that the landlady’s son has taken all steps to
commence the supermarket and he has got training and got licence and he has got sufficient funds and that
all have been a proved facts and under these circumstances, the appellate forum has granted the relief.
8. Added further the learned counsel that in the instant case, under the stated circumstances, the
petition has got to be necessarily filed under Section 10(3)(c) of the Act and accordingly, it has been filed;
that what are all required under Section 10(3)(c) of the Act is to carry on business and then only additional
accommodation should be sought for; that in the instant case, carrying on business would include the
business to be carried out by the landlady’s son also; that carrying on business has got wide interpretation
and to add that all steps have been taken in this regard; that the law does not require that actual and active
carrying on business should be made, but steps are sufficient and under these circumstances, the appellate
forum was perfectly correct in allowing the petition for eviction and hence, the civil revision petition has
got to be dismissed.
9. After careful consideration of the rival submissions made, the Court is of the considered opinion
that this civil revision petition does not carry any merit whatsoever. In the instant case, admittedly, the
landlady is owning a building. The landlady is running a lodge in the first and second floors. In the ground
floor, there are four shops and in one shop, the landlady is running her office and the other two shops are in
occupation of the revision petitioner/ tenant. So far as the fourth shop is concerned, there was RCOP
No.220 of 1998 against Shafeequa Banu, the tenant and eviction was ordered. Subsequently, there was
delivery of possession and that the property became vacant then and now it is not in occupation by any
other tenant. It is also true that earlier petition in RCOP No.221 of 1998 was filed against the father of the
tenant on the ground of act of waste and also for personal occupation and that application was actually
dismissed. After an interval, the instant petition was filed on the ground of additional accommodation
under Section 10(3)(c) of the Act. It would be more apt and appropriate to reproduce Section 10(3)(c) of
the Act, which reads as follows:
“A landlord who is occupying only a part of a building, whether residential or non-residential,
may, notwithstanding anything contained in clause (a), apply to the Controller for an order
 directing any tenant occupying the whole or any portion of the remaining part of the building to
put the landlord in possession thereof, if he requires additional accommodation for residential
purposes or for purposes of a business which he is carrying on, as the case may be.”
From a very reading of Section 10(3)(c) of the Act, it would be quite clear that what is required is
that carrying on business and the building is required for additional accommodation. In the instant case,
even P.W.1, the landlady’s son, has well admitted that either himself or his mother is not carrying on
business in the property. Now, the question would be what is carrying on business under Section 10(3)
(c) of the Act and it has got to be interpreted. Whether it requires actual and active carrying on business
during the relevant time. The answer would be in negative. What is required for carrying on business is
the steps that are taken positively for carrying on business and it comes within the interpretation of carrying
on business.
10. In the instant case, there is available evidence and that the landlady’s son was examined as
P.W.1 to show that he had got training in the business, for which he produced evidence. He has also got
license for carrying on business and further, he has got sufficient funds. He has produced sufficient
evidence and they cannot be denied. Under these circumstances, he himself put in possession of the
property, which is kept vacant. Hence, actual and active carrying on business is not required. The additional
accommodation, which is required by the landlady, could be extended to her son also and her family
members, who are carrying on business. The steps taken, in the opinion of the Court, would satisfy to carry
on business as envisaged under Section 10(3)(c) of the Act. The decisions relied on by the learned
counsel for the petitioner are applicable to the case where the landlord, who is actually having a portion of
the property for residential purpose, sought eviction of the tenant, who is occupying the premises for
non residential purpose and the eviction should be sought only under Section 10(3)(a)(iii) and not under
Section 10(3)(c). But, in the instant case, the case is otherwise. When the landlady, for the purpose of
carrying on business by her son, seeks additional accommodation in the premises, in question, the
petition for eviction would lie only under Section 10(3)(c) and not under Section 10(3)(a)(iii) of the Act.
Hence, the petition was maintainable. Therefore, carrying on business, as envisaged under the Act, has
been proved. The appellate authority, as found above, has passed an order of eviction and it has got to be
sustained. Accordingly, this civil revision petition fails and the same is dismissed. No costs.
Consequently, the connected MP is also dismissed.
11. Taking into consideration the fact that the father of the revision petitioner was carrying on
business and after his death, the revision petitioner continues to do so, the Court is of the considered
opinion that a reasonable time could be given to vacate the premises and hand over the possession to the
respondent/landlord. At this juncture, the learned counsel for the revision petitioner seeks two years time.
The learned counsel for the respondent would submit that it could be for 15 months. Taking into
consideration the facts and circumstances of the case, the Court feels that 18 months time could be given
for the revision petitioner to vacate the premises and hand over the possession to the respondent/landlord.
Accordingly, 18 months time is granted. The revision petitioner is directed to file an undertaking
affidavit to that effect within a period of two weeks herefrom.
Revision dismissed.

[2008 (1) TNCJ 30 (SC)]

SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND LOKESHWAR SINGH PANTA
SANDEEP POLYMERS PVT. LTD. …Petitioner
Versus
BAJAJ AUTO LTD. AND OTHERS …Respondents
[Civil Appeal No. 7749 of 2004, decided on 20 July, 2007]
th

Civil Procedure Code, 1908—Order VII, Rule 10 and Section 9-A—Return of plaint—
Civil suit for recovery of certain amount as damages for breach of contract—Plaintiff is
manufacturer of plastic component and entered into an agreement with lifetime supply of its
products—Defendant terminated agreement—Factory situates at Nagpur—Suit filed in Nagpur—
Application by defendant that it was not maintainable since registered office of defendant was in
Pune—Lease agreement executed at Pune—Supplies were made at Pune— Further plaintiff has its
registered office in Mumbai and neither of parties to suit reside at Nagpur—Plaintiff stating that
part of cause of action arose in Nagpur—However High Court directed return of plaint—Legality of
—Held, appellant before Apex Court submitted that a separate suit shall be filed in relation to
purchase orders at Pune and necessary amendments to plaint filed at Nagpur shall be made—Hence,
petition disposed off accordingly. (Paras 14, 16, 18 and 19)
Case law.—2004 (3) SCC 137; 2000 (7) SCC 640; 1994 (6) SCC 322; 1998 (6) SCC 514; 1996 (3)
SCC 443; 2001 (2) SCC 294; 1977 (1) SCC 791; (1914) 41 IA 142; AIR 1949 PC 78.—referred.
JUDGMENT
DR. ARIJIT PASAYAT, J.—Challenge in this appeal is to the order passed by a learned Single Judge
of the High Court of Bombay, Nagpur Bench, directing return of the plaint, as according to the High Court
the Court at Nagpur had no jurisdiction to entertain a part of the claims made in the suit. The plaintiff was
granted liberty to represent the plaint in the Court having jurisdiction at Pune. The trial Court was directed
to follow the procedure under Order VII, Rule 10-A of the Code of Civil Procedure, 1908 (in short the
‘CPC’) for return of the plaint to the plaintiff.
2. Background facts in a nutshell are as follows:
The appellant filed a special civil suit No.881/91 for recovery of Rs.79,63,99,736/- as damages for
breach of contract. The stand of the plaintiff in the plaint was that it is the manufacturer of moulds and high
precision plastic component for the industrial application specially for use by automobile industry. It
has its manufacturing operations at Nagpur and the defendants have entered into an agreement with it for
lifetime supply of its products. It has made huge investments at Nagpur amounting to rupees thirty crores
and that it has a most sophisticated factory at Nagpur. Plaintiff is supplying its products to the Defendant
No.1 for almost two decades. The defendant No.1 vide registered letter dated 03.11.1999, which was
received by the plaintiff at its Nagpur office on 11.11.1999, has terminated its agreement with the plaintiff.
Due to the said termination, the machineries which were installed by the plaintiff specifically for
manufacturing moulds for the defendant No.1 would remain idle and that there will be no use of its unit
installed at Nagpur. The plaintiff, therefore, contended that it is entitled to compensation of damages
inasmuch, as the defendant No.1’s action of refusing to honour its promise and assurance was illegal and
arbitrary.
The defendant Nos.1, 3 and 4 filed an application under Section 9-A read with Order VII, Rule 11
of CPC submitting therein that the suit was clearly abuse of process of law and was not maintainable. The
registered office of defendants 1 and 2 was at Pune and that the defendant Nos.3 and 4 are the residents
of Pune, whereas the defendant No.5 has its registered office at Tokyo (Japan). The lease agreements
between defendant No.1 and the plaintiff had been executed at Pune, and supplies were made by the
plaintiff to defendant No.1 at Pune/Aurangabad, i.e. outside the territorial jurisdiction of Civil Judge,
Senior Division, Nagpur and, therefore, it had no territorial jurisdiction to entertain the suit and the suit
deserves to be dismissed summarily. It was denied by the respondents-defendants that the plaintiff has
set up its factory at Nagpur at the instance of defendant No.1. It was further contended that the plaintiff has
deliberately suppressed the fact that it has its registered office at Mumbai and neither of the parties to the
suit resided at Nagpur. The respondents further averred in the said application that the parties by consent
have restricted the jurisdiction to Pune Court only. The said term pertaining to jurisdiction is contained in
all the purchase orders placed by defendant No.1 with the plaintiff. Plaintiff had deliberately filed a part of
the purchase order and suppressed that part of the purchase order from the Court which contained the
clause regarding jurisdiction.
The non-applicant/plaintiff filed its reply to the said application reiterating the averments
made in the plaint. It reiterated that it had made huge investments at Nagpur on the assurance made by the
defendant No.1. The plaintiff, further, submitted in its reply that the cause of action for suit has arisen
substantially, if not wholly, within the territorial jurisdiction of the learned Court at Nagpur. Goods were
supplied from Nagpur and the cost thereof is received at Nagpur and that the goods have also been
delivered at Nagpur. Substantial part of the claims in the plaint was on account of damages etc. for breach
of Memorandum of Understanding (in short ‘MoU’) and the breach of assurances given by the defendant
No.1. The plaintiff, therefore, submitted that if the substantial cause of action arises out of damages on
other counts and if the small part of the claim arises out of purchase order, the claim cannot be
separated and, therefore, it was in the interest of justice that the Court should entertain the present suit.
3.The learned trial Court, after considering the rival contentions raised on behalf of the parties,
found that the suit was outcome of the damages caused to the Unit of the plaintiff because of the breach of
the contract. He further observed that the letter of termination was received by the plaintiff at Nagpur. It is
further observed in the order that the term about jurisdiction pointed out on behalf of the defendants was
relating to the breach of contract under order of purchase and not relating to the damage caused to the
plaintiff by termination of the entire contract which was admittedly for the life time. The learned trial
Court, therefore, held that the cause of action to file present suit arises at Nagpur and, therefore, directed
the suit to proceed according to law.
4. Questioning for quashing the order passed by Joint Civil Judge, Senior Division, Nagpur Civil
Revision was filed before the High Court by the respondents. It was submitted that the substantial
part of the claim arises out of four purchase orders which came to be placed by defendant No.1 with the
plaintiff. All the purchase orders ousted the jurisdiction of all Courts except the Court at Pune. Except these
purchase orders there was no other written contract. Since the suit is mainly based on the cause of
action arising out of said purchase orders which ousted the jurisdiction of Courts except the Court situated
at Pune, though there may be ancillary cause of action the ouster clause in the purchase order governs the
proceedings between the parties.
5. Reference was made to various decisions of this Court in Hakam Singh v. M/s. Gammon (India)
Ltd., AIR 1971 SC 740, Hanil Era Textiles Ltd. v. Puromatic Filters (P) Ltd., 2004 (4) SCC 671 and New
Moga Transport Company v. United India Insurance Co. Ltd. and Ors., 2004 (4) SCC 677. The
plaintiff-appellant before this Court referred to various MoU dated 6.11.1996 and submitted that the same
related to the technical terms between the parties. As per the said terms the plaintiff was entitled to receive
7 moulds but it was given 4 moulds. There was no ouster clause in the said MoU and, therefore, suit for
breach of terms would not be covered by the ouster clause.
6. Reference has also been made to various communications dated 9.10.1993, 25.5.1996,
30.11.1996 and 23.9.1997 to substantiate the stand that assurance was given by defendant No.1 to the
plaintiff that the plaintiff would be its life time supplier. Relying on the provisions of Order II, Rule 2 of
CPC it was submitted that the suit is required to include the whole of the claim which the plaintiff was
entitled to make in respect of the cause of action. Therefore, it was necessary for it to join all causes of
action and since only insignificant part of cause of action was governed by the purchase orders the suit
filed at Nagpur will not be governed by the ouster clause.
7. The High Court referred to various purchase orders and conditions and averments in the plaint.
With reference to the averments held that the claims were referable to the purchase orders. The averments
in para 29 indicated that they were referable to MoU dated 6.11.1996. According to the High Court
perusal of the purchase orders indicated that the said MoU was also a part of the purchase orders. With
reference to Condition No.20 of the purchase orders it was held that only the Pune Court had jurisdiction in
all the matters arising out of the purchase orders. Accordingly, the High Court held that the suit is based on
several causes of action and it was open to the plaintiff to file a suit for causes of action not related to
purchase order at Nagpur and to file another suit arising out of cause of action related to the purchase
orders at Pune.
8. Accordingly, the order was passed for return of the plaint.
9. In support of the appeal, with reference to the order of the trial Court it was submitted that in para
60 it was categorically held that the Court at Nagpur had jurisdiction to try the suit. The High Court
accepted that by operation of Order II, Rule 2, CPC it was permissible to raise several causes of action
and there was no ouster clause in that sense. The main relief is for damages and costs incurred. The
purchase order related only to part of the relief claimed. Therefore, it was submitted that the trial Court’s
view should not have been interfered with.
10. In response, learned counsel for the respondents submitted that the High Court has noted that
the purchase orders clearly excluded the jurisdiction and, therefore, the High Court’s view is irreversible.
11. The relevant portion of the purchase orders which are identical reads as follows:
“Notes: 1. The moulds will be designed and manufactured as per the following:
 (1) The memorandum of understanding (MoU) dated 6th November 1996, executed
between M/s. Bal M/s. Marubent Corporation, M/s. Takahashi Seiki Co., Ltd., M/s.
Tokyo R&D Co. Ltd. and M/s. Sundeep Polymers Pvt. Ltd. and amendment thereto as
may be agreed to between the parties from time to time as per the project needs.
(2) Technical assistance agreement dated 11/2/97 between Takahashi Seiki Co. Ltd. and
Sundeep polymers Ltd.
Terms and conditions
1. Price
Prices are firm and for free delivery at our works
6. Payment
60% advance alongwith the order.
20% after submission of T1 sample
20% after final approval of sample and mould
12. Guarantee mould should be guaranteed for quality, precision, reliability and also for
workmanship and performance, use of material and design we should be able to get
minimum 3,00,000 pieces with normal maintenance conditions.
15. The prices and terms and conditions in this order will be taken as firm and cannot be
changed till the order is fully executed.
20. This contract shall be deemed to have been entered into at Pune and only Pune Courts
will have jurisdiction in all matters arising out of this Order.”
Some of the pleadings in the plaint also need to be noted.
“29. In the year 1995 or near about, the lst defendant finalized the new model scooter in the
Japan, Code name alpha-4 in co- operation with the defendant No.5. Since this was to
be a modern design vehicle, having entire plastic body, it was important to select a
top quality supplier in India for the development of supplier of plastic parts for alpha-4
vehicle and such similar models in the future.
(a) The 1 defendant placed an order for a supply of a part of the moulds for the alpha-4 from
the defendant No.5 and raised a purchase order No.529911 dated 6/11/1996 on the 5th
defendant for an pproximate amount of Rs.JPY 175 Million. The plaintiff craves leave to
refer to and rely upon the aforesaid Purchase Order of the 1 defendant when produced.
(b) A Memo of Understanding (MoU) has been entered into by various parties involved in
the development of Alpha-4, viz. the plaintiff, defendant Nos.1 and 3, Takahashi Seiki
and another Japanese Company Tokyo R&D Co. Ltd. This MoU spelt out the role and
obligation of each party in the development of the plastic parts of the Alpha-4. The 1st
defendant also spelt out its commitment in buying the plastic parts from the moulds
supplied by the 5th defendant and for which the plaintiff was to set up additional
investments. Hereto enclosed and annexed as document No.XXIV is a copy of the
aforesaid MoU.”
33. In line with the aforesaid understanding between the plaintiff and the 1st, 4th and 5th
defendants and also relying upon the MoU and the 1st defendant’s letter dated
30.11.1996 the plaintiff agreed to accept the 4 sets of Purchase Orders for the
manufacture of 10 Alpha-4 moulds, raised by the 1st defendant, at an initial payment of
Rs. 296.7 lacs. These Purchase Orders are:
(a) No.541024 dated 12/2/1997 for Rs.148.5 lacs.
(b) No.541023 dated 12/2/1997 for Rs.111.5 lacs.
(c) No.2121209 dated 22/2/1998 for Rs 35 lacs.
(d) No.20122154 dated 16/3/1998 for Rs.1.7 lacs.
The aforesaid Purchase Orders were in the line with the MoU and the Technical Assistance
Agreement, as already spelt out, and the same also mentioned on the Orders.”
 12. In Sopan Sukhdeo Sable and Ors. v. Assistant Charity Commissioner and Ors., 2004 (3) SCC
137, it was inter-alia held as follows:
“16. Submission of learned counsel for respondent No.2-trust was that requirement of law
being reading the plaint in its totality, the appellants cannot take the plea that they would
give up or relinquish some of the reliefs sought for. That would not be permissible. The
plea clearly overlooks the basic distinction between statements of the facts disclosing
cause of action and the reliefs sought for. The reliefs claimed do not constitute the cause
of action. On the contrary, they constitute the entitlement, if any, on the basis of
pleaded facts. As indicated above, Order VI, Rule 2 requires that pleadings shall contain
and contain only a statement in a concise form of the material facts on which the party
pleading relies for his claim. If the plea of Mr. Savant, learned counsel for the
respondent-trust is accepted the distinction between the statement of material facts and
the reliance on them for the claim shall be obliterated. What is required in law is not the
piecemeal reading of the plaint but in its entirety. Whether the reliefs would be granted
on the pleaded facts and the evidence adduced is totally different from the relief claimed.
All the reliefs claimed may not be allowed to a party on the pleadings and the evidence
adduced. Whether part of the relief cannot be granted by the Civil Court is a different
matter from saying that because of a combined claim of reliefs the jurisdiction is ousted
or no cause of action is disclosed. Considering the reliefs claimed vis-a-vis the
pleadings would not mean compartmentalization or segregation, in that sense. The plea
raised by the respondent-trust is therefore clearly unacceptable.
17. Keeping in view the aforesaid principles the reliefs sought for in the suit as quoted supra
have to be considered. The real object of Order VII, Rule 11 of the Code is to keep out of
Courts irresponsible law suits. Therefore, the Order X of the Code is a tool in the
hands of the Courts by resorting to which and by searching examination of the party in
case the Court is prima facie of the view that the suit is an abuse of the process of the
Court in the sense that it is a bogus and irresponsible litigation, the jurisdiction under
Order VII, Rule 11 of the Code can be exercised.
18. As noted supra, Order VII, Rule 11 does not justify rejection of any particular portion of
the plaint. Order VI, Rule 16 of the Code is relevant in this regard. It deals with ‘striking
out pleadings’. It has three clauses permitting the Court at any stage of the
proceeding to strike out or amend any matter in any pleading, i.e. (a) which may be
unnecessary, scandalous, frivolous or vexatious, or, (b) which may tend to prejudice,
embarrass or delay the fair trial of the suit, or, (c) which is otherwise an abuse of the
process of the Court.
19. Order VI, Rule 2(1) of the Code states the basic and cardinal rule of pleadings and
declares that the pleading has to state material facts and not the evidence. It mandates that
every pleading shall contain, and contain only, a statement in a concise form of the
material facts on which the party pleading relies for his claim or defence, as the case may
be, but not the evidence by which they are to be proved.
20. There is distinction between ‘material facts’ and ‘particulars’. The words ‘material facts’
show that the facts necessary to formulate a complete cause of action must be stated.
Omission of a single material fact leads to an incomplete cause of action and the
statement or plaint becomes bad. The distinction which has been made between ‘material
facts’ and ‘particulars’ was brought by Scott, L.J. in Bruce v. Odhams Press Ltd., (1936)
1 KB 697, in the following passage :
The cardinal provision in Rule 4 is that the statement of claim must state the material
facts. The word “material” means necessary for the purpose of formulating a complete
cause of action; and if any one “material” statement is omitted, the statement of claim
is bad; it is “demurrable” in the old phraseology, and in the new is liable to be “struck
out” under R.S.C. Order XXV, Rule 4 (See Philipps v. Philipps, (1878) 4 QBD 127; or
“a further and better statement of claim” may be ordered under Rule 7. The function of
“particulars” under Rule 6 is quite different. They are not to be used in order to fill
material gaps in a demurrable statement of claim - gaps which ought to have been filled
 by appropriate statements of the various material facts which together constitute the
plaintiff’s cause of action. The use of particulars is intended to meet a further and quite
separate requirement of pleading, imposed in fairness and justice to the defendant.
Their function is to fill in the picture of the plaintiff’s cause of action with information
sufficiently detailed to put the defendant on his guard as to the case he had to meet and
to enable him to prepare for trial.
The dictum of Scott, L.J. in Bruce case (supra) has been quoted with approval by this
Court in Samant N. Balkrishna v. George Fernandez, 1969 (3) SCC 238, and the
distinction between “material facts” and “particulars” was brought out in the
following terms:
The word ‘material’ shows that the facts necessary to formulate a complete cause of
action must be stated. Omission of a single material fact leads to an incomplete cause of
action and the statement of claim becomes bad. The function of particulars is to
present as full a picture of the cause of action with such further information in detail
as to make the opposite party understand the case he will have to meet”.
Rule 11 of Order VII lays down an independent remedy made available to the defendant to
challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. The
law ostensibly does not contemplate at any stage when the objections can be raised, and also does not say
in express terms about the filing of a written statement. Instead, the word ‘shall’ is used clearly implying
thereby that it casts a duty on the Court to perform its obligations in rejecting the plaint when the same is
hit by any of the infirmities provided in the four clauses of Rule 11, even without intervention of the
defendant. In any event, rejection of the plaint under Rule 11 does not preclude the plaintiffs from
presenting a fresh plaint in terms of Rule 13.
xx xx xx xx xx
22. Under Order II, Rule 1 of the Code which contains provisions of mandatory nature, the
requirement is that the plaintiffs are duty bound to claim the entire relief. The suit has to
be so framed as to afford ground for final decision upon the subjects in dispute and to
prevent further litigation concerning them. Rule 2 further enjoins on the plaintiff to
include the whole of the claim which the plaintiff is entitled to make in respect of the
cause of action. If the plaintiff omits to sue or intentionally relinquishes any portion of his
claim, it is not permissible for him to sue in respect of the portion so omitted or
relinquished afterwards. If the plaintiffs as contended by Mr. Mohta want to relinquish
some reliefs prayer in that regard shall be done before the trial Court. A reading of the
plaint and the reliefs along with the contents of the plaint goes to show that the main
dispute relates to the question of continuance of tenancy and the period of tenancy. They
are in essence unrelated with the other reliefs regarding enquiry into the affairs of the
trust. Such enquiries can only be undertaken under Section 50 of the Act. For instituting
the suit of the nature specified in Section 50, prior consent of the Charity
Commissioner is necessary under Section 51. To that extent Mr. Savant is right that the
reliefs relatable to Section 50 would require a prior consent in terms of Section 51. If the
plaintiffs give up those reliefs claimed in accordance with law, the question would be
whether a cause of action for the residual claims/reliefs warrant continuance of the suit.
The nature of the dispute is to be resolved by the Civil Court. The question of tenancy
cannot be decided under Section 50 of the Act. Section 51 is applicable only to suits
which are filed by a person having interest in the trust. A tenant of the trust does not fall
within the category of a person having an interest in the trust. Except relief in Para-D of
the plaint, the other reliefs could be claimed before and can be considered and
adjudicated by the Civil Courts and the bar or impediment in Sections 50 and 51 of the
Act will have no relevance or application to the other reliefs. That being so, Sections 50
and 51 of the Act would not have any application to that part of the relief which relates to
question of tenancy, the term of tenancy and the period of tenancy. The inevitable
conclusion, therefore, is that Courts below were not justified in directing rejection of the
plaint. However, the adjudication in the suit would be restricted to the question of
tenancy, terms of tenancy and the period of tenancy only. For the rest of the reliefs, the
 plaintiffs shall be permitted within a month from today to make such application as
warranted in law for relinquishing and/or giving up claim for other reliefs.”
13. In Om Prakash Srivastava v. Union of India and Anr., 2006 (6) SCC 207, it was held as
follows:
“9. By “cause of action” it is meant every fact, which, if traversed, it would be necessary for
the plaintiff to prove in order to support his right to a judgment of the Court. In other
words, a bundle of facts, which it is necessary for the plaintiff to prove in order to
succeed in the suit. (See Bloom Dekor Ltd. v. Subhash Himatlal Desai and Ors., 1994 (6)
SCC 322.)
10. In a generic and wide sense (as in Section 20 of the Civil Procedure Code, 1908)
“cause of action” means every fact, which it is necessary to establish to support a right to
obtain a judgment. (See Sadanandan Bhadran v. Madhavan Sunil Kumar, 1998 (6)
SCC 514.)
11. It is settled law that “cause of action” consists of bundle of facts, which give cause to
enforce the legal inquiry for redress in a Court of law. In other words, it is a bundle of
facts, which taken with the law applicable to them, gives the plaintiff a right to claim
relief against the defendant. It must include some act done by the defendant since in the
absence of such an act no cause of action would possibly accrue or would arise. (See
South East Asia Shipping Co. Ltd. v. Nav Bharat Enterprises Pvt. Ltd. and others, 1996
(3) SCC 443.)
12. The expression “cause of action” has acquired a judicially settled meaning. In the
restricted sense “cause of action” means the circumstances forming the infraction of the
right or the immediate occasion for the reaction. In the wider sense, it means the
necessary conditions for the maintenance of the suit, including not only the infraction
of the right, but also the infraction coupled with the right itself. Compendiously, as
noted above the expression means every fact, which it would be necessary for the
plaintiff to prove, if traversed, in order to support his right to the judgment of the
Court. Every fact, which is necessary to be proved, as distinguished from every piece of
evidence, which is necessary to prove each fact, comprises in “cause of action”. (See
Rajasthan High Court Advocates’ Association v. Union of India and Ors. 2001 (2)
SCC 294.)
13. The expression “cause of action” has sometimes been employed to convey the restricted
idea of facts or circumstances which constitute either the infringement or the basis of a
right and no more. In a wider and more comprehensive sense, it has been used to denote
the whole bundle of material facts, which a plaintiff must prove in order to succeed.
These are all those essential facts without the proof of which the plaintiff must fail in his
suit. (See Gurdit Singh v. Munsha Singh, 1977 (1) SCC 791.)”
14. The expression “cause of action” is generally understood to mean a situation or state of facts
that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to
one or more bases of suing; a factual situation that entitles one person to obtain a remedy in court from
another person. (See Black’s Law Dictionary). In Stroud’s Judicial Dictionary a “cause of action” is stated
to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if
traversed, the plaintiff must prove in order to obtain judgment. In “Words and Phrases” (4th Edn.) the
meaning attributed to the phrase “cause of action” in common legal parlance is existence of those facts,
which give a party a right to judicial interference on his behalf. (See Navinchandra N. Majithia v. State of
Maharashtra and Ors., 2000 (7) SCC 640.)
15. In Halsbury Laws of England (Fourth Edition) it has been stated as follows:
“Cause of action has been defined as meaning simply a factual situation the existence of which
entitles one person to obtain from the Court a remedy against another person. The phrase has been
held from earliest time to include every fact which is material to be proved to entitle the plaintiff
to succeed, and every fact which a defendant would have a right to traverse. ‘Cause of action’ has
 also been taken to mean that particular act on the part of the defendant which gives the
plaintiff his cause of complaint, or the subject matter of grievance founding the action, not
merely the technical cause of action”.
16. As observed by the Privy Council in Payana v. Pana Lana, (1914) 41 IA 142, the rule is
directed to securing the exhaustion of the relief in respect of a cause of action and not to the inclusion in
one and the same action or different causes of action, even though they arise from the same transaction.
One great criterion is, when the question arises as to whether the cause of action in the subsequent suit is
identical with that in the first suit whether the same evidence will maintain both actions. (See
Mohammad Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78.)
17. It would be appropriate to quote para 61 of the said judgment, which reads as follows:-
“(1) The correct test in cases falling under Order II, Rule 2, is whether the claim in the new
suit is in fact founded upon a cause of action distinct from that which was the foundation
of the former suit (Moonshee Buzloor Fuheer v. Shumroonnissa Begum, (1967)11 Moo I
551 : 2 Bar 259 (P.C.).)
(2) The ‘cause of action’ means every fact which will be necessary for the plaintiff to prove
it traversed in order to support his right to the judgment (Real v. Brown; (1889) 22
Q.B.O. 138: 58 L.J. Q.B. 476).
(3) If the evidence to support the two claims is different, then the causes of action are also
different. (Brunsoon v. Nurnphroy, 1884 Q.B.O. 141. : 53 L.J.Q. B. 476).
(4) The causes of action in the two suits may be considered to be the same if in substance
they are identical (Brunsoon v. Numphroy, supra).
(5) The cause of action has no relation whether to the defence that may be set up by the
defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It
refers to media upon which the plaintiff asks the Court to arrive a conclusion in his
favour. [Mst. Chand Kour v. Pratap Singh, (1887)15 IA 156]. This observation was made
by Lord Watson in a case under Section 43 of the Act of 1880 (corresponding to Order II,
Rule 2) where plaintiff made various claim in the same suit”.
18. Learned counsel for the appellant submitted that a separate suit shall be filed in relation to
purchase orders at Pune and necessary amendments to the plaint filed at Nagpur shall be made. It shall be
open to the respondents-defendants to raise such objections and to take such stand as are available. In view
of above, we dispose of the appeal with the following directions:
(1) It shall be open to the appellant to file a separate suit in relation to cause of action if any
relating for the purchase orders, at Pune as was submitted by learned counsel for the
appellant.
(2) If the appellant is so advised it may move for amendment of the suit at Nagpur.
(3) It shall be open to the respondents-defendants to raise all objections and take such
pleas as are available in law.
19. Appeal is disposed off with no order as to costs.
Appeal disposed off.

[2008 (1) TNCJ 41 (SC)]

SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND D. K. JAIN, JJ.
HARIDAS DAS …Petitioner
Versus
SMT. USHA RANI BANIK AND OTHERS …Respondents
[Civil Appeal No. 7948 of 2004, decided on 16th July, 2007]
 Contempt of Courts Act, 1971—Section 12—Contempt—Bare reading of statement
makes it clear that those amount to a scurrilous attack on integrity, honesty and judicial competence
and impartiality of Judges—It is offensive and intimidating—Apology of contemnor seems to be not
genuine—This is more so because he wanted to justify statement, made in his reply—Hence
contemnor is guilty of contempt—Sentenced to imprisonment. (Paras 25, 26, 30, 31
and 32)
Case law:—(1911) 86 Law Ed. 192; AIR 1970 SC 1318; 1974 AC 273; 1900 (2) QB 36; AIR 1996
SC 2481; AIR 1936 PC 141; 1963 (1) QB 696; 1957 (1) QB 73; 1970 (1) All ER 1079; (1968) 3 All ER
304; (1981) 1 All ER 244; AIR 1953 SC 75; 1954 (348) US 11; 1972 (1) All ER 997; 1980 (3) SCC 311;
1978 (3) SCC 339; AIR 1954 SC 10; AIR 1971 SC 221; AIR 1971 SC 1132.—referred.
JUDGMENT
DR. ARIJIT PASAYAT, J.—”Judge bashing” and using derogatory and contemptuous language
against Judges has become a favourite pastime of some people. These statements tend to scandalize and
lower the authority of the Courts and can not be permitted because, for functioning of democracy, an
independent judiciary to dispense justice without fear and favour is paramount. Its strength is the faith and
confidence of the people in that institution. That cannot be permitted to be undermined because that will be
against the public interest.
2. Judiciary should not be reduced to the position of flies in the hands of wanton boys. Judge
bashing is not and cannot be a substitute for constructive criticism.
3. During hearing of Civil Appeal No. 7948 of 2004-it was noted that the contemnor had filed an
application styled as “I.A for interim directions” purported with a prayer to initiate contempt
proceedings against respondent No.4-Smt. Sharmista Das. Reference was made to a letter purported to
have been written by respondent No.4 and sent to the President of India praying for removal of the then
Chief Justice of India for his proved incapacity, misbehaviour and for appointment of Mr. Apu Banik
(Contemnor). It was further stated as follows:
“That a dispassionate study without harbouring any pre-conceived motion of water-tight
evidences, under possession, will prove beyond doubt how incapable, corrupt and worthless is the
present Chief Justice of the Supreme Court.” (emphasis supplied)
4. The apparent course for the tirade, as appears from the petition itself is an order dated 16.4.2004
in SLP No.6751 of 2004. The letter purported to have been written by one Sharmista Das to the President
of India was annexed to the petition. Some portion of the letter forms part of the petition. Finding this
statement in the IA to be contemptuous, notice was issued to the contemnor to show cause as to why
proceedings for contempt shall not be initiated. Contemnor filed his reply to the notice. Certain
statements in the reply were found to be more contemptuous, particularly para 4 thereof. Even though the
contemnor wanted to withdraw the IA and tender regrets, it was not considered desirable to accept the
prayer. Therefore, by order dated 2.5.2006 the matter was adjourned granting the contemnor opportunity to
appear and file further reply/affidavit if he wanted to do so.
5. By order dated 26.2.2007, it was observed as follows:
“In the application reference was made to some parts of the letter purportedly written by
respondent No.4. At this juncture it is relevant to note that the name of respondent No.4 was
deleted at the request of the appellant. In the show cause reply the contemnor made allegations
against numerous judicial officers (Judges), stating that they are as immoral, inefficient,
incompetent and bribe-takers. The said statement was felt to be contemptuous by this Court and
the contemnor was put to notice as to why action shall not be taken for making the statement. At
this juncture it is also necessary to refer to some other parts of the “affidavit Part-I (reply)” filed
by the contemnor which are per se contemptuous. He has stated as follows at para 7:
(1) “The allegation in this case was irrelevant and uncalled for as the truth was far from the
spirit of the highly biased observation.” (underlined
for emphasis)
This was with respect to the order passed on 23.2.2006 by this Court while dealing with
the appeal.
 (2) It is stated at para 14 that the case was “Unprecedentedly taken away/diverted from the
Court of one Hon’ble Judge who dealt with the case more than anybody else. It is stated
that “numerous legal practitioners in the Supreme Court raised their eyebrows”
because of this. The contemnor has made a statement that only the Judge who
granted leave is entitled to hear the civil appeal.
(3) It is also to be noted that allegations have been made against the Judges of the Guwahati
High Court that they got eliminated witness, Smt. Ila Rani Das by stooping low.
(4) The contemnor in para 12 has also made a statement that the unfair means were adopted
by the appellant and his counsel in misleading the Judges which would be clear if paras 8
and 9 of the judgment dated 14.11.2003 of the Guwahati High Court in Review Petition
No. 76/2002 are perused.
As noted above, the statements are per se contemptuous. The contemnor who is present
in Court is directed to show cause within a period of three weeks as to why action for
contempt shall not be taken against him for making aforesaid statements.
The matter shall be listed on 26th March, 2007, when the contemnor shall appear in
person. Ordered accordingly”.
6. At this juncture, it would be necessary to quote para 4 of the reply filed by the contemnor. The
same reads as follows:
“4. The deponent had personally met Hon’ble Chief Justice of India in his office Chamber on
6.8.2001 and submitted to His Lordship a memorandum relating to judicial corruption
and offered his cooperation to prove that numerous judicial officers (Judges) are
immoral, inept, inefficient, incompetent and bribe-takers. “
(emphasis supplied)
7. When the matter was taken up for hearing on 15.2.2007, the contemnor stated that though he had
signed the IA in question he did not know the contents as well as the contents of the accompanying letter.
He further stated that he is in a position to justify the statement in para 4 of the show cause reply. It was
further stated by him that he had made similar allegations against certain Judges of the Guwahati High
Court and though initially contempt proceedings were initiated, they were dropped. This according to
him was proof of the fact that the Guwahati High Court accepted that whatever allegations he had made
touching the integrity of the Judges were correct.
8. He stated that contempt criminal No.9/2001 was initiated against him by the High Court as he
alleged corruption against the then Chief Justice R.S. Mongia, Justices Iqbal Ahmad Ansari, A.K.
Pattanaik, N.S. Singh, G.N. Sharma and a District Judge and Additional District Magistrate and others. It
appears that the High Court perused the record and the earlier orders passed by the Court and taking
“overall view of the entire matter”, felt that there was no need to peruse further and need to be closed.
9. The contemnor who appeared in person submitted before us that if he has committed any
mistake, he may be excused and that he was offering unconditional apology. At the same time he
asserted that he would be in a position to substantiate the allegations in para 4 of the affidavit filed by him,
and the allegations against the then Judges. He also filed an affidavit for “expeditious rectification
of the judgment dated 21.3.2006”. It is to be noted that after the judgment was delivered a review
application was filed which was dismissed. The affidavit appeared to be a further attempt in abusing the
process of the Court.
10. Further, the contemnor has made a malicious allegation that the appeal should not have been
heard by a Bench different from the one which granted leave. His affidavit in this regard reads as follows:
“It is also pertinent to mention here with both Hon’ble Chief Justice Y.K. Sabharwal and Hon’ble
Mr. Justice K.G. Balakrishnan told the deponent that the case only be listed in the Court of the
Justice who granted leave as a matter of unwritten rule when the deponent on different occasions
tried to get the case mentioned in their respective Courts. Both said that only Justice G.P. Mathur
can consider it.
It is worth mentioning that Hon’ble Registrar General Mr. Jain himself told the deponent that
Hon’ble Justice G.P. Mathur who granted leave is only entitled to hear the Civil Appeal.
 But when the case was unprecedentedly taken away/diverted from the court of Justice G.P. Mathur
who dealt with the case more than anybody else, numerous legal practitioners in the Supreme
Court raised their eyebrows.”
11. At the outset, we may say that though the contemnor claim to be an illiterate, various petitions
filed by him show that he is really not so. Reference has been made by him to various decisions, quotations
from authorities while he argued the cases in person for some of the parties in the Civil Appeal and before
the High Court. May be that somebody else is behind him, but that does not in any way dilute the gravity
of the acts done by him.
12. There is guarantee of the Constitution of India that there will be freedom of speech and writing,
but reasonable restriction can be imposed. It will be of relevance to compare the various suggestions as
prevalent in America and India. It is worthwhile to note that all utterances against a Judge or concerning a
pending case do not in America amount to contempt of Court. In Article 19 the expression “reasonable
restrictions” is used which is almost at par with the American phraseology “inherent tendency” or
“reasonable tendency”. The Supreme Court of America in Bridges v. California, (1911) 86 Law Ed. 192
said:
“What finally emerges from the clear and present danger cases is a working principle that the
substantive evil must be extremely serious and the degree of imminence extremely serious and the
degree of imminence extremely high before utterances can be punished.”
The vehemence of the language used is not alone the measure of the power to punish for contempt
of Court. The fires which it kindles must constitute an imminent, not merely a likely, threat to the
administration of justice. The stream of administration of justice has to remain unpolluted so that purity of
Court’s atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are,
therefore, required to be well taken care of to maintain the sublimity of Court’s environment; so also to
enable it to administer justice fairly and to the satisfaction of all concerned. To similar effect were
the observations of Lord Morris in Attorney General v. Times Newspapers, 1974 AC 273 at page 302. It
was observed that when unjustifiable interference is suppressed it is not because those charged with the
responsibilities of administration of justice are concerned for their own dignity, it is because the very
structure of ordered life is at risk if the recognised Courts of the Land are so flouted and their authority
wanes and is supplanted.
13. There is no doubt that the Court like any other institution does not enjoy immunity from fair
criticism. No Court can claim to be always right although it does not spare any effort to be right
according to the best of the ability, knowledge and judgment of the Judges. They do not think themselves to
be in possession of all truth to hold that wherever others differ from them are in error. No one is more
conscious of his limitations and fallibility than a Judge. But because of his training and the assistance he
gets from learned counsel he is apt to avoid mistakes more than others. While fair and temperate criticism
of the Court even if strong, may not be actionable, but attributing improper motives or tending to bring
Judges or Courts into hatred and contempt or obstructing directly or indirectly with the functioning of
Courts is serious contempt of which notice must be and will be taken. Respect is expected not only from
those to whom the judgment of the Court is acceptable but also from those to whom it is repugnant. Those
who err in their criticism by indulging in vilification of the institution of Court, administration of justice
and the instruments through which the administration acts, should take heed for they will act at their
own peril. To similar effect were the observations of Hidayatullah, C.J., (as the learned Judge was then) in
R.C. Cooper v. Union of India, AIR 1970 SC 1318.
14. There is an abundance of empirical decisions upon particular instances of conduct which has
been held to constitute contempt of Court. We shall now refer to a few. Lord Russel of Killowen, L.C. J,
has laid down in Reg v. Gray, 1900 (2) QB 36 at 40 as follows:
“Any act done or writing published calculated to bring a Court or a Judge of the Court into
contempt, or to lower his authority, is a contempt of Court.”
15. It cannot be denied that judgments are open to criticisms and in the said case it was observed :
“Judges and Courts are alike open to criticism and if reasonable argument or expostulation is
offered against any judicial act as contrary to law or public good, no Court could or would treat
that as contempt of Court”. Indeed, Section 5 of the Act now provides that a person shall not be
guilty of contempt of Court for publishing any fair comment on the merits of any case which has
 been heard and finally decided. But, if such a defence is taken, it is always open to test whether
the publication alleged to be offending was by way of fair comment on the merits of the case or
was personal scurrilous abuse of a Judge as a Judge, for abuse of a Judge or a Court or attacks on
the personal character of a Judge are clearly punishable contempt. As stated in para 2 at page 21 of
Volume-9 of Halsbury’s Laws of England; Fourth Edition, “The punishment is inflicted, not for
the purpose of protecting either the Court as a whole or the individual Judges of the Court from a
repetition of the attack, but of protecting the public, and specially those who either voluntarily or
by compulsion are subject to the jurisdiction of the Court, from the mischief they will incur if
the authority of the tribunal is undermined or impaired.”
16. The view was echoed by this Court in Re. D.C. Saxena v. CJI, AIR 1996 SC 2481. In the same
volume of Halsbury’s Laws of England at para 27 it is stated thus:
“Any act done or writing published which is calculated to bring a Court or a Judge into contempt
or to lower its authority or to interfere with the due course of justice or the lawful process of the
Court, is a contempt of Court.”
17. The above proposition has been approved and followed by Lord Atkin in Andrew Paul Terence
Ambrad v. The Attorney General of Trinidad and Tobago, AIR 1936 PC 141. It was observed as follows:
“No wrong is committed by any member of the public who exercised the ordinary right of
criticism in good faith in private or public the public act done in the seat of justice. The path of
criticism is public way, the wrong headed are permitted to err therein, provided that members of
the public abstain from imputing improper motives to those taking part in the administration of
justice and are genuinely exercising a right of criticism and not acting in malice or attempting to
impart the administration of justice, they are immune. Justice is not a cloistered virtue; she must be
allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men”:
Lord Justice Donovan in Attorney General v. Butterworth, 1963(1) QB 696 after making reference
to Req. v. Odham’s Press Ltd ex parte A.G., 1957(1) QB 73 said: “whether or not there was an intention to
interfere with the administration of justice is relevant to penalty not to quit”. This makes it clear that an
intention to interfere with the proper administration of justice is an essential ingredient of the offence of
contempt of Court and it is enough if the action complained of is inherently likely so to interfere. In Morris
v. Crown Office, 1970(1) All E.R. 1079 page 1081, Lord Denning M.R. said: that the course of justice must
not be deflected or interfered with. Those who do it strike at the very foundations of our society. In the
same case, Lord Justice Solmon spoke:
“The sole purpose of proceedings for contempt is to give our Courts the power effectively to
protect the rights of the public by ensuring that the administration of justice shall not be obstructed
or prevented.”
Frank Further, J. in Offutt v. U.S., 1954(348) U.S. 11 expressed his view as follows:
“It is a mode of vindicating the majesty of law, in its active manifestation against obstruction and
outrage.”
In Jennison v. Baker, 1972(1) All E.R. 997 at page 1006 it is stated:
“The law should not be seen to sit by limply, while those who defy it go free, and those who seek
its protection lose hope.”
18. Chinappa Reddy, J. speaking for the Bench in Advocate General, State of Bihar v. Madhya
Pradesh Khair Industries, 1980 (3) SCC 311, citing those two decisions in the cases of Offutt and Jennison
(supra) stated thus:
“.....It may be necessary to punish as a contempt a cause of conduct which abuses and makes a
mockery of the judicial process and which thus extends its pernicious influence beyond the parties
to the action and affects the interest of the public in the administration of justice. The public have
an interest, an abiding and a real interest, and vital stake in the effective and orderly administration
of justice, because unless justice is so administered, there is the peril of all rights and liberties
perishing. The Court has the duty of protecting the interest of the public in the due administration
of justice and, so, it is entrusted with the power to commit for contempt of Court not in order to
protect the dignity of the Court against insult or injury as the expression “Contempt of Court”
may seem to suggest but to protect and to vindicate the right of the public and the administration
of justice shall not be prevented, prejudiced, obstructed or interfered with.”
 19. Krishna Iyer, J. in his separate judgment In Re. S. Mulgaokar, 1978 (3) SCC 339 while giving
broad guidelines in taking punitive action in the matter of contempt of Court has stated:
“.....If the Court considers the attack on the Judge or Judges scurrilous, offensive, intimidatory or
malicious beyond condonable limits, the strong arm of the law must, in the name of public interest
and public justice, strike a blow on him who challenges the supremacy of the rule of law by
fouling its source and stream”
20. In the case of Brahma Prakash Sharma and others v. The State of Uttar Pradesh, AIR 1954 SC
10, this Court after referring to various decisions of the foreign countries as well as of the Privy Council
stated thus:
“It will be an injury to the public if it tends to create an apprehension in the minds of the people
regarding the integrity, ability or fairness of the Judge or to deter actual and prospective litigants
from placing complete reliance upon the Court’s administration of justice, or if it is likely to cause
embarrassment in the mind of the Judge himself in the discharge of his judicial duties. It is well
established that it is not necessary to prove affirmative that there has been an actual interference
with the administration of justice by reason of such defamatory statement; it is enough if it is
likely or tends in any way to interfere with the proper administration of law.”
21. It may be noted here that in the illustrated case Re: S. Mulgaokar’s case (supra) it was held that
the judiciary cannot be immune from criticism. But, when such criticism is based on obvious distortion or
gross mis-statement and make in a manner which seems designed to lower respect of the judiciary and
destroy public confidence in it, it cannot be ignored.
22. Though certain imputations against the Judge may be only libellous against that particular
individual, it may at times amount to contempt also depending upon the gravity of the allegations. In
Brahma Prakash Sharma’s case (supra) this Court held that a defamatory attack on a Judge may be a libel
so far as the Judge is concerned and it would be open to him to proceed against the libellor in a proper
action if he so chooses. If, however, the publication of the disparaging statement is calculated to interfere
with the due course of justice or proper administration of law by such Court, it can be punished separately
as contempt. The same view has been taken in Perspective Publications (P) Ltd. v. The State of
Maharashtra, AIR 1971 SC 221 and C.K. Daphtary and others v O.P. Gupta and others, AIR 1971 SC
1132. Therefore, apart from the fact that a particular statement is libelous, it can constitute criminal
contempt if the imputation is such that the same is capable of lowering the authority of the Court. The
gravity of the aforesaid statement is that the same would scandalize the Court.
23. The right to criticize an opinion of a Court, to take issue with it upon its conclusions as to a legal
proposition, or question its conception of the facts, so long as such criticisms are made in good faith and are
in ordinarily decent and respectful language and are not designed to willfully or maliciously
misrepresent the position of the Court, or tend to bring it into disrespect, or lessen the respect due to the
authority to which a Court is entitled, cannot be questioned. The right of free speech is one of the greatest
guarantee to liberty in a free country like ours, even though that right is frequently and in many instances
outrageously abused. If any considerable portion of a community is led to believe that either because of
gross ignorance of the law or because of a wrong reason, it cannot rely upon the courts to administer justice
that portion of the community, upon some occasion, is very likely to come to the conclusion that it is better
not to take any chances on the courts failing to do their duty.
24. Judiciary is the bed rock and handmaid of democracy. If people lose faith in justice parted by a
Court of law, the entire democratic set up would crumble down. In this background, observations of Lord
Denning M.R. in Metropolitan Properties Ltd. v. Lennon, (1968) 3 All E.R. 304 are relevant: “Justice
must be rooted in confidence, and confidence is destroyed when right minded people go away thinking -
the Judge is biased.”
25. Considered in the light of the aforesaid position in law, a bare reading of the statements makes it
clear that those amount to a scurrilous attack on the integrity, honesty and judicial competence and
impartiality of Judges. It is offensive and intimidating. The contemnor by making such scandalising
statements and invective remarks has interfered and seriously shaken the system of administration of
justice by bringing it down to disrespect and disrepute. It impairs confidence of the people in the Court.
Once door is opened to this kind of allegations, aspersions and imputations, it may provide a handle to the
disgruntled litigants to malign the Judges, leading to character assassination. A good name is better than
good riches. Immediately comes to one’s mind Shakespeare’s Othello, Act II, Scene 3, 167:—
“Good name in man and woman, dear my Lord is the immediate jewel of their souls; who steals
my purse, steals trash; its something, nothing; ‘T was mine, its his, and has been slate to
thousands; But he that filches from me my good name, Robs me of that which not enriches him
And makes me poor indeed.”
26. Majesty of Law continues to hold its head high notwithstanding such scurrilous attacks made by
persons who feel the law Courts will absorb anything and every thing, including attacks on their honesty,
integrity and impartiality. But it has to be borne in mind that such divinity and magnanimity is not its
weakness but its strength. It generally ignores irresponsible statements which are anything but legitimate
criticism. It is to be noted that what is permissible is legitimate criticism and not illegitimate insinuation.
No Court can brook with equanimity something which may have tendency to interfere with the
administration of justice. Some people find judiciary a soft target because it has neither the power of the
purse nor the sword, which other wings of democracy possess. It needs no reiteration that on judiciary
millions pin their hopes, for protecting their life, liberty, property and the like. Judges do not have an easy
job. They repeatedly do what rest of us (the people) seek to avoid, make decisions, said David Pannick
in his book “Judges”. Judges are mere mortals, but they are asked to perform a function which is truly
divine.
27. What is contempt of Court has been stated in lucid terms by Oswald in Classic “Book on
Contempt of Court”. It is said:
“To speak generally, contempt of Court may be said to be constituted by any conduct that tends to
bring the authority and demonstration of law into disrespect and disregard or to interfere with or
prejudice parties, litigant or their witnesses during the litigation.”
“Contempt in the legal acceptance of the term, primarily signifies disrespect to that which is
entitled to legal regard, but as a wrong purely moral or affecting an object not possessing a legal
status, it has in the eye of the law no existence. In its origin all legal contempt will be found to
consist in an offence more or less direct against the sovereign himself as the fountainhead of law
and justice or against his palace where justice was administered. This clearly appears from old
cases.”
28. Lord Diplock, speaking for the Judicial Committee in Chokolingo v. Attorney General of
Trinidad and Tobago, (1981) 1 All E.R. 244, summarized the position thus:
“Scandalising the Court is a convenient way of describing a publication which, although it does
not relate to any specific case either part of pending or any specific Judge, is a scurrilous attack on
the judiciary as a whole which is calculated to undermine the authority of the Courts and public
confidence in the administration of justice. Thus, before coming to the conclusion as to whether or
not the publication amounts to a contempt, what will have to be seen is, whether the criticism is
fair, temperate and made in good faith or whether it is something directed to the personal character
of a Judge or to the impartiality of a Judge or Court. A finding, one way of the other, will
determine whether or nor the act complained of amounted to contempt.”
29. Mahajan, J. in Aswini Kumar Ghose v. Arabinda Bose, AIR 1953 SC 75, observed as follows:—
“No objection could have been taken to the article had it merely preached to the Courts of law the
sermon of divine detachment. But when it proceeded to attribute improper motives to the Judges,
it not only transgressed the limits of fair and bona fide criticism but had a clear tendency to
affect the dignity and prestige of this Court..... It is obvious that if an impression is created in the
minds of the public that the Judges in the highest Court of the land act on extraneous
considerations in deciding cases, the confidence of the whole community in the
administration of justice is bound to be undermined and no greater mischief than that can possibly
be imagined..... We would like to observe that it is not the practice of this Court to issue such
rules except in very grave and serious cases and it is never over-sensitive to public criticism; but
when there is danger of grave mischief being done in the matter of administration of justice, the
animadversion cannot be ignored and viewed with placid equanimity.....”
30. There can be no quarrel with the proposition that anyone who intends to tarnish the image of
judiciary should not be allowed to go unpunished. By attacking the reputation of Judges, the ultimate
victim is the institution. The day the consumers of justice loose faith in the institution that would be the
darkest day for mankind. The importance of judiciary needs no reiteration.
31. When the background facts highlighted above are considered in the background of the principles
set out above, the inevitable conclusion is that the contemnor deserves no sympathy. In fact, the lenient
approach of the Guwahati High Court seems to have encouraged him to make statements on oath
tarnishing the image of the Judges of the highest judiciary. His apology seems to be not genuine. This is
more so because he wanted to justify the statements made in para 4.
32. Therefore, we find the contemnor guilty of contempt. He is sentenced to undergo
imprisonment for a period of two months. He shall be taken into custody and sent to Tihar Jail, New Delhi,
forthwith to serve the sentence awarded.
33. The contempt proceedings stand disposed off.
Petition disposed off.

[2008 (1) TNCJ 50 (SC)]

SUPREME COURT
BEFORE:
TARUN CHETTERJEE AND P. K. BALASUBRAMANYAN
SAROJA ...Petitioner
Versus
CHINNUSAMY (DEAD) BY L.RS AND ANOTHER ...Respondents
[Civil Appeal No. 3907 of 2007, (Arising out of SLP (C) No.18570 of 2005), decided on 24thAugust,
2007]
Civil Procedure Code, 1908—Section 11—Res judicata—Whether an ex parte decision which
has become final would operate as res judicata—Held, conditions enumerated under sub-sections
(iv), (v) and (vi) of Section 11 fulfilled, hence ex parte decision would operate as res judicata.
(Paras 9, 10 and 11)
Case law.—LW Vol. 100 (1987) 707; AIR 1987 All 100; 1996 (1) MLJ 171; AIR 1979 SC 551; JT
2005 (6) SC 333—relied on.
JUDGMENT
TARUN CHETTERJEE, J.—Leave granted.
2. This appeal by grant of special leave is preferred by the appellant against the judgment and
decree of the High Court of Judicature at Madras in Second Appeal No. 840 of 1994 whereby the High
Court had dismissed the second appeal and affirmed the judgment of the first appellate Court which in
its turn had set aside the judgment and decree of the trial Court decreeing the suit of the appellant.
3. The core question which needs to be decided in this appeal is whether the High Court was
justified in holding that the ex parte decree passed in favour of Saroja and her minor children
Suganthamani and Ramesh (Saroja being respondent No.3 in this appeal) would operate as res judicata in
the subsequently filed suit at the instance of the appellant against the respondents, and out of which the
present appeal arises.
4. Before dealing with the facts of the present case and before examining the merits of the question
raised before us, as noted hereinabove, let us first consider the general principles of res judicata which have
been incorporated in Section 11 of the Code of Civil Procedure (for short “CPC”), which reads as follows:
“11. Res judicata.—No Court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former suit between
the same parties, or between parties under whom they or any of them claim, litigating
under the same title, in a Court competent to try such subsequent suit or the suit in which
such issue has been subsequently raised, and has been heard and finally decided by
such Court.”
 We have carefully examined the provisions under Section 11 of the CPC. After a careful reading of
the provisions under Section 11 of the CPC, it is discernible that in order to constitute res judicata, the
following conditions must be satisfied:
(i) There must be two suits—one former suit and the other subsequent suit;
(ii) The Court which decided the former suit must be competent to try the subsequent suit;
(iii) The matter directly and substantially in issue must be the same either actually or
constructively in both the suits.
(iv) The matter directly and substantially in issue in the subsequent suit must have been heard and
finally decided by the Court in the former suit;
(v) The parties to the suits or the parties under whom they or any of them claim must be the same
in both the suits;
(vi) The parties in both the suits must have litigated under the same title. We shall come back to
these conditions later.
5. Let us now narrate the facts leading to the filing of this appeal. Suit No.233 of 1989 (for short the
former suit) was filed on 19th April, 1989 by Saroja, respondent No. 3 herein and her minor children
namely Suganthamani and Ramesh against her husband Kuppusamy and his tenant in the District Munsif
Court, Mettur for declaration of title and permanent injunction in respect of the property measuring 0.78.0
hectare situated in S.No. 56/5A, Marakottai Karavalli village, District Salem, in the State of Tamil Nadu
(hereinafter referred to as the ‘suit property’). The case that was made out by respondent No. 3 and her
minor children in the aforesaid suit was that the suit property having a 5 H.P. motor pump set and a tiled
house bearing D.No. 3/95 had fallen to the share of respondent No. 3 and her minor son by an oral partition
in 1985. While the former suit was pending, Kuppusamy, the defendant in that suit and husband of the
respondent No. 3 herein, sold the suit property to Saroja, the appellant herein by a registered sale deed
dated 13th June, 1990 for a consideration of Rs. 1,00,000/-. On 9th July, 1990, the Appellant filed a suit
being O.S. No. 493/1990 (for short ‘the subsequent suit’) in the District Munsif Court, Mettur for
declaration of title and permanent injunction alleging inter alia that she was the absolute owner in
possession of the suit property which was purchased by her from Kuppusamy by a registered deed of sale
dated 13th June, 1990 and that she had been in continuous possession of the suit property from the date of
her purchase and the Patta, Chitta and Adangal also stood in her name. Respondent No. 3 filed her written
statement denying the material allegations made in the plaint and alleging that the suit property had fallen
to her share along with her minor son by an oral partition which, however, was denied by the appellant. On
24th February, 1992, an ex parte decree was passed in the former suit in favour of respondent No. 3 and her
minor children. On 10th November, 1993, the subsequent suit filed by the appellant was also decreed.
An appeal preferred against this decision by respondent No. 3 was allowed by the First Appellate Court
thereby dismissing the suit of the appellant. The High Court in second appeal confirmed the judgment of
the First Appellate Court and thereby dismissed the second appeal. It is against this decision of the
High Court that this appeal on grant of special leave has been filed.
6. In the suit filed against Kuppusamy by respondent No.3 and others, no appearance was caused by
Kuppusamy, although service of notice was effected on him. When the suit filed by respondent No.3 was
pending and the suit filed by the appellant was also pending before the District Munsif, Mettur, an
application was made at the instance of respondent No. 3 to dispose of both the suits analogously which
was opposed by the appellant. The prayer for analogous hearing of the suits was rejected by the Court.
When both the suits were proceeding separately, an ex parte decree, as noted herein above, was passed
in the former suit filed against Kuppusamy on 24th February, 1992 in which the right, title and interest in
respect of the suit property was declared in favour of respondent No. 3 and her minor children. It may be
stated herein that no step was taken by the appellant to implead herself in the suit filed by respondent No. 3
and her minor children against Kuppusamy, although the appellant had purchased the suit property from
Kuppusamy. It may be further stated that no step was taken by Kuppusamy, the vendor of the appellant or
by the appellant to set aside the ex parte decree. That is to say, the ex parte decree passed in the former suit
had attained finality.
7. Keeping the aforesaid facts in our mind, let us now proceed to deal with the question of res
judicata as raised in this appeal. In our view, the ex parte decree passed in the former suit during the
pendency of the subsequent suit of the appellant operates as res judicata in the subsequent suit. It may be
reiterated that the appellant had alleged to have acquired title to the suit property by purchase from
Kuppusamy who had lost his title, even if there be any, by the ex parte decree passed in the former suit.
8. The learned counsel for the appellant argued that the ex parte decree passed in the former suit
could not operate as res judicata because in order to constitute res judicata within the meaning of Section
11 of the CPC, the conditions as noted herein earlier have to be satisfied, which on the admitted facts of
this case, were not satisfied. The learned counsel for the appellant, however, submitted that on the admitted
facts of this case as noted herein earlier, at least Conditions (iv), (v) and (vi) as quoted herein earlier
could not be said to have been satisfied. This submission of the learned counsel for the appellant was
hotly contested by the learned counsel for the respondents. He argued that all the conditions to constitute
res judicata, as quoted herein earlier, have been satisfied and, therefore, the ex parte decree passed in
the former suit would operate as res judicata in the subsequent suit filed by the appellant. Having examined
the contentions raised by the learned counsel for the parties and having considered the admitted facts of the
present case and other materials on record, we are unable to agree with the submission of the learned
counsel for the appellant. In our view, the ex parte decree passed in Suit No.233 of 1989 would operate as
res judicata in the subsequently filed suit of the appellant as all the conditions indicated herein earlier were
duly satisfied in the present case. So far as the conditions namely (i), (ii) and (iii) are concerned, no dispute
can be raised or was raised by the parties before us as the said conditions have been fully satisfied in
the facts of this case.
9. Let us, therefore, deal with Condition No. (iv) first which says, “the matter directly and
substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the
former suit”. Learned counsel for the appellant sought to argue that since the former suit was decided ex
parte, it could not be said that it was finally heard and decided by the Court and therefore, Condition
(iv) was not satisfied and the principle of res judicata could not be applied and accordingly the ex parte
decree in the former suit would not operate as res judicata in the subsequent suit. We are unable to agree
with this contention of the learned counsel for the appellant. In this case, admittedly, summons was duly
served upon Kuppusamy and inspite of such service of summons, Kuppusamy thought it fit not to
appear or to contest the suit filed against him. Once an ex parte decree is passed against Kuppusamy, in our
view, the same should be taken as a final decision after hearing. It is well settled that an ex parte decree is
binding as a decree passed after contest on the person against whom such an ex parte decree has been
passed. It is equally well settled that an ex parte decree would be so treated unless the party challenging the
ex parte decree satisfies the Court that such an ex parte decree has been obtained by fraud. Such being the
position, we are unable to hold that Condition No. (iv) was not satisfied and accordingly it cannot be held
that the principle of res judicata would not apply in the present case. In the present case, admittedly,
the appellant in her plaint had not made any case of fraud or collusion either against Kuppusamy or against
the respondents herein. It is true that when the subsequent suit was filed, the ex parte decree in the former
suit had not been passed and, admittedly it was passed during the pendency of the subsequent suit. But then
it was open to the appellant to file an amendment of the plaint in the subsequent suit by introducing a case
of fraud or collusion and by challenging the ex parte decree on the ground of fraud also although the ex
parte decree was passed during the pendency of the subsequent suit. This, however, was not done by her.
Therefore, in our view, since the appellant could not make out a case of fraud or collusion challenging the
transaction by which she had purchased the suit property from Kuppusamy in the manner indicated
above or, since, even the ex parte decree was also not challenged on the ground that Kuppusamy and
respondent No. 3 colluded amongst themselves and out of such collusion, Kuppusamy during the pendency
of the former suit sold out the suit property to the appellant, it is not open to the Court to hold that the said
ex parte decree would not operate as res judicata on the ground that the transaction between Kuppusamy
and the appellant in respect of the suit property was a fraudulent one. In this connection, reference can be
made to a decision of Madras High Court in the case of Arukkani Ammal v. Guruswamy, LW Vol.100
(1987) 707, which was also relied on by the first appellate Court. The Madras High Court in that decision
observed as follows :—
“It is also difficult to appreciate the view taken by the District Munsif that ex parte decree cannot
be considered to be ‘full decree on merits’. A decree which is passed ex parte is as good and
effective as a decree passed after contest. Before the ex parte decree is passed, the Court has to
hold that the averments in the plaint and the claim in the suit have been proved. It is, therefore,
difficult to endorse the observation made by the Principal District Munsif that such a decree
 cannot be considered to be a decree passed on merits. It is undoubtedly a decree which is passed
without contest; but it is only after the merits of the claim of the plaintiff have been proved to the
satisfaction of the trial Court, that an occasion to pass an ex parte decree can arise.”
(Emphasis supplied).
We are in full agreement with this view of the Madras High Court holding that a decree which is
passed ex parte is as good and effective as a decree passed after contest. A similar view has also been
expressed by a Division Bench of the Allahabad High Court in the case of Bramhanand Rai v. Dy. Director
of Consolidation, Ghazipur, AIR 1987 All 100. However, the learned counsel for the appellant relying on a
decision of the Madras High Court, namely, A.S.Mani (deceased) by L.Rs. Thirunavukkarasu & Ors. v.
M/s.Udipi Hari Niwas represented by Partners & Ors., 1996 (1) MLJ 171, invited us to hold that the
principle of res judicata would not apply as the former suit was decided ex parte. This decision, in our
view, is distinguishable on facts. In that decision, the observation that the ex parte decree shall not
operate as res judicata was made on the basis that the earlier petition which was filed for eviction against
the tenants was dismissed only on technical grounds, and after keeping this fact in mind only, the Madras
High Court held that the ex parte decree would not operate as res judicata inasmuch as the petition was not
heard and finally decided as contemplated in Section 11 of the CPC. Therefore, in our view, since
condition No. (iv), as noted herein before, was satisfied, we hold that the principles of res judicata
would be applicable in the present case as held by the First Appellate Court and also affirmed by the High
Court.
10. Now let us deal with Condition No. (v) which says, “the parties to the suits or the parties under
whom they or any of them claim must be the same in both the suits”. It is true that the appellant was not a
party to the suit filed by respondent No. 3 and others against Kuppusamy from whom the appellant had
purchased the property by a registered deed of sale. In the present case, the appellant was litigating on the
basis of the title acquired by her from Kuppusamy against whom the ex parte decree was passed in the
former suit. Therefore, it would not be difficult for us to hold that the appellant, who although was not a
party to the former suit, claimed through Kuppusamy in the suit subsequently filed by her. In the case of
Ishwardas v. The State of Madhya Pradesh & Ors., AIR 1979 SC 551, this Court held that in order to
sustain the plea of res judicata, it is not necessary that all the parties to the two litigations must be common.
All that is necessary is that the issue should be between the same parties or between parties under whom
they or any of them claim”. (Emphasis supplied). Therefore, Condition (v) is also satisfied.
11. Lastly, we deal with Condition No. (vi) which says, “the parties in both the suits must have
litigated under the same title”. We have to enquire whether the parties in the subsequent suit were litigating
under the same title for the purpose of determining whether the ex parte decree passed in the former suit
would operate as res judicata in the subsequent suit filed by the appellant. In our view, this condition is
also fully satisfied. In this connection, we may rely on a decision of this Court in the case of Aanaimuthu
Thevar (Dead) by Lrs. v. Alagammal & Ors., JT 2005 (6) SC 333. In that case the former suit was jointly
filed by one Muthuswami as owner and mortgagor with the mortgagee in respect of the suit property.
The subsequent suit was filed by the appellant in that appeal who had purchased the suit property from
Muthuswami. It was held by this Court that the appellant in that appeal was litigating under the same title
which Muthuswami had in the suit property. In the background of such facts, this Court held that since the
issue of title of the suit property was directly and substantially involved in the former suit, the suit filed by
the appellant in that appeal shall operate as res judicata, or at least, the suit was hit by the principle of
constructive res judicata. This being the position and in view of our discussions made hereinabove, we
hold that by virtue of the ex parte decree passed in the former suit, the subsequent suit filed by the appellant
is hit by res judicata.
12. No other point was raised by the counsel for the parties. The applicability of the doctrine of lis
pendens was also not agitated by the counsel for the appellant before the High Court. Accordingly we need
not go into the question regarding the applicability of the doctrine of lis pendens in the present case.
13. For the reasons aforesaid, we do not find any merit in this appeal. The appeal is thus dismissed.
There will be no order as to costs.
Appeal dismissed.
 [2008 (1) TNCJ 56 (SC)]
SUPREME COURT
BEFORE:
TARUN CHETTERJEE AND P. K. BALASUBRAMANYAN
HARYANA STATE INDUSTRIAL DEVELOPMENT CORPORATION …Petitioner
Versus
M/S.CORK MANUFACTURING CO. …Respondent

[Civil Appeal No. 3940 of 2007 (Arising out of SLP (C) No. 11683 of 2006), decided on 27th August, 2007]
Civil Procedure Code, 1908—Order XLI, Rule 27—Additional evidence in appellate Court
—Appellant wanted to produce legal notice sent by respondent in second appeal as evidence—
Document was within possession of appellant from very inception—Neither produced in Trial Court
nor in first Appellate Court—Second Appellate Court rejected from being it admitted—Legality of—
Held, no illegality—Appeal dismissed.
(Para 17)
Case law.—1965 (1) SCR 542; (2006) 9 SCC 772; (1980) 1 SCC 412; (2004) 10 SCC 779; AIR
1968 SC 406—relied on.
JUDGMENT
TARUN CHATTERJEE, J.—Leave granted.
2. This appeal is directed against the judgment and order dated 20th January, 2006 of the Punjab
and Haryana High Court at Chandigarh whereby the High Court affirmed the concurrent judgments of the
Courts below decreeing the suit of the plaintiff/respondent (for short ‘the respondent’) and declaring
the resumption of plot allotted to the respondent by the defendant/appellant (for short ‘the appellant’) as
illegal.
3. The appellant allotted an industrial plot bearing Plot No. 259, Udyog Vihar, Phase IV, Gurgaon
to the respondent vide its allotment letter dated 24th November, 1987. Pursuant to the allotment letter dated
aforesaid, the appellant entered into an agreement on 12th February, 1988 with the respondent Clause 8 of
which provides that the respondent shall start construction on the plot for setting up of an industry within a
period of three months and complete the construction thereof within one and a half years from the date of
issuance of the allotment letter and further, the respondent shall complete the erection and installation of
machinery and commence production within a period of two years from the date of allotment of plot failing
which the plot shall be liable to be resumed and the security amount equivalent to ten per cent of the cost of
the plot deposited by the respondent at the time of allotment shall stand forfeited. Clause 28 of the
agreement provides that in case of breach of any of the terms and conditions of the agreement including
Clause 8, the appellant reserves the right to exercise its right of resumption of the plot. The appellant, when
found that the respondent had violated Clause 8 of the agreement, issued a show cause notice to it as to why
the suit plot should not be resumed and the possession not be taken back. On 13th September, 1991,
the appellant issued a resumption order for non-compliance of Clause 8 of the agreement by the
respondent stating that the respondent had contravened the terms and conditions of the allotment
order. According to the appellant, possession of the suit plot was taken back from the respondent on 20th
September, 1991.
4. The respondent filed a Civil Suit before the Addl. Civil Judge (Senior Division), Gurgaon in 1995
more precisely on 5th October, 1995 praying for a decree of permanent injunction restraining the appellant
from interfering and/or disturbing in any manner the possession of the suit plot and further restraining the
appellant from re-allotting the plot to any other person on the basis of resumption order, if any. In the
plaint, it was alleged that it was not possible for the respondent to comply with Clause 8 of the agreement
because of high tension wires existing over the suit plot and until and unless the said high tension wires
were removed from the suit plot, the respondent was not in a position to raise construction on the same
within the time specified in Clause 8 of the agreement. For the reasons aforesaid, the appellant had no right
to disturb possession of the suit plot or initiate any proceeding against them. Inspite of several letters
written by the respondent to the appellant for removing high tension electric wires and electric pole, the
appellant did not remove the same till in the year 1995, when suit was already pending, but instead the
appellant sought to resume the suit plot for non compliance of Clause 8 of the agreement. Accordingly, a
decree for permanent injunction restraining the appellant from interfering and/or disturbing the possession
of the respondent in respect of the suit plot and other reliefs as noted herein above was prayed for.
5. After appearance in the suit, the appellant filed a written statement in which the appellant alleged
that a resumption order was passed by it on 13th September, 1991 and possession of the suit plot was
resumed on 20th September, 1991 for alleged violation of Clause 8 of the agreement. The plea of
limitation was also raised saying that since the suit plot was resumed on 13th September, 1991 by the
appellant and the suit was filed on 5th October, 1995, the suit must be held to be barred by limitation. In the
written statement, it was also alleged by the appellant that the respondent had suppressed the fact
regarding knowledge of the resumption order and also regarding taking over of the possession of the suit
plot. Accordingly, the appellant had prayed for dismissal of the suit.
6. The following issues were framed by the trial Court :
1. Whether the order dated 13.9.91, if any, is illegal, null and void and not binding upon the
plaintiff ?
2. Whether the plaintiff is in possession over the plot in question?
3. Whether the plaintiff has got no locus-standi to file the present suit?
4. Whether the suit is barred by limitation ?
5. Whether the plaintiff is estopped from filing the present suit by his own act and conduct ?
6. Whether the suit is bad for non-joinder of the necessary parties ?
7. Relief.
7. The trial Court, after the parties had adduced evidence, both oral and documentary, in support of
their respective claims, decreed the suit of the respondent inter alia on the following findings of fact :—
(I) As the high tension line and an electric pole which existed, was removed on 30th November,
1995 when the suit was already pending, the Construction in compliance with Clause 8 of
the agreement could not be raised on the suit plot.
(II) Other allottees in the same area were granted extension of time to raise construction on
identical facts and accordingly it was the duty of the appellant to extend the time for the
respondent also after removing the electric wire and pole which existed on the suit plot.
(III) Even if the appellant had resumed the suit plot on 13th September, 1991, the same was so
done without giving any opportunity of hearing to the respondent.
(IV) No show-cause notice was served by the appellant on the respondent and no procedure
was followed to resume the suit plot.
On the above findings of fact arrived at by the trial Court on appreciation of the evidence, oral and
documentary on record, the following conclusions were drawn :—
1. The order of resumption passed by the appellant dated 13th September, 1991 whereby
the suit plot was allegedly resumed, was illegal and against the principles of natural
justice and, therefore, liable to be set aside.
2. The suit was not barred by limitation as the respondent was in possession of the suit plot
and resumption order of the appellant was not served upon the respondent.
3. The respondent had by cogent evidence proved his possession over the suit plot and
accordingly the respondent was entitled to a decree of permanent injunction as prayed
for.
8. Feeling aggrieved, the appellant preferred an appeal by which the decree of the trial Court was
affirmed. The appellate Court also echoed the finding of the trial Court and held that the appellant instead
of removing the high tension wire and electric pole from the suit plot resumed the plot in question on
13th September, 1991 without affording the respondent any opportunity of being heard and, therefore,
held that the resumption order was ineffective and not binding on the respondent. The appellate Court also
held that the suit was not barred by limitation because no cogent evidence was produced by the
appellant to show that the respondent was served with the copy of the resumption order at all or that the
respondent had any prior knowledge of the resumption order.
 9. A second appeal was, thereafter, filed by the appellant before the High Court and in the second
appeal, the appellant filed an application under Order XLI, Rule 27 read with Section 151 of the CPC for
acceptance of an additional evidence which was nothing but a legal notice dated 8th October, 1991 sent by
the counsel for the respondent wherein the respondent had acknowledged the receipt of resumption order of
the appellant dated 13th September, 1991. The appeal as well as the application for acceptance of
additional evidence under Order XLI, Rule 27 of the CPC was taken up for final hearing and by the
impugned judgment, the High Court rejected the said application filed under Order XLI, Rule 27 of the
CPC and also the appeal of the appellant. Before the High Court in second appeal, the main thrust of the
argument of the learned counsel for the appellant was that the legal notice allegedly served by the
respondent on the appellant should be permitted to be produced on record as additional evidence in the
exercise of its power under Order XLI, Rule 27 of the CPC to show that the suit filed in 1995 was barred by
limitation. On the merits of the second appeal, the High Court recorded the following :—
“Nothing has been shown that the findings recorded by both the Courts below suffer from any
infirmity or are contrary to the record. No question of law, much less any substantial question
of law arises in the present appeal.”
10. Feeling aggrieved by the judgment of the High Court, the instant special leave petition has been
filed in respect of which leave has already been granted.
11. On behalf of the appellant, Mr. R. Mohan, Additional Solicitor General submitted at the first
instance that the High Court was not justified in rejecting the application for acceptance of additional
evidence filed under Order XLI, Rule 27 of the CPC. By the application under Order XLI, Rule 27 of the
CPC, a legal notice alleged to have been served by the counsel for the respondent on the appellant was in
fact sought to be admitted in evidence to prove that the respondent had clear knowledge of the
resumption order passed on 13th September, 1991 and if such fact was accepted, the suit filed in the
year 1995 was clearly barred by limitation. The High Court, however, while rejecting the application for
acceptance of additional evidence, held that the legal notice which was alleged to have been served on the
appellant was per se not admissible in evidence nor was it proved that the legal notice was issued by the
respondent. The High Court also held that even if the same was issued, such a legal notice did not advance
the case of the appellant.
12. Before we deal with the aforesaid submission of Mr.Mohan, we may remind ourselves of the
provisions of Order XLI, Rule 27 of the CPC which are as follows:
“27. Production of additional evidence in Appellate Court.—(1) The parties to an appeal shall
not be entitled to produce additional evidence, whether oral or documentary, in Appellate
Court. But if—
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which
ought to have been admitted, or
(aa) the party seeking to produce additional evidence, establishes that notwithstanding the
exercise of due diligence, such evidence was not within his knowledge or could not, after
the exercise of due diligence, be produced by him at the time when the decree appealed
against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined
to enable it to pronounce judgment, or for any other substantial cause, the Appellate
Court may allow such evidence or document to be produced, or witness to be
examined.
(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the
Court shall record the reason for its admission.”
13. We have carefully examined the provisions made under Order XLI, Rule 27 of the CPC. The
parties to an appeal shall not be entitled to produce additional evidence, oral or documentary, before the
appellate Court except on the grounds enumerated in Clauses (a), (aa) and (b) of Order XLI, Rule 27(1) of
the CPC. The Court may permit additional evidence to be produced only when it is satisfied with the three
grounds namely, (i) if the Court from whose decree the appeal is preferred has refused to admit evidence
which ought to have been admitted; (ii) a party seeking to produce additional evidence establishes that
notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not,
after the exercise of due diligence, be produced by him at the time when the decree appealed against was
passed; and (iii) when the appellate Court requires any document to be produced or any witness to be
examined to enable it to pronounce judgment; or for any other substantial cause.
14. In Municipal Corporation For Greater Bombay v. Lal Pancham of Bombay and Ors., 1965 (1)
SCR 542, this Court held that power under Order XLI, Rule 27 of the CPC could not be used for removing
a lacuna in the evidence and did not entitle the appellate Court to let in fresh evidence at the appellate stage
when even without such evidence it could pronounce judgment in the case. Following the aforesaid
decision in Municipal Corporation For Greater Bombay v. Lal Pancham of Bombay and Ors., 1965 (1)
SCR 542, this Court again in State of Gujarat and Anr. v. Mahendra Kumar Parshottambhai Desai (Dead)
by LRs., (2006) 9 SCC 772, in para 10 page 775 observed as follows:
“Though the appellate Court has the power to allow a document to be produced or a witness to be
examined under Order XLI, Rule 27, the requirement of the said Court must be limited to those
cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment.
This provision did not entitle the appellate Court to let in fresh evidence at the appellate stage
where even without such evidence it can pronounce judgment in the case. It does not entitle the
appellate Court to let in fresh evidence only for the purposes of pronouncement of judgment in a
particular way. The High Court referred to the earlier proceedings before various authorities and
came to the conclusion that though the appellants had sufficient opportunity to bring the evidence
on record, for reasons best known to it, the State did not produce the entire evidence before the
trial Court and it was only 8 years after the dismissal of the suit that the applications were filed for
adducing additional evidence in the appeal.”
(Emphasis supplied)
15. In Smt. Pramod Kumari Bhatia v. Om Prakash Bhatia and Ors., (1980) 1 SCC 412, it has been
held that the High Court was not unjustified in refusing to admit the additional evidence under Order XLI,
Rule 27 of the CPC when such additional evidence purported to defeat the claim of one of the parties and
such additional evidence was sought to be laid many years after filing of the suit. In that circumstance, this
Court has held in the aforesaid decision that the discretion used by the appellate Court in refusing to receive
additional evidence at the late stage cannot be interfered with.
16. In a recent decision of this Court in the case of Karnataka Board of Wakf v. Government of
India and Ors., (2004) 10 SCC 779, this Court has again clearly laid down the principles for acceptance or
refusal of additional evidence at the appellate stage observing that the scope of Order XLI, Rule 27 of the
CPC is very clear to the effect that the parties to an appeal shall not be entitled to produce additional
evidence, whether oral or documentary, unless they have shown that in spite of due diligence, they could
not produce such documents and that such documents are required to enable the Court to pronounce a
proper judgment.
17. Keeping the aforesaid principles in mind and applying the same on the facts and circumstances
of this case, we are unable to accept the contention of the learned Additional Solicitor General appearing
for the appellant that the legal notice dated 8th October, 1991 could not be produced in evidence before the
trial Court or before the first appellate Court due to inadvertence and lack of proper legal advice. For this
purpose, we have examined the pleadings made in the application for acceptance of additional evidence
closely and in detail. Admittedly, the legal notice issued by the counsel for the respondent to the
appellant which was sought to be admitted as additional evidence at the second appellate stage was lying
with the appellant during the pendency of the suit and also during the pendency of the first appeal. The
appellant in its written statement had categorically taken the plea of limitation which was also one of
the main issues in the suit. It is, therefore, difficult for us to conceive that the said notice issued by the
lawyer of the respondent could not either be produced before the trial Court or before the first appellate
Court due to lack of proper legal advice. It cannot also be imagined that the appellant having taken a
specific plea in the written statement regarding limitation of the suit could not produce the same due to
inadvertence. In any view of the matter, Order XLI, Rule 27 of the CPC also does not empower an
appellate Court to accept additional evidence on the ground that such evidence could not be produced
or filed either before the trial Court or before the first appellate Court due to inadvertence or lack of proper
legal advice. Mohan, learned Additional Solicitor General however sought to argue that the pleadings made
in the application for acceptance of additional evidence would come within the meaning of “substantial
cause” under Order XLI, Rule 27 (1)(b) of the CPC which would require the appellate Court to accept the
legal notice in order to pronounce its judgment. We are unable to accept this submission of Mr. Mohan. In
our view, lack of proper legal advice or inadvertence to produce the legal notice in evidence is not a ground
to hold that there was substantial cause for acceptance of the additional evidence. Mr. Mohan, learned
Additional Solicitor General further sought to argue that the importance of the legal notice was not realized
and it was due to inadvertence and lack of proper legal advice that the same could not be produced before
the Courts below. In our view, we do not think that non realization of the importance of the documents due
to inadvertence or lack of proper legal advice as noted hereinabove also would bring the case within the
expression “other substantial cause” in Order XLI, Rule 27 of the CPC. In this connection, reference can be
made to a decision of this Court in the case of Sunder Lal & Son v. Bharat Handicrafts Pvt. Ltd., AIR 1968
SC 406. In any view of the matter, we do not find that the legal notice was required by the appellate Court
to pronounce a proper judgment in the appeal. It was open for the High Court to decide the second appeal
on merits with the documents and evidence already on record. Therefore, we are in agreement with the
High Court that the additional evidence namely the legal notice issued by the counsel for the respondent to
the appellant ought not to have been admitted at the stage of the second appeal. As noted hereinabove, the
suit was filed by the respondent on 5th October, 1995. The trial Court decreed the suit about nine years
thereafter more precisely on 12th March, 2004. An appeal was carried against the aforesaid judgment of the
trial Court which was disposed of on 31st January, 2005. The appellant had failed to satisfy the High Court
as to why the legal notice which was admittedly lying with them could not be produced during all these
years, i.e. from 5th October, 1995 till 31st January, 2005. Such being the position and in view of the
discussions made herein above, we are unable to hold that the High Court was not justified in rejecting the
application for acceptance of additional evidence at the second appellate stage.
18. Let us now consider whether the three Courts below were justified in decreeing the suit of the
respondent. Before we consider the findings of the Courts below, it may be kept on record that in the
second appeal, the High Court held that no question of law much less any substantial question of law arose
in the same. On a perusal of the judgment of the High Court in the second appeal, we also do not find that
any substantial question of law, as enumerated in Section 100 of the CPC was in fact raised before the High
Court. So far as the trial Court is concerned, it came to a finding of fact that the respondent was found to
be in possession of the suit plot in spite of resumption notice having been issued by the appellant. The trial
Court also came to a finding of fact that it was due to inaction on the part of appellant to remove the
electric wires and poles from the suit plot and the explanation given by the respondent for not being able to
take any step to raise construction in compliance with Clause 8 of the agreement must be accepted and,
therefore, a decree for permanent injunction should be granted in favour of the respondent. These
findings of fact were echoed by the appellate Court as well. It is well settled that in a second appeal, High
Court is not permitted to set aside the findings of fact arrived at by the two Courts below until and unless it
is shown that such findings of fact are either perverse or arbitrary in nature. Mr. Mohan learned Additional
Solicitor General, however, could not satisfy us that the findings of the Courts below which were also
accepted by the High Court in the second appeal were either perverse or arbitrary. Accepting this position,
the High Court in second appeal found that the appellant had failed to satisfy it that the findings recorded
by the Courts below suffered from any infirmity or that they were contrary to the record. The High Court
also concluded that there was no question of law much less any substantial question of law which arose in
the second appeal. Before we part with this judgment, we keep on record that Mr. Mohan appearing for the
appellant substantially argued before us on the issue that the High Court was not justified in rejecting the
application for acceptance of additional evidence. We have already discussed this aspect of the matter
herein before and after such discussion, we have already held that there was no infirmity in that part of the
judgment by which the High Court had rejected the application for acceptance of additional evidence.
19. For the reasons aforesaid, we do not find any ground for which interference with the
judgment of the Courts below can be called for. Accordingly, the appeal requires to be dismissed
and is dismissed as such. There will be no order as to costs.
Appeal dismissed.

[2008 (1) TNCJ 63 (SC)]

SUPREME COURT
BEFORE:
 G. P. MATHUR AND P. K. BALASUBRAMANYAN
RAJKUMAR AND OTHERS …Petitioners
Versus
HARYANA STATE AND OTHERS …Respondents
[Civil Appeal Nos. 3262-3270 of 2002 with C.A. No. 3271/2002, C.A. No. 3279/2002, C.A. Nos. 3272-
3278/2002, C.A. No. 1512/2004, C.A. No. 1513/2004, C.A. No. 5527/2005, C.A. No. 5833/2005, C.A. No.
3923/2007 [SLP (C) No. 8161/2007], C.A. No. 3924/2007 [SLP (C) No. 9355/2007], C.A. No. 3929/2007
[SLP (C) No. 9283/2007], C.A. No. 3925/2007 [SLP (C) No. 9362/2007], C.A. No. 3926/2007 [SLP (C)
No. 9364/2007], C.A. No. 3927/2007 [SLP (C) No. 9281/2007] and C.A. No. 3928/2007 [SLP (C) No.
9357/2007], decided on 27th August, 2007]
Land Acquisition Act, 1894—Sections 9, 11, 18, 21 and 25— Compensation—
Determination of—Land acquired for public purpose—Compensation determined—Enhanced by
Reference Court—Affirmed by first and second appellate Courts—Legality of—Held, whether land
situate within municipal limits or not, potentialities of land, its location, availability of amenities
were considered by Awarding Officer, Single Judge and Division Bench—Sale instances also relied
on—Hence no case for interference made out—Appeal dismissed.
(Paras 6, 7 and 9)
Case law.—AIR 1997 SC 2704; AIR 1976 SC 2219—relied on.
JUDGMENT
P.K. BALASUBRAMANYAN, J.—Leave granted in Petitions for Special Leave to Appeal. Delay
condoned in filing application for Substitution in Civil Appeal arising out of Petition for Special Leave to
Appeal (Civil) No. 9355 of 2007 and application for substitution is allowed. Heard learned counsel on all
sides.
2. A notification under Section 4 of the Land Acquisition Act was issued on 19.5.1992 notifying the
proposal for acquisition of an extent of 504.27 acres of land in the revenue estates of Hisar, Satrod Khurd
and Satrod Khas in District Hisar. The public purpose put forward was the development and utilization of
land as residential in Sectors 9 and 11 by the Haryana Urban Development Authority. On 18.5.1993, a
declaration under Section 6 of the Land Acquisition Act was made. The area in respect of which the
declaration was made was of 478.44 acres.
3. The Land Acquisition Collector passed an award on 17.5.1995 adjudging the
compensation payable to the land owners at Rs. 3 lakhs per acre. On a claim for enhancement by various
claimants, the Reference Court enhanced the compensation to Rs. 235/- per square yard for the lands in
the revenue estate of Hisar and to Rs.135/- per square yard in the revenue estates of Satrod Khurd and
Satrod Khas. The Reference Court found that the lands were agricultural lands and were being used for
agricultural purposes. But still it found that the acquired lands were within the municipal limits of the town
and it took note of the potentialities of the lands with reference to its location, its lie, and the potentialities
in view of the availability of civic amenities. In other words, all the relevant aspects were taken into
consideration by the Reference Court while fixing the land value at Rs. 235/- per square yard for the lands
in the revenue estate of Hisar and at Rs. 135/- per square yard for the lands in the revenue estates of Satrod
Khurd and Satrod Khas.
4. The State as well as the claimants appealed against this award. According to the State, the
lands being agricultural lands, the enhancement awarded was exorbitant and the rate per square yard
accepted was too high. No case for such enhancement had been made out by the claimants. According to
the claimants, the land value should have been awarded at a higher rate and even going by the valuation
adopted by the Reference Court something more than Rs. 235/- per square yard should have been awarded.
As far as the lands situate in Satrod Khurd and Satrod Khas were concerned, it was contended that there
was no justification in not adopting the same rate as land value for them as for the lands in estate Hisar and
the fixing of the compensation at Rs.135/- per square yard for those lands was unjustified. The learned
single Judge of the High Court dismissed the appeals by the State. He also found in the appeals by the
claimants in respect of lands in estate Hisar, that the land value of Rs. 235/- per square yard for the lands
comprised therein was correct and called for no interference. But, the learned Judge found that though
there was distinction between the lands in estate in Hisar and those in estates Satrod Khurd and Satrod
Khas, the disparity in the value awarded was not justified and that it would be appropriate to enhance the
compensation for the lands in Satrod Khurd and Satrod Khas to Rs. 175/- per square yard. Thus, the claim
for enhancement in respect of those lands was partly accepted. Feeling dissatisfied, the claimants went up
in further appeal. It was argued before the Division Bench that even on his own reasoning, the learned
single Judge ought to have awarded a higher compensation for the lands in estate Hisar. As regards the
lands in Satrod Khurd and Satrod Khas, it was contended that the compensation should have been awarded
at a rate equal to the rate adopted for the lands in estate Hisar. The Division Bench found that the learned
single Judge was fully justified in awarding land value for the lands in Hisar at Rs. 235/- per square yard
and in awarding land value of Rs. 175/- per square yard for the lands in Satrod Khurd and Satrod Khas.
The Court particularly found that even though the lands acquired in Satrod Khurd and Satrod Khas were
within the municipality, they were agricultural lands being used for agricultural purposes and they were
away from the town whereas the lands in estate Hisar were abutting the town and they had better amenities.
It was noticed by the Division Bench that the lands in Satrod Khurd and Satrod Khas were on the outer
periphery on the far eastern side of the township. It was found that it was not developed land. The
Division Bench, therefore, found that the compensation awarded for the lands in Hisar, Satrod Khurd and
Satrod Khas by the learned single Judge were just and fair and called for no interference. It is feeling
aggrieved by the compensation thus awarded that the claimants have come up with these appeals.
5. As regards the lands in estate Hisar, it is clear that the Awarding Officer has considered the
potentiality of the land and all other relevant aspects in fixing the compensation. On the evidence, it could
be said that he was more than fair to the claimants. The learned single Judge, on a re-appreciation of the
circumstances, came to the conclusion that the value awarded was justified on the facts and in the
circumstances of the case. The Division Bench again, after a careful consideration of the relevant aspects,
came to the conclusion that the land value awarded was fair and there was no scope for further
enhancement.
6. Normally, this Court interferes with the award made under the Act by the High Court only if any
error in principle is involved in the adjudging of the compensation. After all, every award involves some
guess work. It is true that the lands in Hisar are situate within the municipal limits. This aspect has been
taken note of by the Awarding Officer, by the learned single Judge and by the Division Bench. The
potentialities of the lands, its location, the amenities available have all been taken note of again by the
Awarding Officer, by the learned single Judge and by the Division Bench. The method adopted for
adjudging the compensation cannot also be said to be incorrect or unreasonable. The most acceptable rate
has been taken and a suitable reduction has been made and it cannot certainly be said that anything
arbitrary has been done either by the learned single Judge or by the Division Bench. There is no
material on the basis of which further enhancement could be granted. It is seen from the award that all the
relevant aspects had been noticed by the Awarding Officer when he fixed the compensation. It is seen that
all the relevant sale instances relied on and detailed in paragraph 39 of the award were all instances of sale
of small extents and therefore could not form the basis of adjudging the compensation when the acquisition
of a larger extent is involved. May be the lands are held in severalty by several owners. Even then suitable
adjustments had to be made while determining the land value. Lands in the periphery of a municipal town
have been acquired and while adjudging the compensation, the necessary adjustments will have to be made
for determining the compensation payable while taking note of such sale instances. On going through the
award, it is difficult, if not impossible, to say that anything relevant has been omitted by the Reference
Court.
7. What is relied upon is that Reference Court made a statement that it was making a conservative
estimate. On the materials, it is seen that the use of that expression has not resulted in any under-
assessment of either the potentialities of the lands or the compensation payable. The argument that
the residential potential should be taken note of does not carry the appellants far, since that aspect has also
been taken note of while adjudging the compensation at Rs. 235/- per square yard. On the whole, it cannot
be said that the compensation adjudged is unjust. It has to be held that there is no material on the basis of
which the same could be enhanced by us in this third appeal. There may be some justification in the
argument on behalf of the State that the award was a generous one, but then, the State is bound by the
award in the light of Section 25 of the Act. Suffice it to say that, we are not satisfied that any enhancement
of land value for the lands in estate Hisar is justified.
8. Coming to the lands in Satrod Khurd and Satrod Khas, it is seen that they are agricultural lands
being used for agricultural purposes on the relevant date. They were in the outer periphery of the municipal
town, away from the centre. They did not enjoy the same potential as the lands in estate Hisar. It was in that
context that the Awarding Officer awarded compensation at the rate of Rs. 135/- per square yard. But on
appeal, the learned single judge felt that though there was disparity in the nature of the lands and the
potential, the disparity in the award of compensation was a bit too much and that an enhancement in value
for the lands in Satrod Khurd and Satrod Khas was justified. The learned single Judge enhanced the
compensation to Rs. 175/- per square yard. The Division Bench also found that there was no scope
for any further enhancement.
9. It is contended before us that the lands lay in a block and there was no reason for not awarding
compensation at an equal rate for the lands in Satrod Khurd and Satrod Khas. But as noticed by the
Awarding Officer, Reference Court and the High Court, the nature of the land, its present state, its present
location, its comparative advantages and disadvantages, all justify the difference in the rate of
compensation awarded. In any event, it cannot be said that there is any irrationality in the position adopted
by the Reference Court and by the learned single Judge and by the Division Bench while determining the
compensation payable for the lands in Satrod Khurd and Satrod Khas. All the relevant aspects have been
taken into consideration and we do not find any error in principle committed by the High Court justifying
our interference in appeal. An argument was raised that the prices of lands fetched in auction had been
ignored on the basis that prices fetched in auction sales cannot form the basis. It was submitted that there
was no general rule that such prices cannot be adopted. On considering the relevant facts disclosed, it
cannot be said that the High Court has committed any error in discarding those auction sales while
determining the compensation payable. The element of competition in auction sales makes them not
safeguides. Similarly, the argument that when a compact piece of land is acquired there cannot be adoption
of separate rates cannot be accepted in the light of the decision of this Court in Union of India & others v.
Mangatu Ram, etc., AIR 1997 S.C. 2704. That case related to acquisition of lands in the vicinity of the
present properties. The ratio of that decision also supports the distinction made by the Awarding Officer
and the High Court in the matter of fixing the land value for the lands in Satrod Khurd and Satrod Khas.
10. On the whole, it cannot be said that there is any error in principle committed by the High Court
justifying our interference. Tested in the light of the approach commended in Thakur Kanta Prasad Singh
(dead) by L.Rs. v. State of Bihar, AIR 1976 S.C. 2219, we are not satisfied that sufficient grounds are made
out for interference. Thus, we decline to interfere with the decision of the Division Bench of the High
Court. We confirm the decisions of the High Court and dismiss these appeals. We direct the parties to
suffer their respective costs.
Appeals dismissed.

[2008 (1) TNCJ 67 (SC)]

SUPREME COURT
BEFORE:
ARIJIT PASAYAT AND D. K. JAIN, JJ.
RAMDAS SHIVRAM SATTUR …Petitioner
Versus
RAMESHCHANDRA POPATLAL SHAH AND OTHERS …Respondents
[Civil Appeal No. 3807of 2007 (Arising out of SLP (C) No. 10085 of 2006), decided on 20 August, 2007]
th

Civil Procedure Code, 1908—Order XXII, Rule 9 (2)—Abatement of suit—Setting aside of—
Respondent No. 3 died during pendency of appeal—Suit dismissed as abated—Restoration
application also dismissed—Legality of—Held, appellant and other legal representatives of
respondent already on record and appeal not to abate so far as respondent No. 3 is concerned—
Hence High Court erred in refusing application for restoration.
(Paras 12 and 13)
Case law.—1997 (5) SCC 192; 2003 (10) SCC 691—relied on.
JUDGMENT
DR. ARIJIT PASAYAT, J.—Leave granted.
 2. Challenge in this appeal is to the order passed by a learned Single Judge of the Bombay High
Court in the Second Appeal filed by the appellant; the defendant No.3 in Special Civil Suit No. 42 of 1981;
before the High Court under Section 100 of the Code of Civil Procedure, 1908 (in short ‘CPC’). During
pendecny of the appeal, an application was filed in terms of Order XLI, Rule 19 of the CPC for setting
aside the order dated 20.3.1987 passed by the learned Additional Registrar whereby he dismissed the
second appeal against respondent Nos.3 and 6 for non-prosecution. The prayer was also made to show the
names of the applicant, i.e. present appellant and respondent Nos.5 to 7 in the second appeal as legal
representatives of the deceased-respondent No.3. By the impugned order the High Court while accepting
the prayer vis-a-vis respondent No.6 dismissed the same so far as respondent No.3 is concerned.
3. A brief reference to the factual aspects would be necessary:
The suit plot was owned by one Shivram, i.e. the father of the appellant and respondent No.3. Name
of respondent No.3 Tarabai was shown as nominee in the Cooperative Housing Society’s record. After the
death of Shivram the suit plot was transferred in the name of Tarabai. She purportedly entered into an
agreement to sale with original plaintiffs 1 and 2, i.e. the present respondents 1 and 2. As Tarabai did not
execute the sale deed in pursuance of the said sale agreement, the plaintiffs filed the suit against Tarabai
and her three sons and one daughter, i.e. original defendants 3 to 6. The Cooperative Society was also
impleaded as defendant No.2. Tarabai filed written statement and denied claim of the plaintiffs. Defendant
No.3, i.e. appellant denied the suit claim and contended that Tarabai was, as stated in the written
statement, only a nominee and no exclusive ownership right was vested in her. The trial Court came to the
conclusion that Tarabai had executed the agreement of sale and she committed breach in collusion with the
other defendants. Therefore, the defendants 1 and 3 were directed to execute the sale deed in favour of the
plaintiff.
Being aggrieved by the said order, Tarabai as well as the present appellant and the Co-
operative Society filed Civil Appeal No.772 of 1984. However, the appeal was dismissed and trial
Court’s decree was confirmed. Being aggrieved, the appellant filed the Second Appeal against the original
plaintiffs, Cooperative Society and the respondents 3 to 7, i.e. defendants 1 to 4, 5 and 6. The said appeal
was admitted by the High Court on 20.6.1986 and stay on the lower Courts decree was granted.
4. It appears from the record that respondents 1, 2 and 4 were served personally while respondent
No.3 was served by affixing the notice with bailiff remarks gone on duty. Notice to the respondent No.6
was also returned unserved with remarks incomplete address. The High Court noticed that in terms of
the provisions of Rule 6(i) of Chapter VII of Bombay High Court Appeal Rules, 1960, the appellant was
required to give postal stamps within the stipulated period. That was not done. The Additional
Registrar dismissed the appeal in respect of Tarabai (respondent No.3 in the Second Appeal) and
respondent No.6 for want of prosecution by order dated 20.3.1987. It also appears that the appeal was
dismissed for non-removal of objections. An application for restoration was filed and the appeal was
restored on 6.4.1999 by setting aside the order dated 10.11.1997. At that time the appellant made a
statement that Second Appeal has abated against respondents 5 and 7 and he was pressing civil application
for restoration only against respondent Nos.1 and 2. It was accordingly restored.
5. Subsequently, it appears that the advocate who was earlier appearing left the practice. When
another advocate appeared, she found that record was not traceable and ultimately an application was filed
before the High Court in respect of respondents 3 and 6 and restoration was prayed for in respect of the said
respondents.
6. The prayer for restoration was resisted by the present respondents 1 and 2. The High Court found
that the application was to be allowed in respect of respondent No.6 but no case was made for restoration in
respect of respondent No.3. Accordingly the application was partly allowed.
7. In support of the appeal, learned counsel for the respondent submitted that the High Court’s
approach is clearly erroneous. The position was the same for both respondents 3 and 6. It was pointed out
that mistake committed by the previous advocate was noticed in respect of respondents 5 and 7. It was
noted that there was no dispute that respondent Nos.5, 6 and 7 along with present appellant are the only
legal heirs of respondent No.3 who passed away during the pendency of the appeal, therefore, dismissal
order in respect of respondents 5 and 7 was set aside subject to payment of cost of Rs.5,000/-.
 8. Learned counsel for the respondent Nos.1 and 2 submitted that there has been long delay so far as
the case relating to respondent No.3 is concerned. The position is different for respondent No.3 and
respondent No.6. Merely because in respect of respondent No.6 the application has been allowed that
cannot be a ground for restoration of the appeal so far as respondent No.3 is concerned.
9. Since respondent No.3 has died, question of her being brought on record does not arise. As was
noted by the High Court in its order dated 23rd March, 2004, in civil application 1361/2002, the appellant
and respondents 5, 6 and 7 are the only legal heirs of respondent No.3. The order dated 23rd March, 2004,
has become final, and respondents 5 and 7 are already on record. By the impugned order also the High
Court has directed restoration of the appeal so far as respondent No. 6 is concerned.
10. The approach to be adopted when dealing with a situation relating to abatement has been dealt
with by this Court in several cases.
11. In Ram Sakal Singh v. Mosamat Monako Devi (Dead) and Ors., 1997 (5) SCC 192. It was
observed as follows:
“13. Shri Ranjit Kumar, obviously due to mistaken perception of the procedural part, has,
instead of seeking transposition of the legal representatives to represent the estate of
the deceased Respondents 8 to 15, sought deletion of the names of the deceased.
Without there being already on record some persons eligible and entitled in law to
represent the estate of the deceased, the deceased defendants/respondents were
deleted. The consequence of deletion is that the decree of the Courts below as against the
deceased becomes final. If the decree is inseparable and the rights of the parties are
indivisible between the contesting parties and the deceased, the consequence would be
that the suit/appeal stands abated as a whole. But if one of the respondent/respondents or
defendant/defendants is already on record, what needs to be done is an intimation to the
Court by filing a formal application or memo to transpose the existing
defendant/defendants or respondent/respondents as legal representatives of the
deceased defendant/defendants or respondent/respondents. In view of the mistake
committed by the counsel, the Court has to consider the effect thereof. On the facts, we
think that cause of justice would get advanced if the misconception as to the procedure on
the part of the counsel is condoned and if Respondents 8 and 15 instead of being deleted
Respondents 9 and 10 are substituted and transposed as the legal representative of the
deceased Respondent 8 and Respondent 16 is transposed as legal representative of
respondent 15.”
12. In Mithailal Dalsangar Singh ands Ors. v. Annabi Devram Kini and Ors., 2003 (10) SCC 691,
inter alia, it was observed as follows:
“8. Inasmuch as the abatement results in denial of hearing on the merits of the case, the
provision of abatement has to be construed strictly. On the other hand, the prayer for
setting aside an abatement and the dismissal consequent upon an abatement, have to
be considered liberally. A simple prayer for bringing the legal representatives on record
without specifically praying for setting aside of an abatement may in substance be
construed as a prayer for setting aside the abatement. So also a prayer for setting aside
abatement as regards one of the plaintiffs can be construed as a prayer for setting
aside the abatement of the suit in its entirety. Abatement of suit for failure to
move an application for bringing the legal representatives on record within the prescribed
period of limitation is automatic and a specific order dismissing the suit as abated is
not called for. Once the suit has abated as a matter of law, though there may not have
been passed on record a specific order dismissing the suit as abated, yet the legal
representatives proposing to be brought on record or any other applicant proposing
to bring the legal representatives of the deceased party on record would seek the setting
aside of an abatement. A prayer for bringing the legal representatives on record, if
allowed, would have the effect of setting aside the abatement as the relief of setting aside
abatement though not asked for in so many words is in effect being actually asked for and
is necessarily implied. Too technical or pedantic an approach in such cases is not called
for.
 9. The Courts have to adopt a justice-oriented approach dictated by the uppermost
consideration that ordinarily a litigant ought not to be denied an opportunity of having a
lis determined on merits unless he has, by gross negligence, deliberate inaction or
something akin to misconduct, disentitled himself from seeking the indulgence of the
Court. The opinion of the trial Judge allowing a prayer for setting aside abatement and
his finding on the question of availability of sufficient cause within the meaning of
sub-rule (2) of Rule 9 of Order XXII and of Section 5 of the Limitation Act, 1963
deserves to be given weight, and once arrived at would not normally be interfered with by
superior jurisdiction.
10. In the present case, the learned trial Judge found sufficient cause for condonation of delay
in moving the application and such finding having been reasonably arrived at and
based on the material available, was not open for interference by the Division
Bench. In fact, the Division Bench has not even reversed that finding; rather the
Division Bench has proceeded on the reasoning that the suit filed by three plaintiffs
having abated in its entirety by reason of the death of one of the plaintiffs, and then
the fact that no prayer was made by the two surviving plaintiffs as also by the legal
representatives of the deceased plaintiff for setting aside of the abatement in its
entirety, the suit could not have been revived. In our opinion, such an approach adopted
by the Division Bench verges on too fine a technicality and results in injustice being
done. There was no order in writing passed by the Court dismissing the entire suit as
having abated. The suit has been treated by the Division Bench to have abated in its
entirety by operation of law. For a period of ninety days from the date of death of any
party the suit remains in a state of suspended animation. And then it abates. The converse
would also logically follow. Once the prayer made by the legal representatives of the
deceased plaintiff for setting aside the abatement as regards the deceased plaintiff was
allowed, and the legal representatives of the deceased plaintiff came on record, the
constitution of the suit was rendered good; it revived and the abatement of the suit would
be deemed to have been set aside in its entirety even though there was no specific prayer
made and no specific order of the Court passed in that behalf.”
13. In view of the factual position noticed above, High Court was not justified in refusing
application for restoration so far as respondent No.3 is concerned. But she is dead and her legal
representatives are already on record, i.e. appellant and respondents 5, 6 and 7. The appeal shall not abate
so far as respondent No. 3 is concerned.
14. The appeal is allowed without any order as to costs.
Appeal allowed.

[2008 (1) TNCJ 72 (SC)]

SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND D. K. JAIN, JJ
M/S R. N. JADI & BROTHERS AND OTHERS …Petitioners
Versus
SUBHASHCHANDRA …Respondent
[Civil Appeal No. 2925 of 2007 (Arising out of SLP (C) No. 14606 of 2006), decided on 10 July, 2007]
th

Civil Procedure Code, 1908—Order VIII, Rule 1—Written statement—Filing of,

beyond period of 90 days—Scope of—Defendant filed W.S. two days beyond 90 days—Trial Court
accepted it—High Court, however, set aside order on ground that provisions of Order VIII, Rule 1
are mandatory and trial Court could not have accepted it beyond 90 days—Legality of—Held, object
is to suppress delaying tactics and not to harm any party—Trial Court granted time beyond 90 days
and within extended period W.S. filed—Hence order of High Court set aside.
(Paras 17, 18 and 19)
 Case law:—2005 (4) SCC 480; 2005 (6) SCC 705—relied on; 1975 (1) SCC 774; 1966 (1) All ER
524; AIR 1998 SC 1827; JT 2002 (9) SC 175; JT 2005 (6) SC 486; AIR 1965 SC 895; AIR 1955 SC 425;
1987 (4) SCC 398; 1996 (2) SCC 459; 2004 (4) SCC 342; 2006 (1) SCC 46.—referred.
JUDGMENT
DR. ARIJIT PASAYAT, J.—Leave granted.
2. The controversy lies within a very narrow compass. The appellants-defendants were issued
summons by the trial Court. They did not file the written statement within 90 days from the date of
service of summons and there was a delay of two days. The trial Court accepted the written statement
which was filed beyond 90 days despite the objection raised by the plaintiff-respondent. The order of the
trial Court was challenged before the Karnataka High Court in a writ petition under Article 227 of the
Constitution of India, 1950 (in short the ‘Constitution’) on the ground that the provision of Order VIII, Rule
1 of the Code of Civil Procedure, 1908 (in short the ‘CPC’) was mandatory and the trial Judge could not
have accepted the written statement filed beyond 90 days from the date of service. The writ petition was
allowed by order dated 30.8.2004. A writ appeal was filed which was held to be not maintainable.
3. A review petition was filed taking the stand that in view of a decision of this Court in Kailash v.
Nanhku and Ors., 2005 (4) SCC 480 where it was held that the provisions of Order VIII, Rule 1, CPC are
directory, the reasons justifying the delayed presentation of the written statement could be satisfactorily
explained. The High Court dismissed the review petition on the ground that a case for review was not
made out. All the three orders are under challenge in this appeal.
4. Learned counsel for the appellants submitted that the decision taken by the High Court is not
sustainable in view of law declared by this Court.
5. Learned counsel for the respondent on the other hand supported the orders of the High Court.

6. The CPC enacted in 1908 consolidated and amended the laws relating to the procedure of the
Courts of Civil Judicature. It has undergone several amendments by several Acts of Central and State
Legislatures. Under Section 122, CPC the High Courts have power to amend by rules, the procedure laid
down in the Orders. In exercise of these powers various amendments have been made in the Orders by
various High Courts. Amendments have also been made keeping in view recommendations of Law
Commission. Anxiety of Parliament as evident from the amendments is to secure an early and expeditious
disposal of civil suits and proceedings without sacrificing the fairness of trial and the principles of natural
justice in-built in any sustainable procedure. The Statement of Objects and Reasons for enacting
Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976) (in short ‘1976 Amendment Act’)
highlights following basic considerations in enacting the amendments:—
“(i) with the accepted principles of natural justice that a litigant should get a fair trial in
accordance;
(ii) that every effort should be made to expedite the disposal of civil suits and proceedings, so that
justice may not be delayed;
(iii) that the procedure should not be complicated and should, to the utmost extent possible, ensure
fair deal to the poorer sections of the community who do not have the means to engage a
pleader to defend their cases.”
7. By the 1999 Amendment Act the text of Order VIII, Rule 1 was sought to be substituted in a
manner that the power of Court to extend the time for filing the written statement was so circumscribed as
would not permit the time being extended beyond 30 days from the date of service of summons on the
defendant. Due to resistance from the members of the Bar against enforcing such and similar other
provisions sought to be introduced by way of amendment, the Amendment Act could not be
promptly notified for enforcement. The text of the provision in the present form has been
introduced by the Amendment Act with effect from 1.7.2002. The purpose of such like amendments is
stated in the Statement of Objects and Reasons as “to reduce delay in the disposal of civil cases”.
The text of Order VIII, Rule 1, as it stands now, reads as under:—
“1. Written statement.—The defendant shall, within thirty days from the date of service of
summons on him, present a written statement of his defence:
 Provided that where the defendant fails to file the written statement within the said
period of thirty days, he shall be allowed to file the same on such other day, as may be
specified by the Court, for reasons to be recorded in writing, but which shall not be later
than ninety days from the date of service of summons.”
8. Order VIII, Rule 1 after the amendment casts an obligation on the defendant to file the written
statement within 30 days from the date of service of summons on him and within the extended time falling
within 90 days. The provision does not deal with the power of the Court and also does not specifically take
away the power of the Court to take the written statement on record though filed beyond the time as
provided for. Further, the nature of the provision contained in Order VIII, Rule 1 is procedural. It is not a
part of the substantive law. Substituted Order VIII, Rule 1 intends to curb the mischief of unscrupulous
defendants adopting dilatory tactics, delaying the disposal of cases causing inconvenience to the plaintiffs
and petitioners approaching the Court for quick relief and also to the serious inconvenience of the Court
faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the
same. While justice delayed may amount to justice denied, justice hurried may in some cases amount to
justice buried.
9. All the rules of procedure are the handmaid of justice. The language employed by the draftsman
of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is
to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the
opportunity of participating in the process of justice dispensation. Unless compelled by express and
specific language of the Statute, the provisions of the CPC or any other procedural enactment ought not to
be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends
of justice.
10. The mortality of justice at the hands of law troubles a Judge’s conscience and points an
angry interrogation at the law reformer.
11. The processual law so dominates in certain systems as to overpower substantive rights and
substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal
justice compels consideration of vesting a residuary power in judges to act ex debito justiciae where the
tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence-processual, as
much as substantive. [See Sushil Kumar Sen v. State of Bihar, 1975 (1) SCC 774.]
12. No person has a vested right in any course of procedure. He has only the right of prosecution or
defence in the manner for the time being by or for the Court in which the case is pending, and if, by an Act
of Parliament the mode of procedure is altered, he has no other right than to proceed according to the
altered mode. [See Blyth v. Blyth, 1966 (1) All E.R. 524 (HL).] A procedural law should not ordinarily be
construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any
interpretation which eludes or frustrates the recipient of justice is not to be followed. [See Shreenath
and Anr. v. Rajesh and Ors. AIR 1998 SC 1827].
13. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice.
Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the
administration of justice.
14. It is also to be noted that though the power of the Court under the proviso appended to Rule 1 of
Order VIII is circumscribed by the words - “shall not be later than ninety days” but the consequences
flowing from non-extension of time are not specifically provided though they may be read by necessary
implication. Merely, because a provision of law is couched in a negative language implying
mandatory character, the same is not without exceptions. The Courts, when called upon to interpret the
nature of the provision, may, keeping in view the entire context in which the provision came to be enacted,
hold the same to be directory though worded in the negative form.
15. Challenge to the Constitutional validity of the Amendment Act and 1999 Amendment Act was
rejected by this Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India, JT 2002 (9) SC
175. However to work out modalities in respect of certain provisions a Committee was constituted. After
receipt of Committee’s report the matter was considered by a three-Judge Bench in Salem Advocate Bar
Association, Tamil Nadu v. Union of India, JT 2005 (6) SC 486. As regards Order VIII, Rule 1
Committee’s report is as follows:
 “The question is whether the Court has any power or jurisdiction to extend the period beyond 90
days. The maximum period of 90 days to file written statement has been provided but the
consequences on failure to file written statement within the said period have not been
provided for in Order VIII, Rule 1. The point for consideration is whether the provision providing
for maximum period of ninety days is mandatory and, therefore, the Court is altogether
powerless to extend the time even in an exceptionally hard case.
It has been common practice for the parties to take long adjournments for filing written
statements. The Legislature with a view to curb this practice and to avoid unnecessary delay and
adjournments, has provided for the maximum period within which the written statement is
required to be filed. The mandatory or directory nature of Order VIII, Rule 1 shall have to be
determined by having regard to the object sought to be achieved by the amendment. It is, thus,
necessary to find out the intention of the Legislature. The consequences which may follow and
whether the same were intended by the Legislature have also to be kept in view.”
In Raza Buland Sugar Co. Ltd., Rampur v. The Municipal Board, Rampur, AIR 1965 SC 895, a
Constitution Bench of this Court held that the question whether a particular provision is mandatory or
directory cannot be resolved by laying down any general rule and it would depend upon the facts of each
case and for that purpose the object of the statute in making out the provision is the determining factor.
The purpose for which the provision has been made and its nature, the intention of the Legislature in
making the provision, the serious general inconvenience or injustice to persons resulting from whether the
provision is read one way or the other, the relation of the particular provision to other provisions dealing
with the same subject and other considerations which may arise on the facts of a particular case including
the language of the provision, have all to be taken into account in arriving at the conclusion whether a
particular provision is mandatory or directory.
In Sangram Singh v. Election Tribunal Kotah & Anr., AIR 1955 SC 425, considering the provisions
of the Code dealing with the trial of the suits, it was opined that:
“Now a Code of procedure must be regarded as such. It is procedure, something designed to
facilitate justice and further its ends: not a Penal enactment for punishment and penalties; not a
thing designed to trip people up. Too technical construction of sections that leaves no room for
reasonable elasticity of interpretation should, therefore, be guarded against (provided always that
justice is done to both sides) lest the very means designed for the furtherance of justice be used to
frustrate it. Next, there must be ever present to the mind the fact that our laws of procedure are
grounded on a principle of natural justice which requires that men should not be condemned
unheard, that decisions should not be reached behind their backs, that proceedings that affect their
lives and property should not continue in their absence and that they should not be precluded from
participating in them. Of course, there must be exceptions and where they are clearly defined they
must be given effect to. But taken by and large, and subject to that proviso, our laws of
procedure should be construed, wherever that is reasonably possible, in the light of that principle.”
16. The position was examined in details in Kailash’s case (supra) and Rani Kusum (Smt.) v.
Kanchan Devi (Smt.) and Others, 2005(6) SCC 705.
17. In the facts and circumstances of the case, the maxim of equity, namely, actus curiae neminem
gravabit an act of Court shall prejudice no man, shall be applicable. This maxim is founded upon justice
and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex
non cogit ad impossibilia the law does not compel a man to do what he cannot possibly perform. The
law itself and its administration is understood to disclaim as it does in its general aphorisms, all intention of
compelling impossibilities, and the administration of law must adopt that general exception in the
consideration of particular cases. The applicability of the aforesaid maxims has been approved by this
Court in Raj Kumar Dey v. Tarapada Dey, 1987 (4) SCC 398, Gursharan Singh v. New Delhi Municipal
Committee, 1996 (2) SCC 459, Mohammad Gazi v. State of M.P. and others, 2000(4) SCC 342 and Shaikh
Salim Haji Abdul Khayumsab v. Kumar and Ors., 2006 (1) SCC 46.
18. The matter can be looked at from another angle. Undisputedly, the trial Court had granted time
upto 8.6.2004 which undisputedly fell beyond 90 days. There is no dispute that the written statement was
filed on 8.6.2004.
 19. In view of what has been stated above, we set aside the impugned orders of the High Court. The
written statement already filed shall be duly taken note of by the trial Court. The appeal is allowed but
without any order as to costs.
Appeal allowed.

[2008 (1) TNCJ 77 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE :
K. CHANDRU, J.
Review Application (MD) No. 8 of 2007
THE STATE OF TAMIL NADU AND OTHERS …Petitioners
Versus
TMT. K. SAROJA ….Respondent
Review Application (MD) Nos. 20, 21 to 32 of 2007
THE SECRETARY TO THE GOVERNMENT, BACKWARD CLASSES
AND MOST BACKWARD CLASSES AND MINORITIES WELFARE
DEPARTMENT, SECRETARIAT, CHENNAI AND OTHERS ...Petitioners
Versus
S. DHARMAR AND OTHERS ….Respondents
Cont.P. (MD) No. 237 of 2005
K. SAROJA ...Petitioner
Versus
MR. A. NAGARAJAN, I.A.S., SECRETARY TO GOVERNMENT
OF TAMIL NADU, DEPARTMENT OF MOST BACKWARD CLASSES
DENOTIFIED COMMUNITIES, CHENNAI ...Respondent
Cont. P. (MD) No. 104 of 2006
D. SURULIAMMAL ...Petitioner
Versus
MR. A. NAGARAJAN, I.A.S., SECRETARY TO GOVERNMENT
OF TAMIL NADU, DEPARTMENT OF MOST BACKWARD CLASSES
DENOTIFIED COMMUNITIES, CHENNAI ...Respondents

[Review Application (MD) Nos.8, 20, 21 to 32 of 2007 and Contempt Petition (MD) Nos.237 of 2005 and
104 of 2006, decided on 14th September, 2007]
Civil Procedure Code, 1908—Order XLVII, Rules 1 and 2— Constitution of India, Article
226—Review—G. O. regarding special grade and selection grade to teachers quashed by Tribunal—
No appeal filed—Subsequently order were passed without bringing into notice of Court regarding of
earlier G. O.—Contradictory orders were passed—Contempt notices also issued—Due to
contradictory order anomalous situation created for State—Held, since all facts not brought to notice
of High Court and directions were issued by High Court—Hence in order to set right record it is
just and necessary that review applications be allowed—Accordingly applications allowed.
(Paras 28 to 35)
Case law.—(1997) 6 SCC 473; (1998) 2 SCC 602; (1991) 4 SCC 406— relied on.
 Counsel.—Mr. N. Kannadsan in Review Applications Addl. Advocate General and leading Mrs. V.
Chellammal, for respondents in learned Spl. Govt. Pleader Contempt Petitions, for the petitioners; Mr. R.
Inbaraj, in Review Applications and for petitioners in Contempt Petitions, for the respondent.
JUDGMENT
K. CHANDRU, J.—All the 14 review petitions are filed by the State of Tamil Nadu along
with the Director of Most Backward Classes and Denotified Communities and the Special Deputy
Collector, Kallar Reclamation, Madurai against the order of the learned Judge dated 15.6.2005, 16.6.2005
and 22.6.2005 made in various writ petitions noted above granting direction to the review petitioners to
implement the common order of the State Administrative Tribunal dated 20.3.2002 made in
O.A.No.587/1997 and batch cases.
2. This Court in all the writ petitions in which the present review petitions are filed extracted the
operative portion of the Tribunal’s order which is as follows:
“(1) The petitioners are Headmasters, promoted in the said post after 01.06.1988 in the
schools run by Kallar Reclamation Department. Their claim is that they should be
given Selection Grade and Special Grade after taking into the service as Secondary Grade
Teachers before and after 01.06.1988 along with the service rendered as Headmasters of
Elementary Schools. They claim the benefits as per G.O.Ms.No.1381, Education
Department dated 05.10.1990 issued in respect of other Elementary Schools
coming under the control of Director Elementary Education.
(2) Similar Original Applications have been filed in a batch of cases in O.A.Nos.3745 and
3911 of 1992 etc., wherein I have passed orders on 19.3.2002 allowing them following
the earlier orders of this Tribunal. The facts are identical.
(3) In the circumstances, the petitioners are also entitled for the same benefits. Therefore,
the petitions are allowed. The petitioners shall be granted Selection Grade and Special
Grade after taking into account the service rendered by them in the Secondary Grade
Cadre along with the service rendered as Elementary School Headmasters before and
after 01.06.1988. The petitions are ordered as above.”
3. It was stated by this Court that the Tribunal’s orders have attained finality and the State not
having challenged the earlier order, a direction was issued to comply with the order passed by the Tribunal
within a time frame of 12 weeks from the date of receipt of the copy of the order.
4. Against the non-implementation of the order of this Court made in W.P.(MD)No.4978 of 2005
dated 15.6.2005, Contempt Petition (MD)No.237 of 2005 has been filed by the respondent. As against the
order of the learned Judge dated 15.6.2005 in W.P.(MD)No.4978 of 2005, Review Application (MD) No.8
of 2007 has been filed by the State as stated already.
5. As against the non-implementation of the order in W.P.(MD)No.4979 of 2005 dated 15.6.2005,
Contempt Petition (MD) No.104 of 2006 has been filed by the respondent. As against the said order,
Review Application No.20 of 2007 has been filed by the State.
6. All these matters are taken together in view of the commonality of the issues involved.
7. Heard Mr.N.Kannadasan, learned Additional Advocate General, leading Mrs. V.Chellammal,
Special Government Pleader for review petitioners and for respondents in the contempt petitions and Mr.
R.Inbaraj, learned counsel for all the contesting respondents and petitioners in the contempt petitions
and have perused the records.
8. All these disputes emanated firstly from the petitioner/State in issuing G.O.Ms.No.1381
Education Department dated 5.10.1990. By the said order, the Government directed the Headmasters
of Primary Schools under the Government, local bodies and all kind of managements who were in
position as on 1.6.1988 to award Special Grade and Selection Grade in the revised scales on or after
1.6.1988 considering period of service rendered as Secondary Grade Teachers as well as Primary School
Headmasters prior to 1.6.1988. Since the Government’s G.O. dated 1.6.1988, the post of Headmasters
carries a higher scale of pay than that of the Secondary Grade Teacher those who are promoted as
Headmasters after 1.6.1988 were permitted to have their fixation of pay in the post of Headmasters as
provided under Fundamental Rule 22(b).
 9. It must be stated here that before 1.6.1988, the Headmasters of Primary Schools run by the
Government were not given separate scale of pay and the senior most teacher was made as a Headmaster
only with a meagre personal pay attached to the said individual. In view of the onerous of duties imposed
on the headmasters, many teachers were not willing to shoulder the responsibility as the personal pay
granted was a negligible amount and hence there was no clamour for getting the said post. However, after
the Pay Commission’s recommendation fixing a new scale of pay for the post of Headmasters, there
was a clamour to give the said scale of pay so that it also helped in getting both the senior scale of pay and
selection grade pay irrespective of the fact whether they were holding the post of Headmasters or not.
10. Therefore, when Original Applications were filed before the Tamil Nadu Administrative
Tribunal challenging the Government Order dated 1.6.1988 prescribed in G.O.Ms.No.1381, Education
Department dated 5.10.1990, the contention therein was that those persons who were eligible to get
promotions before 1.6.1988 but due to fortituous circumstances, they were not promoted as on 1.6.1988 as
Headmasters and there were juniors who happened to hold the post of Headmasters were given benefits of
G.O. There were 3 cases in this category viz., O.A.No.2897, 3009 and 3010 of 1991.
11. The Tribunal accepting the arguments of the applicants in those three applications, set aside the
Government Order by stating that it prescribed a differential treatment to the same categories of teachers.
Therefore, the order in G.O.Ms.No.1381, Education Department dated 5.10.1990 was quashed. The
operative portion of the order reads as follows:
“ ... The only course available to the Court would be to quash the entire provision and required the
Government to re-examine the matter and evolve a policy which does not involve a classification
not conforming to the constitutional provisions, as well as the test of fairness, which should
govern all administrative action. Accordingly, paragraphs 3 and 4 of G.O.Ms.No.1381 Education
Department dated 5.10.1990 are quashed. The Government is directed to re-examine the matter to
evolve a rational basis for fixation of pay of headmasters of elementary schools taking into
account service of the individuals in different capacities, the circumstances of their appointment
and the need to ensure uniform treatment of all persons in the cadre without any element of
arbitrariness or irrationality.”
12. Subsequent to this order, the matter was not challenged by the State but G.O.Ms.No.300,
Education, Science and Technology Department, dated 7.4.1994 was issued. Paras 3, 4 and 5 of the said
order are extracted below:
“(3) Government have carefully examined the observations of the Tamil Nadu Administrative
Tribunal and decided to accept the suggestion that Selection Grade and Special Grade for
Headmaster, Primary School should be granted based on the service rendered in the post
of Headmaster, Primary School alone. Accordingly, Government direct that the orders
issued in the G.O read above shall stand cancelled.
(4) Government direct that Headmasters of Primary School be awarded Selection Grade and
Special Grade based on the length of service rendered in the post of Headmaster, Primary
School. Government further direct that in respect of all these Headmaster of Primary
School who have already availed the benefit of Selection Grade/Special Grade as per the
orders issued in G.O.Ms.No.1381, Education Department, dated 5.10.90 by counting
the service in the post of Secondary Grade Teacher and Headmaster, Primary School,
they shall be allowed for retain their pay now drawn and fixed at the appropriate stage
in the ordinary Grade or Selection Grade Scales of pay and fixed at the appropriate stage
in the ordinary Grade or Selection Grade scales of pay normally admissible to them as
Headmaster, Primary School. Accordingly, a Secondary Grade Teacher entitled for
special Grade Scale of Rs.1640-2900 in the post of Secondary grade Teacher and acted as
Headmaster, Primary School on 1.6.88 and allowed fixation of pay in the Special grade
scale of Rs.2000-3200 admissible to Headmaster, Primary School shall be allowed to
retain that pay in the Special Grade Scale of Secondary Grade Teachers, viz. Rs.1640-
st
2900. This fixation shall be made with effect from 1 May, 1994. Illustrations are given
in the Annexure to this order.
 (5) Government also direct that those seniors promoted to the post of Headmaster, Primary
School after 1.6.88 shall have no claim over the pay of juniors who were given pay
protection as per these orders. Further, there may be cases where a junior would be
moved to Selection Grade or Special Grade further, because of more number of years of
service as Headmaster, Primary School compared as a senior who would be entitled for
Selection Grade or Special Grade in the post of Headmaster, Primary School from a later
date for the reason he would have rendered lesser number of years of service as
Headmaster, Primary School. In this case, the junior would be getting more pay than his
seniors. Government direct that these cases of Junior getting more pay than senior
should Act be rectified as movement to Selection Grade/Special Grade is based on the
length of service in the post of headmaster, Primary School and not with reference to
the total service as Secondary Grade Teacher and headmaster, primary School.
(6) The Director of Elementary Education is requested to take immediate action to arrange
for re-fixation of pay of all Headmasters, Primary Schools per those orders. The
departmental audit shall undertake audit of pay fixation of the Headmasters of Primary
Schools.”
13. Subsequently, several orders were issued by the Government with reference to the same subject.
The last being G.O.Ms.No.185, School Education Department 16.12.2002 and G.O.Ms.No.160 dated
23.8.2005. In the meanwhile, a batch of O.As were filed by contesting respondents being the first applicant
(K.Saroja) O.A.No.587 of 1997 (the present Contempt Petitioner in Contempt Petition (MD) No.237 of
2005). All these contesting respondents are working in various Schools run under the control of the second
and third respondents. These Original Applications were filed with a view to enforce G.O.Ms.No.1381,
Education Department dated 5.10.1990. The Tribunal in its order dated 20.3.2002 extracted the prayer of
the petitioner in para 2 of its order, which is as follows:
“2. The petitioners are Headmasters, promoted in the said post after 1.6.1988 in the
schools run by Kallar Reclamation Department. Their claim is that they should be
given selection grade and special grade after taking into the service as Secondary Grade
Teachers before and after 1.6.1988 along with the service rendered as Headmasters of
Elementary Schools. They claim the benefits as per G.O.Ms.No.1381, Education, dated
5.10.1990 issued in respect of other Elementary Schools running under the control of
Director of Elementary Education.”
14. In the operative portion viz., para 3 of the order, the Tribunal granted relief, which is as follows:
“3. In the circumstances, the petitioners are also entitled for the same benefits. Therefore,
the petitions are allowed. The petitioners shall be granted selection grade and special
grade after taking into account the service rendered by them in the secondary grade cadre
along with the service rendered as Elementary School Headmasters before and after
1.6.1988. The petitions are ordered as above.”
15. In fact, for enforcing this order only, writ petitions were filed by the respective contesting
respondents and they were allowed by this Court. Aggrieved by the same, the present review petitions
have been filed by the State and two contempt petitions have been filed by two contesting respondents.
16. At this stage, it must be stated that when the contesting respondents sought to enforce
G.O.Ms.No.1381 Education Department, dated 5.10.1990 with their original applications filed in the year
1997(which came up for disposal on 23.2.2002), the said G.O. itself was not in existence, as already by an
Order dated 24.9.1993, the Tribunal had quashed the said G.O. and directed the Government to have a
fresh rule on the said subject matter. Therefore, neither the petitioners informed the Court about the
previous order nor the State brought to the notice of the Tribunal about the said order being quashed by the
Tribunal with further directions. The Tribunal oblivious of the said fact, allowed the prayer of the
petitioner without any modification or took into account the subsequent developments.
17. In terms of the Administrative Tribunals’ Act, a subsequent Tribunal is bound by the decisions
of the previous Tribunal and there cannot be an order passed by the Tribunal contrary to the earlier
directions of the Tribunal.
 18. The Supreme Court in K.Ajit Babu v. Union of India, (1997) 6 SCC 473, held that the doctrine
of precedent will apply even to the Tribunals constituted under the Administrative Tribunals Act. The
relevant passage found in para 6 reads as follows:
“6. Consistency, certainty and uniformity in the field of judicial decisions are considered to
be the benefits arising out of the “Doctrine of Precedent”. The precedent sets a pattern
upon which a future conduct may be based. One of the basic principles of administration
of justice is, that the cases should be decided alike. Thus, the doctrine of precedent is
applicable to the Central Administrative Tribunal also. Whenever an application under
Section 19 of the Act is filed and the question involved in the said application stands
concluded by some earlier decision of the Tribunal, the Tribunal necessarily has to take
into account the judgment rendered in the earlier case, as a precedent and decide the
application accordingly. The Tribunal may either agree with the view taken in the earlier
judgment or it may dissent. If it dissents, then the matter can be referred to a larger
Bench/Full Bench and place the matter before the Chairman for constituting a larger
Bench so that there may be no conflict upon the two Benches. The larger Bench, then,
has to consider the correctness of the earlier decision in disposing of the later application.
The larger Bench can overrule the view taken in the earlier judgment and declare the law,
which would be binding on all the benches [See John Lucas, 1987 (3) ATC 328 (Bag)
(FB)].
19. Even the review petitioners did not bring it to the notice of the Tribunal about the quashing
of G.O.1381, Education Department, dated 5.10.1990 and subsequent G.O.Ms.No.300 Education
Department, dated 7.4.1994 and various clarifications, orders issued by the Government in this regard.
Further, when the writ petitions were filed by the contesting respondents, they have also never brought to
the notice of this Court, the ultimate G.O.Ms.No.185 School Education Department, dated 16.12.2002. In
the subsequent order in G.O.Ms.No.160 School Education Department, dated 23.8.2005, it was clearly
stated that G.O.Ms.No.1381 Education Department, dated 5.10.1990 was already set aside by the
Administrative Tribunal and no Headmasters of any Elementary School can have their wages fixed in terms
of the said G.O. Unfortunately, all these factors were not brought to the notice of this Court, when this
Court issued directions to the Government to implement the orders of the Tribunal, which was based upon
a non-existent G.O.Ms.No.1381 Education Department, dated 5.10.1990. For these state of affairs, only the
petitioners will have to blame themselves. Of course, the role of the State in this regard cannot be
minimised when the State, confronted by filing of writ petitions by various groups, did not bring it to the
notice of the Court the correct factual and legal position. It was bound to result in a state of anarchy in the
matter of implementation of orders and that really happened.
20. It is under these circumstances, the review petitioners/State filed the present review petitions
seeking to review the order of this Court. Technically, the review petitions should have been filed only to
review the order of the Tribunal dated 20.3.2002 and not a consequential order of direction passed by this
Court. Since the Tribunal itself has been abolished in the year 2006, there is no possibility of the State
filing any review petition. At least, they should have filed a writ petition challenging the Tribunal’s order
before this Court and even that was not done. In some cases, orders of the Tribunals have also been given
effect to by various officers of the State. Therefore, when faced with several consequential orders, it was
impossible for the State to file several writ petitions.
21. Therefore, the learned Additional Advocate General contended that the State is caught in
between two orders of the Tribunal and the High Court, which were diametrically opposite to each other
and this Court must come to rescue of the State and resolve the issue one way or the other.
22. Learned Additional Advocate General submits that after the Tribunal quashing
G.O.Ms.No.1381, subsequent order of the Tribunal directing to give effect to the said G.O., is a nullity,
non-est and unenforceable.
23. This Court being constituted under Article 226 of the Constitution must give complete and
effective justice so that the vagaries of the lower Courts’ order should not be a burden on the State to
implement mutually contradictory orders. In public interest, the present review petitions have been filed by
the State.
24. In A.R.Antulay v. R.S.Nayak and another, (1988) 2 SCC 602, the Constitution Bench of the
Supreme Court already vide its decision dealt with the concept of “ex debito justitiae”.
 25. Further, the following passage found in para 75 of the judgment cited supra may be usefully
extracted:
“75. Our attention was drawn to Article 145(e) and it was submitted that review can be made
only where power is expressly conferred and the review is subject to the rules made
under Article 145(e) by the Supreme Court. The principle of finality on which the article
proceeds applies to both judgments and orders made by the Supreme Court. But
directions given per incuriam and in violation of certain constitutional limitations and in
derogation of the principles of natural justice can always be remedied by the Court ex
debito justitiae. Shri Jethmalani’s submission was that ex debito justitiae, these
directions could not be recalled. We are unable to agree with this submission.”
26. Further, the following passage found in para 76 may be usefully extracted:
“76. The Privy Council in Isaacs v. Robertson 36 held that orders made by a court of
unlimited jurisdiction in the course of contentious litigation are either regular or
irregular. If an order is regular it can only be set aside by an appellate Court; if
it is irregular it can be set aside by the Court that made it on application being made to
that Court either under rules of Court dealing expressly with setting aside orders for
irregularity or ex debito justitiae if the circumstances warranted, namely, where there was
a breach of the rules of natural justice etc. Shri Jethmalani urged before us that Lord
Diplock had in express terms rejected the argument that any orders of a superior Court of
unlimited jurisdiction can ever be void in the sense that they can be ignored with
impunity. We are not concerned with that. Lord Diplock delivered the judgment. Another
Judge who sat in the Privy Council with him was Lord Keith of Kinkel. Both these Law
Lords were parties to the House of Lords judgment in In Re Recal Communications Ltd.,
case 48 and Their Lordships did not extend this principle any further. Shri Jethmalani
submitted that there was no question of reviewing an order passed on the construction of
law. Lord Scarman refused to extend the Anisminic 14 principle to superior Courts by the
felicitous statement that this amounted to comparison of incomparables. We are not
concerned with this controversy. We are not comparing incomparables. We are
correcting an irregularity committed by Court not on construction or misconstruction of
a statute but on non-perception of certain provisions and certain authorities which would
amount to derogation of the constitutional rights of the citizen.”
27. The Supreme Court in its judgment in Delhi Judicial Service Association v. State of Gujarat,
(1991) 4 SCC 406, dealt with the power of the Courts including the power under Article 226 of the
Constitution. The following passage found in para 37 may be usefully extracted:
“37. Since this Court has power of judicial superintendence and control over all the Courts
and tribunals functioning in the entire territory of the country, it has a corresponding
duty to protect and safeguard the interest of inferior Courts to ensure the flow of the
stream of justice in the Courts without any interference or attack from any quarter. The
Supreme Court and the High Court both exercise concurrent jurisdiction under the
constitutional scheme in matters relating to fundamental rights under Articles 32 and 226
of the Constitution....”
28. In view of the aforesaid decisions, the matter has to be looked in depth. However, Mr.
R.Inbaraj, learned counsel for the contesting respondents stated that the attempt by the State to file the
review petitions is misconceived, legally impermissible and discriminatory. With the counter affidavit filed
and in the written arguments filed in the review petitions, he contended that the State has no regard for the
Court’s order and the State has no locus-standi to file the review petitions to reopen the concluded issues.
29. He has also stated that in similar cases, not in respect of another department, a Division Bench
of this Court had dismissed the writ petitions filed against the Tribunal’s order. But those petitions were
dismissed on the ground of delay. He also stated in some cases, the Tribunal’s orders were complied with.
Therefore, the review petitions should be dismissed but with reference to the contentions raised by the
learned Additional Advocate General, there is no answer from the contesting respondents.
30. Further, he fairly submitted that in respect of Schools run by the Kallar Reclamation
Department, there was no post of Headmaster for Elementary Schools and they were established only
from 1.2.1990 and because of this fact, there is no separate pay fixed for the Headmasters at the time
th
of grant of 5 Pay Commission as these Schools never had the post of Headmaster.
31. Per contra, learned Additional Advocate General submitted that if the claims of the contesting
respondents are allowed, then it will result in an anomalous situation, thereby for each post of an
Elementary School Headmaster, there will be minimum 5 claimants said to be holding the post
of Headmaster and consequent fixation of seniority, and selection grade will have to be given on the basis
of their allegedly held the post or notional drawal pay of an Headmaster.
32. The learned Additional Advocate General also stated that inasmuch having empowered to take
note of the previous Tribunal’s judgment and issued modified order in G.O.Ms.No.185 School Education,
dated 16l.12.2002. It was further modified in G.O.Ms.No.160 School Education, dated 23.8.2005 and the
said orders not being challenged by the contesting respondents and there is no question of relying upon the
subsequent Tribunal’s order and it had become nullity and non-est.
33. The last order dated 23.8.2005, which was very much available before this Court, when a
direction was issued, clearly states that no teacher’s salary will be fixed on the basis of G.O.Ms.No.1381,
dated 5.10.1990, which had already been set aside by the Tribunal.
34. In fact, even that G.O. is now the subject-matter of challenge in many writ petitions. When that
is the case the contesting respondents cannot have an unjust enrichment on the basis of the subsequent
Tribunal’s order, which itself was passed contrary to the earlier Tribunal’s order.
35. Since all these facts were not brought to the notice of this Court, directions were issued by this
Court on 15.6.2005 allowing the case of the contesting respondents. Therefore, in order to set right the
record, it is just and necessary that review applications should be allowed and the earlier directions to
implement the orders of the Tribunal dated 20.3.2002 should stand set aside. Accordingly, all the 14
review applications are allowed.
36. In view of the orders in the review applications, there is no question of respondents of
committing any contempt of the orders of this Court. Hence, both the Contempt Petitions (MD) Nos.237
of 2005 and 104 of 2006 are closed. However, there will be no order as to costs.
Review Application allowed.

[2008 (1) TNCJ 87 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE :
A. SELVAM, J.
M. THANGAMANI …..Petitioner
Versus
P. DHARMARAJ AND ANOTHER ...Respondents
[Civil Revision Petition PD No.711 of 2007, decided on 10 September, 2007]
th

(A) Civil Procedure Code, 1908—Order I, Rule 10 (2)—Tamil Nadu Buildings (Lease and
Rent Control) Act, 1960, Section 8(5)—Impleadment of necessary party—Applicability in Act of
1960—Held, provision of Order I, Rule 10 of C.P.C. is applicable to any proceedings instituted under
Rent Control Act of 1960. (Para 12)
(B) Civil Procedure Code, 1908—Section 115 and Order I, Rule 10 (2)—Tamil Nadu Buildings
(Lease and Rent Control) Act, 1960, Section 8 (5)—Revision—Application for impleadment of
necessary party dismissed—Order passed without touching right of parties in rent control
proceeding and concerned order not became final—Held, such order is revisable.
(Para17)
Case law.—1989 (2) LW 412; 1984 (3) TNLJ 221; 1991 (1) MLJ 416; 1974 TNLJ 247 —referred;
2007 (3) CTC 822—not applicable.
Counsel.—Mr. M. Thirunavakukkarasu for the petitioner, Mr. J. Suresh Kumar for the respondent
1; no appearance for respondent 2.
 JUDGMENT
A. SELVAM, J.—Challenge in this Civil Revision Petition is to the order dated 18.12.2006 passed in
Interlocutory Application No.1416 of 2005 in Rent Control Original Petition No.1 of 2005 by the Rent
Controller, Srivilliputhur.
2. The revision petitioner/proposed second respondent has filed Interlocutory Application No.1416
of 2005 in Rent Control Original Petition No.1 of 2005 under Order I, Rule 10 (2) of the Code of Civil
Procedure, praying to implead him as second respondent in Rent Control Original Petition No.1 of 2005,
wherein the present revision respondents have been shown as the respondents.
3. It is stated in the petition that the demised premises is originally belonged to the second
respondent and he leased out the same to the first respondent/petitioner. The second respondent has desire
to sell his demised premises to the petitioner and the sale amount has been fixed at Rs.2,63,000/- and on
20.6.2004, a sum of Rs.20,000/- has been paid as advance to the second respondent and to that effect, a sale
agreement has come into existence and to that effect, a sale agreement has come into existence and the
petitioner has purchased the demised premises on 16.9.2004 and since purchase he has become the owner
of the demised premises. The respondents 1 and 2 have created a bogus sale agreement in favour of the
first respondent, suppressing the sale made in favour of the petitioner on 16.9.2004. The first respondent
has filed the Original Suit No.144 of 2004 on the file of the Sub-Court, Srivilliputhur, wherein the present
petitioner has filed an application in Interlocutory Application No.27 of 2005, so as to implead him. The
first respondent has filed Rent Control Original Petition No.1 of 2005. Since the petitioner has purchased
the demised premises, he is also a necessary party. Under the said circumstances, the present petition has
been filed.
4. It has been contended on the side of the first respondent that the demised premises is originally
belonged to the second respondent and the second respondent has let out the same in favour of the father of
the first respondent on 17.8.2006. On 1.4.2006, a rental agreement has come into existence. The second
respondent has approached the father of the first respondent to sell the demised premises and accordingly,
an agreement of sale has come into existence on 2.8.2004. The second respondent has executed a sale deed
in favour of the petitioner and therefore, the first respondent has filed Original Suit No.144 of 2004. The
petitioner is not at all a necessary party to Rent Control Original Petition No.1 of 2005 and further, the
present petition is not legally maintainable. Therefore, the same deserves dismissal.
5. On the basis of the divergent contentions raised by either party, the Court below has dismissed
the petition mainly on the ground that the present petition is not maintainable in rent control proceedings.
6. Before considering the rival arguments advanced by either side, it would be more useful to look
into the maintainability of the present petition. It is an admitted fact that the present petition has been filed
under Order I, Rule 10 (ii) of the Code of Civil Procedure praying to implead the revision petitioner as the
second respondent in Rent Control Original Petition No.1 of 2005. The first respondent herein as petitioner
has filed Rent Control Original Petition No.1 of 2005 under Section 8 (5) of the Tamil Nadu Buildings
(Lease and Rent Control) Act, 18 of 1960. The Court below without considering the merits and demerits of
the petition has simply dismissed the same on the ground that Order I, Rule 10 (ii) of the Code of Civil
Procedure is not applicable to the Rent Control Proceedings.
7. In order to analyse the above legal position, it would be apropos to look into the following
decisions.
8. The first and foremost decision is reported in 1989 (2) LW 412 (S.V.Chidambara Pillai v.
S.N.V.R.N.Subramaniam Chettiar & Ors.), wherein this Court has held that—
“Subsequent purchaser of the demised premises is necessary party and further held that the
provision of Order I, Rule 10 is applicable to the Tamil Nadu Buildings (Lease and Rent Control)
Act, 18 of 1960.”
9. The second decision is reported in 1984 (3) TNLJ 221 (Boochi Ammal and others v. G.Mari
Chettiar and another), wherein this Court has held that—
“Pending revision, landlord has sold the demised premises to the third party, the third party can
implead himself as party under Order I, Rule 10 of the Code of Civil Procedure.”
10. The third decision is reported in 1991 (1) MLJ 416 (S.E.A.Raja v. M.R.Lakshminarasimha
Gupta and others), wherein also this Court has held that—
 “Petition filed to implead the brothers of the tenant under Order I, Rule 10 of the Code of Civil
Procedure is perfectly maintainable.”
11. The Court below has relied upon the decision reported in 1974 TNLJ 247 ( Aruppukottai
Dravida Munnetra Kazhagam v. M. Periaswami and another), wherein this Court has held that—
“There is no provision in the Madras Buildings (Lease and Rent Control) Act or in the Rules
framed under the said Act, for any of the provisions of the Civil Procedure Code being made
applicable to actions and proceedings taken or instituted under the Act.”
12. It has already been narrated that in various decisions of this Court, it has been consistently held
that in a petition filed under any of the provisions of the Tamil Nadu Buildings (Lease and Rent Control)
Act, 18 of 1960, petition under Order I, Rule 10 of the Code of Civil Procedure is maintainable. Therefore,
in view of the subsequent consistent decisions of this Court, it is needless to say that the decision reported
in 1974 TNLJ 247 (Aruppukottai Dravida Munnetra Kazhagam v. M. Periaswami and another) is no
longer a good law and the same can be eschewed. It has already been pointed out that in the decisions
referred to supra, this Court has consistently held that Order I, Rule 10 of the Code of Civil Procedure is
applicable to any proceedings instituted under Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of
1960. Therefore, the finding given by the Court below with regard to maintainability of the present petition
is totally erroneous. On that ground alone, the impugned order passed by the Court below is liable to be
interfered with.
13. It is an admitted fact that the present petition has been filed under Order I, Rule 10 (2) of the
Code of Civil Procedure, praying to implead the revision petitioner as second respondent in Rent Control
Original Petition No.1 of 2005. The first respondent herein has filed Rent Control Original Petition No.1 of
2005 under Section 8 (5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960, wherein
the present second revision respondent has been shown as the sole respondent. The main contention of the
revision petitioner is that the demised premises is originally belonged to the second respondent herein and
he sold the same in his favour on 16.9.2004 and therefore, the revision petitioner has become the absolute
owner of the same. Since the revision petitioner has become the absolute owner of the demised premises,
he is also a proper and necessary party to Rent Control Original Petition No.1 of 2005. Under the said
circumstances, the present petition has been filed.
14. The learned counsel appearing for the first respondent has repeatedly contended that the present
petition has been filed under Order I, Rule 10 (ii) of the Code of Civil Procedure and the Court below has
dismissed the same and therefore, against the order passed by the Court below only civil miscellaneous
appeal is maintainable and the present civil revision petition is not legally maintainable. On that score
alone, the present civil revision petition is liable to be dismissed.
15. In support of his contention, he has drawn the attention of the Court to the decision reported in
2007 (3) CTC 822 (S.M.Chandrasekaran v. S.S.Jayamani and others), wherein this Court has held that
“against the order passed under Section 5 of the Limitation Act filed in rent control proceedings, civil
revision petition is not maintainable and only civil miscellaneous appeal alone is maintainable. In fact, this
Court has followed the dictum found in 1982 (1) AIRCJ 557 (Chinnaraju Naidu v. Bavani Bai), wherein
this Court has held that
“All Interlocutory orders passed during the proceedings under the Act under the Tamil Nadu
Buildings (Lease and Rent Control) Act, 18 of 1960 cannot be said to be the orders which affects
the rights and liabilities of the parties, in the sense that they become final orders though passed on
interlocutory applications, such as refusing to set aside an ex parte order etc., defect or
irregularity, if any in such an order as a ground of objection in his appeal from the final order in
the main proceedings.”
16. In the decision referred to by the learned counsel appearing for the first respondent, the Court
below has passed its order in a petition filed under Section 5 of the Limitation Act. The Court below has
dismissed the same. Therefore, the rights of the parties have become final. Under the said circumstances,
the only civil miscellaneous appeal is maintainable and not the civil revision petition.
17. In the instant case, as stated in many places, the present petition has been filed only under
Order I, Rule 10 (ii) of the Code of Civil Procedure, praying to implead the revision petitioner as the
second respondent in Rent Control Original Petition No.1 of 2005. The Court below has dismissed the
same mainly on the ground that the same is not maintainable in rent control proceedings. It has already
been held that the present petition is legally maintainable in rent control proceedings in view of the
consistent decisions of this Court. Of course, it is true that the Court below has dismissed the present
petition. The dismissal order passed by the Court below has not decided the rights of the parties and
further, the impugned order has not reached its finality with regard to the dispute between the parties.
Therefore, it is quite clear that if any order is passed in rent control proceedings without touching the rights
of the parties or if the concerned order has not become final and against that order civil revision petition is
legally maintainable and there is no need on the part of the affected party to prefer civil miscellaneous
appeal. In view of the foregoing discussion of both the factual and legal premise, it is needless to say that
the decision rendered in 2007 (3) CTC 822 (S.M.Chandrasekaran v. S.S.Jayamani and others) is not
applicable to the facts of the present case. Therefore, the argument advanced by the learned counsel
appearing for the first respondent is totally misconceived and the same cannot be given weight to.
18. The learned counsel appearing for the revision petitioner/petitioner has also contended that the
Court below has erroneously dismissed the present petition mainly on the ground of its maintainability.
Further, he has contended that the revision petitioner/petitioner has purchased the demised premises from
the second respondent under a registered sale deed dated 16.9.2004 and therefore, the revision
petitioner/petitioner has become the absolute owner of the demised premises and he is a necessary and
proper party and therefore, the present petition is liable to be allowed.
19. It has already been held that in view of the consistent decisions of this Court, the present
petition is legally maintainable and further, against the impugned order, the present civil revision petition is
also legally maintainable. The main contention of the revision petitioner/petitioner is that he purchased the
demised premises from the second respondent under a registered sale deed dated 16.9.2004. The first
respondent herein has filed Rent Control Original Petition No.1 of 2005 under Section 8 (5) of the Tamil
Nadu Buildings (Lease and Rent Control) Act, 18 of 1960, wherein the erstwhile owner of the demised
premises has alone been impleaded as sole respondent. Since the revision petitioner/petitioner has
purchased the demised premises under the sale deed dated 16.9.2004, he is also a necessary and proper
party to the proceedings of Rent Control Original Petition No.1 of 2005. Therefore, the present petition is
liable to be allowed. In view of the foregoing narration of both the factual and legal aspects, this Court has
found that the impugned order is liable to be set aside.
20. In fine, this civil revision petition is allowed with costs. The order passed in Interlocutory
Application No.1416 of 2005 in Rent Control Original Petition No.1 of 2005 by the Rent Controller,
Srivilliputhur is set aside and the petition filed in Interlocutory Application No.1416 of 2005 is allowed and
the Rent Controller, Srivilliputhur is directed to implead the revision petitioner in Rent Control Original
Petition No.1 of 2005. Consequently, the connected Miscellaneous Petition No.1 of 2007 is closed.
Revision allowed.

[2008 (1) TNCJ 91 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE :
A. SELVAM, J.
SORIMUTHU BHATTAR ...Petitioner
Versus
MAHAARAJA BHATTAR …Respondent
[CRP NPD No.645 of 2003 and CMP No.6803 of 2003, decided on 6 th
September, 2007]
(A) Mortgage deed—Suit for reconveyance—Execution of mortgaged deed in year in
1970 by defendant—Wife of plaintiff has got made over of said mortgage deed in 1974—Defendant
not discharged amount hence suit by plaintiff—Suit decreed by Trial Court but set aside by first
appellate Court on ground of bar of limitation—Held, mortgage was simple mortgage and suit was
instituted in year 1996 hence barred by limitation—Appeal dismissed. (Para 10)
 (B) Succession Act, 1925—Section 214—Succession certificate to file suit—Execution of
mortgaged deed by defendant—Wife of plaintiff obtained alleged made over—Suit instituted on basis
of alleged made over—Wife passed away—Before instituting suit plaintiff not obtained succession
certificate—Hence, suit not maintainable.
(Paras 14 and 15)
Counsel.—Mr. D. Rajagopal for the petitioner, Mr. M. A. Abdul Wahab for the respondent.
JUDGMENT
A. SELVAM, J.—Challenge in this civil revision petition is to the judgment and decree dated
24.01.2003 passed in Appeal Suit No.28 of 2002 by the Principal District Court, Kanyakumari District at
Nagercoil, wherein the judgment and decree passed in Original Suit No.269 of 1996 passed by the Second
Additional Subordinate Court, Nagercoil are set aside.
2. The revision petitioner as plaintiff has instituted the Original Suit No.269 of 1996 on the file of
the Second Additional District Munsif Court, Nagercoil, praying to pass a preliminary decree on the basis
of mortgage deed dated 16.03.1970.
3. It is averred in the plaint that the property mentioned in the schedule is originally belonged to one
Thanu Bhattar, the father of the plaintiff and the defendant and he died leaving behind him, his wife viz.,
Kuppammal and three sons viz., the plaintiff, defendant and one Chorimuthu Pattar as his legal heirs.
During the life time of Kuppammal the aforesaid three sons have partitioned the estates of the deceased
under a partition deed dated 30.11.1963. In the said partition, the property mentioned in the schedule has
been allotted to the share of the defendant. On 16.03.1970 the defendant has executed a mortgage deed in
favour of one Nalayini and thereby received Rs.1,250/- and he has not discharged the same and
subsequently, the wife of the plaintiff has got made over of the said mortgage deed on 12.09.1974. The
wife of the plaintiff has passed away and despite of repeated demands of the plaintiff, the defendant has not
discharged the amount mentioned in the plaint. Under the said circumstances, the present suit has been
instituted for the relief of indicated supra.
4. It is averred in the written statement that all the properties of the deceased Thanu Bhattar have
not been divided and only movable properties have been divided. The defendant, as the eldest male
member of the family, has made all expenses for the mother and sisters, and in order to meet the family
expenses, he has executed the mortgage deed dated 16.03.1970. The wife of the plaintiff has wantonly and
wilfully obtained made over of the mortgage deed dated 16.03.1970. The plaintiff alone is not the legal
heir of his wife. There is no merit in the suit and the same deserves dismissal.
5. On the basis of divergent pleadings raised by either party, the trial Court has framed necessary
issues and after pondering both the oral and documentary evidence, has decreed the suit as prayed for.
Against the judgment and decree passed by the trial Court, the defendant as appellant has preferred Appeal
Suit No.28 of 2002 on the file of the Principal District Court, Kanyakumari District at Nagercoil. The first
appellate Court after reappraising the evidence available on record, has allowed the appeal and thereby set
aside the judgment and decree passed by the trial Court and consequently, dismissed the suit. Against the
judgment and decree passed by the first appellate Court, the present civil revision petition has been filed.
6. The learned counsel appearing for the civil revision petitioner/plaintiff has advanced his
argument stating that the respondent/defendant has executed a mortgage deed in favour of one Nalayini
with regard to the property mentioned in the schedule and thereby received a sum of Rs.1,250/- and he
has failed to discharge the same and therefore, the wife of the plaintiff viz., Jayalakshmi has settled the
entire amount and got made over of the said mortgage deed dated 16.03.1970, on 12.09.1974 and
despite of her strenuous efforts, the respondent/defendant has failed to discharge the amount and she passed
away and therefore, the plaintiff has instituted the present suit, but the first appellate Court has dismissed
the suit as barred by limitation and the respondent/defendant has clearly admitted his liability before the
concerned legal aid committee and to that extent he has given a statement and the concerned counsel
attached to legal aid committee has also given a report to that effect and the first appellate Court without
considering the statement given by the respondent/defendant as well as the report given by the concerned
advocate, has erroneously dismissed the suit mainly on the ground of limitation and therefore, the judgment
and decree passed by the first appellate Court are liable to be set aside.
 7. Per contra, the learned counsel appearing for the respondent/ defendant has also equally
contended that in the present case, the originals of mortgage deed dated 16.03.1970 and the made over
dated 12.09.1974 have not been filed into Court and further no statement has been given by the
respondent/defendant in the legal aid committee and under the said circumstances, the present suit is barred
by limitation and the first appellate Court after considering all the contentions raised by either side, has
allowed the appeal and thereby set aside the judgment and decree passed by the trial Court and
therefore, there is no valid ground to make interference with the well merited judgment passed by the first
appellate Court and altogether the present civil revision petition deserves dismissal.
8. Basing upon the rival submissions made by either counsel, the Court has to find out as to whether
the judgment and decree passed by the first appellate Court are liable to be set aside.
9. The first appellate Court has allowed the appeal on the ground of limitation and also on the
ground that the originals of mortgage deed as well as made over have not been produced on the side of the
revision petitioner/ plaintiff.
10. The specific case of the revision petitioner/plaintiff is that the respondent/defendant has
executed the mortgage deed dated 16.03.1970 in favour of one Nalayini Ammal and subsequently wife of
the plaintiff has got made over of the same. As rightly pointed out by the first appellate Court, the Originals
of the said documents have not been produced on the side of the revision petitioner/plaintiff. The
specific contention urged on the side of the respondent/defendant is that he has executed a mortgage deed
dated 16.03.1970. Even on the basis of admission made on the side of the respondent/defendant, the Court
can come to a conclusion that he has executed a mortgage deed dated 16.03.1970, but the present suit has
been instituted in the year 1996. The alleged mortgage deed is nothing but simple mortgage. Therefore, on
the date of the filing of the suit it is clearly barred by limitation. The learned counsel has mainly stressed
his argument on the basis of Ex.A-4. Ex.A-4 is a statement alleged to have been given by the
respondent/defendant before the legal aid committee. It is not an exaggeration to say that in Ex.A-4, no date
has been mentioned. Since Ex.A-4 does not contain any specific date, Ex.A-4 will not save the period of
limitation and further under Ex.A-4 no fresh period has become started. Therefore, viewing from any
angle, it is needless to say that the present suit is clearly barred by limitation.
11. The learned counsel for the revision petitioner/defendant has also accentuated the Court to look
into Ex.A-6. Ex.A-6 is a report dated 08.12.1978 given by the concerned counsel to the legal aid
committee. Simply because Ex.A-6 has come into existence on 08.12.1978, the Court cannot come to a
conclusion that Ex.A-4 has also come into existence on the said date. It has already been taunted that Ex.A-
4 does not contain any specific date. Therefore, viewing from any angle, the argument advanced by the
learned counsel appearing for the revision petitioner/plaintiff does not hold good.
12. The present suit has been instituted only for the purpose of getting preliminary decree to the
tune of Rs.12,525/-. The main contention urged on the side of the revision petitioner/plaintiff is that the
original mortgage deed has come into existence on 16.03.1970 and the wife of the plaintiff viz.,
Jayalakshmi has got made over of the same on 12.09.1974 and subsequently, she died leaving behind her,
the present plaintiff as her legal heir and therefore, the present plaintiff has instituted the present suit for
getting preliminary decree to the extent of Rs. 12,525/-. At this juncture, it would be apropos to look into
Section 214 of the Indian Succession Act and the same reads as follows;
“(1) No Court shall—(a) pass a decree against a debtor of a deceased person for payment
of his debt to a person claiming on succession to be entitled to the effects of the
deceased person or to any part thereof, or
(b) proceed, upon an application of a person claiming to be so entitled, to execute against
such a debtor a decree or order for the payment of his debt, except on the production, by
the person so claiming, of—
(i) a probate or letters of administration evidencing the grant to him of administration to the
estate of the deceased, or
(ii) a certificate granted under Section 31 or Section 32 of the Administrator-General’s Act, 1913,
and having debt mentioned therein, or
(iii) a succession certificate granted under Part X and having the debt specified therein, or
(iv) a certificate granted under the Succession Certificate Act, 1889, or
 (v) a certificate granted under Bombay Regulation No.VIII of 1927 and, if granted after the first
day of May 1889, having the debt specified therein.
(2) The word ‘debt’ in sub-section (1) includes any debt except rent, revenue of profits
payable in respect of land used for agricultural purpose.”
13. From the close reading of the provisions of the said section, the Court can discern the following
legal aspects :
(1) The claim must be for recovery of a debt and the relationship of debtor and creditor must
exist between the defendant and the deceased.
(2) The debt must be owing at the death of the deceased.
(3) The claim must be based on succession.
(4) The claimant must be claiming to be entitled to the effects of the deceased:
(5) The claim must be against the debtor for the deceased.
14. The revision petitioner has instituted the present suit claiming to be the legal heir of his
deceased wife. The wife of the revision petitioner/plaintiff has obtained the alleged made over dated
12.09.1974. Only on the basis of the alleged made over dated 12.09.1974, the present suit has been
instituted. Admittedly the wife of the plaintiff has passed away, but before instituting the suit as per
Section 214 of the said Act, the plaintiff has not obtained any succession certificate so as to enable
him to file the present suit. As per provision of the said section, no Court is competent to pass a
decree against a debtor of a deceased person for payment of his debt to a person claiming of succession to
be entitled to the effects of the deceased person or to any party thereof, unless he has obtained a succession
certificate under the said section. In the instant case, as noted down earlier, before instituting the present
suit no succession certificate has been obtained by the revision petitioner/plaintiff. On that ground also the
present suit is liable to be thrown out.
15. It is an acknowledged principle of law that a legal heir of the deceased before instituting a suit
for recovery of debt against a debtor of a deceased person on the basis of succession, has to obtain
necessary succession certificate from the concerned Court and then only the right of sue accrues to him.
But the present revision petitioner/plaintiff has not done it and, therefore, on that ground also the present
suit is liable to be dismissed.
16. In view of the foregoing elucidation of both factual and legal aspects, this Court has not found
any valid ground to make interference with the well merited order passed by the first appellate Court and,
therefore, the argument advanced by the learned counsel appearing for the revision petitioner/plaintiff is
nothing but hazy and the same cannot be given weight to, whereas the argument advanced by the
learned counsel appearing for the respondent/ defendant is really having subsisting force.
17. In fine, this civil revision petition deserves dismissal and accordingly is dismissed without costs.
The judgment and decree passed in Appeal Suit No.28 of 2002 by the Principal District Court,
Kanyakumari District at Nagercoil, are confirmed. Consequently, connected miscellaneous petition is
closed.
Revision dismissed.

[2008 (1) TNCJ 96 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE :
A. SELVAM, J.
R. PANDIA PRABHAKAR ….Petitioner
Versus
P. DURAICHAMY AND ANOTHER ….Respondents
[Civil Revision Petition No.914 of 2006, decided on 3rd September, 2007]
 Civil Procedure Code, 1908—Order IX, Rule 13—Limitation Act, 1963—Article 123—Ex-
parte order—Setting aside of—Limitation for—Neither defendant nor his counsel present on date
fixed—Suit decreed ex-parte—Cause shown that counsel started practicing in another city—
Application for setting aside ex-parte order rejected—Appellate Court however allowed it—Legality
of—Held, no sufficient cause shown and no evidence led in support of claim—Further application
filed belatedly and application under Section 5 of condoning of delay not filed—Hence,
appellate Court erred in reversing order—Revision allowed.
(Paras 16 and 17)
Case law.—1998 (1) L.W. 9; 1993 Supp (3) SCC 256; 2000 (1) L.W. 723; 2001 (6) SCC 176—
relied on.
Counsel.—Mr. M. R. Murugesan for the petitioner, Mr. M. Lakshmi Shankar for the respondents.
JUDGMENT
A. SELVAM, J.—Challenge in this civil revision petition is to the judgment and decree dated
9.6.2006 passed in Civil Miscellaneous Appeal No.33 of 2005 by the Principal District Court, Dindigul,
wherein the order passed in Interlocutory Application No.358 of 2005 in Original Suit No.334 of 2001 by
the Additional Sub-Court, Dindigul is reversed.
2. The respondents herein as petitioners have filed Interlocutory Application No.358 of 2005 in
Original Suit No.334 of 2001 under Order IX, Rule 13 of the Code of Civil Procedure, praying to set aside
the ex parte decree dated 3.12.2004 passed against them.
3. It has been contended on the side of the respondents/petitioners that the revision
petitioner/respondent herein as plaintiff has instituted the Original Suit No.334 of 2001 on the file of the
Additional Sub-Court, Dindigul for the relief of specific performance. On the side of the
respondents/petitioners, one Advocate by name B.B.M.Salim has been appointed and he has given
assurance to look after the Original Suit No.334 of 2001. The respondents/petitioners have received a
notice in Execution Petition No.232 of 2005 during August 2005 and immediately, the
respondents/petitioners have tried to contract the said Advocate and the door of his house has been locked
and after enquiry, the respondents/petitioners have learnt that the said Advocate has shifted his
practice to Kodaikanal and after receiving case bundle, the present petition has been filed, so as to set aside
the ex parte decree dated 3.12.2004.
4. On the side of the revision petitioner/respondent, a detailed counter has been filed, wherein it has
been specifically contended that the first petitioner/first defendant has agreed to sell the suit property
found in Original Suit No.334 of 2001 for a sum of Rs.1,10,000/- and he has received Rs.1,00,000/- as
advance and subsequently, the first petitioner/first defendant has sold the suit property in favour of the
second petitioner/second defendant and under the said circumstances, the Original Suit No.334 of 2001 has
been filed for the relief of specific performance and the Original Suit No.334 of 2001 has been listed on
3.11.2004 and on the side of the respondent/plaintiff, three witnesses have been examined and the counsel
appeared for the petitioners/defendants have cross-examined them and on 3.12.2004, neither the
counsel of the petitioners/defendants nor the respondent/plaintiff has had appeared and due to that,
decree has been passed on 3.12.2004 and in pursuance of the same, Execution Petition No.232 of 2005 has
been filed and it is false to say that only on 5.9.2005, the petitioners/defendants have come to know the
decree dated 3.12.2004 and further, the present petition is barred by limitation and therefore, the same
deserves dismissal.
5. On the basis of the divergent contentions raised by either party, the trial Court has dismissed the
petition mainly on the ground that the present petition is barred by limitation. Against the order passed
by the trial Court, the present respondents have filed Civil Miscellaneous Appeal No.33 of 2005 on the file
of the Principal District Court, Dindigul. The First Appellate Court has allowed the Civil Miscellaneous
Appeal and thereby set aside the order passed by the trial Court and ultimately, allowed the petition in
question. Against the judgment passed in Civil Miscellaneous Appeal No.33 of 2005 by the First
Appellate Court, the present Civil Revision Petition has been filed at the instance of the revision
petitioner/respondent/plaintiff.
6. Before considering the rival arguments made on either side, it has become shunless to narrate
something about the Original Suit No.334 of 2001. The revision petitioner/respondent as plaintiff has
instituted the Original Suit No.334 of 2001 on the file of the Additional Sub-Court, Dindigul for the relief
of specific performance, wherein the present respondents/petitioners have been shown as the defendants. It
is averred in the plaint that the first respondent/first petitioner herein has agreed to sell the suit property in
favour of the revision petitioner/respondent/plaintiff for a sum of Rs.1,10,000/- and received
Rs.1,00,000/- by way of advance and also executed the sale agreement dated 5.12.2000. Since the first
respondent/first petitioner/first defendant has sold the suit property in favour of the second
respondent/second petitioner/second defendant, the revision petitioner as plaintiff has instituted the
Original Suit No.334 of 2001. The Original Suit No.334 of 2001 has been posted for trial on 3.11.2004. On
the side of the defendant, one Advocate by name B.B.M.Salim has been appointed and he has cross-
examined the witnesses of the plaintiff and subsequently, the suit has been posted on 3.12.2004. On that
day, the respondents/petitioners and their counsel have failed to appear before the Court and
therefore, the judgment has been pronounced on 3.12.2004 by the trial Court.
7. The present petition has been filed under Order IX, Rule 13 of the Code of Civil Procedure and
the same reads as follows:—
“In any case in which a decree is passed ex parte against a defendant, he may apply to the Court
by which the decree was passed for an order to set it aside; and if he satisfies the Court that the
summons was not duly served, or that he was prevented by any sufficient cause from appearing
when the suit was called on for hearing, the Court shall make an order setting aside the decree as
against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit.”
8. From the close reading of the provision of Order IX, Rule 13, it is easily discernible that the
person who wants to invoke the said provision, must show sufficient cause for his non-appearance.
9. The respondents/petitioners/defendants have invoked the provision of Article 123 of the
Limitation Act, 1963, wherein it reads as follows:—
“To set aside the decree The date of decree where the
passed ex parte or to re summons or notice was not
hear an appeal decreed Thirty days duly served, when the applicant
or heard ex parte had knowledge of the decree.”

The requirement of Article 123 of the Limitation Act are two fold:—
(i) the date of decree
(ii) Or where the summons or notice has not been duly served from the date when the applicant
knows the decree.
10. With these legal backdrops, the Court has to analyse the present case.
11. The learned counsel appearing for the revision petitioner/respondent/plaintiff has strenuously
contended that the revision petitioner/respondent/ plaintiff has instituted the Original Suit No.334 of
2001 for the relief of specific performance and the same has been posted for trial on 3.11.2004 and on the
side of the plaintiff, three witnesses have been examined and the counsel appearing for the defendants has
cross-examined them and finally, the suit has been posted on 3.12.2004 and on that day, the
respondents/petitioners/defendants and their counsel have not made their appearance and therefore, the trial
Court has rendered its judgment on 3.12.2004 on the basis of available evidence and on the strength of
the decree dated 3.12.2004, the revision petitioner/respondent/plaintiff has levied execution in Execution
Petition No.232 of 2005 and the respondents/petitioners/defendants without filing a petition under
Section 5 of the Limitation Act has erroneously filed the present petition so as to set aside the decree dated
3.12.2004 and the trial Court has rightly found that the present petition is barred by limitation. But the First
Appellate Court without considering the provisions of Order IX, Rule 13 of the Code of Civil Procedure as
well as the Article 123 of the Limitation Act has erroneously allowed the petition and further, the reason
mentioned in the petition has not been proved by the respondents/petitioners/defendants and therefore,
the judgment passed by the First Appellate Court is liable to be interfered with.
12. Per contra, the learned counsel appearing for the respondents/ petitioners/defendants has
repeatedly contended that the Original Suit No.334 of 2001 has been decreed in ex parte on 3.12.2004 and
the counsel who appeared for the respondents/petitioners/defendants has subsequently changed
his practice from Dindigul to Kodaikanal and due to that the respondents/ petitioners/defendants have
not been able to meet him and only on 5.9.2005, the respondents/petitioners/defendants have known the ex
parte decree and within thirty days from 5.9.2005, the present petition has been filed and the
respondents/petitioners/defendants are entitled to invoke the second part of the provision of Article 123 of
the Limitation Act and the present petition is not barred by limitation and further, some leniency would be
shown to the respondents/petitioners/defendants and only on that basis, the First Appellate Court
has allowed the petition and therefore, the judgment passed by the First Appellate Court needs no
interference.
13. The specific contention urged on the side of the respondents/petitioners/defendants is that their
counsel has subsequently shifted his practice from Dindigul to Kodaikanal. It has already been pointed out
that the party who invokes the Provision of Order IX, Rule 13 of the Code of Civil Procedure, must show
sufficient cause so as to get the relief sought for. Therefore, a primordial duty is cast upon the
respondents/petitioners/defendants to prove that their counsel has subsequently changed his place of
practice from Dindigul to Kodaikanal. But to utter dismay, no oral evidence has been let in on the side of
the respondents/petitioners/defendants in the trial Court and further, the counsel who made his
appearance in the trial Court has not been examined, so as to prove that he has subsequently changed his
place of practice from Dindigul to Kodaikanal. Therefore, the reason given in the petition has not been
proved by the respondents/petitioners/defendants. On that score alone, the present petition is liable to be
thrown out.
14. Now, the Court has to analyse the circumstances under which the present petition has been filed.
The present petition has been filed by invoking the second part of Article 123 of the Limitation Act. As per
first part, a petition to set aside the ex parte decree or to rehear an appeal decreed or heard ex parte should
be filed within thirty days from the date of decree. As per second part, if the summons or notice has not
been duly served a petition to set aside the ex parte decree can be filed within thirty days from the date of
knowledge. In the instant case, it is not the contention of the respondents/petitioners/defendants that they
have not been duly served with summons or notice. It is not an adulation to say that in Original Suit No.334
of 2001, the respondents/petitioners/defendants have made their appearance through the said Advocate viz.,
B.B.M.Salim. It is also an admitted fact that the said Advocate has cross- examined the witnesses who
have been examined on the side of the revision petitioner/respondent/plaintiff. Therefore, the
respondents/petitioners/defendants cannot say that they have not been duly served with summons or notice
and they cannot invoke the second part of the provision of Article 123 of the Limitation Act.
Therefore, a separate petition under Section 5 of the Limitation Act ought to have been filed by the
respondents/petitioners/defendants.
15. It is an everlasting principle of law that Article 123 of the Limitation Act must be read with
Section 3 of the said Act, which renders it imperative that an application made after the prescribed period
shall be dismissed. Although limitation has not been set up as defence and the Court cannot by excess
of its inherent power extend the period of limitation on any grounds of equity and justice and override the
provisions of the said Act.
16. As pointed out earlier, the respondents/petitioners/defendants cannot invoke the second part
of the provision of Article 123 of the Limitation Act and a petition under Section 5 of the Limitation Act
should be filed by them. But they have not done it. Therefore, it is pellucid that the present petition is
clearly barred by limitation.
17. The trial Court after considering the correct legal position has rightly dismissed the petition.
But the First Appellate Court without looking into the mandatory provision of Order IX, Rule 13 of the
Code of Civil Procedure as well as Article 123 of the Limitation Act has erroneously allowed the petition.
It is an acknowledged principle of law that the Court should follow the existing law and its mandates
scrupulously without taking any deviation. If the Court tries to limber the existing law, definitely it would
create catalytic effects. The First Appellate Court has allowed the present petition without looking into its
maintainability as well as limitation and therefore, the judgment passed by the First Appellate Court has to
be set aside.
18. The learned counsel appearing for the respondents/petitioners/ defendants has relied upon
the following decisions in support of his contention.
19. The first and foremost decision is reported in 1998 (1) LW 9 (Malkiar Singh and another v.
Joginder Singh and others), wherein the Apex Court has held that—
 “In this case, counsel for the appellants (defendants) pleaded “no instructions” but the Court
did not issue any notice to the appellants, who were admittedly not present on the date when their
counsel reported no instructions in the Court. It is nobody’s case that the counsel
informed them after he had reported no instructions to the Court. The appellants only came to
know about the order dated 18.11.1991 and the ex parte decree dated 8.2.1992 when they
approached their counsel on 6.6.1992. It was within four days thereafter that the appellants filed
an application under Order IX, Rule 13 of the Code of Civil Procedure for setting aside the order
dated 18.11.1991 and the decree dated 8.2.1992. The appellants in their application clearly
pleaded that they were neither careless nor negligent and as soon as they learnt about the ex
parte decree dated 8.2.1992 and the order dated 18.11.1991, they filed the application to set aside
the order and ex parte decree. A perusal of the record also reveals that the appellants were neither
careless nor negligent in defending the suit. They had engaged a counsel and were following the
proceedings. In this fact situation, the trial Court, which had admittedly not issued any notice to
the appellants after their counsel had reported no instructions, should have, in the interest of
justice, allowed that application and proceeded in the case from the stage when the counsel
reported no instructions. The appellants cannot, in the facts and circumstances of the case, be said
to be at fault and they should not suffer.”
20. The second decision is reported in 1993 Supp. (3) SCC 256 (Tahil Ram Issardas Sadarangani
and others v. Ramchand Issadras Sadarangani and another), wherein also the Apex Court has held that
—
“the concerned counsel has withdrawn his appearance and a fresh notice ought to have been
sent to the parties.”
21. The third decision is reported in 2000 (1) LW 723 [(1) Vasu Thevar. (2) Veerapandiyan, (3)
Gnanam, (4) Bose, (5) Thangalakshmi v. (1) Rukmani Ammali, (2) Rajeswaran], wherein this Court has
held that—
“When the concerned counsel has reported no instruction and the Court should give fresh notice to
the parties.”
22. The fourth decision is reported in 2001 (6) SCC 176 (M.K.Prasad v. P.
Arumugam), wherein the Apex Court has held that—
“Delay of 554 days where Advocate of appellant-defendant had withdrawn from the case after
framing of issues, owing to death of his son, and appellant had no information till he received
notice regarding execution proceedings and the suit had been decreed ex parte by an unreasoned
judgment, held, ought to have been condoned.”
23. In the instant case, as narrated earlier, the counsel who made his appearance for the
respondents/petitioners/defendants has not withdrawn his vakalat nor reported “no instruction”. The only
reason given in the petition is that their counsel has subsequently changed his place of practice from
Dindigul to Kodaikanal and the same has also not been proved. In all the decisions referred to earlier, it
has been clearly stated that if the counsel on either party reports no instruction, a primordial duty is cast
upon the Court to issue fresh notice to the concerned party. But the said situation has not arisen in the
present case. Therefore, it is needless to say that the decisions referred to earlier cannot be attuned to
the facts and circumstances of the present case.
24. In view of the foregoing narration of both the factual and legal premise, it is very clear that the
argument advanced by the learned counsel appearing for the revision petitioner/respondent/plaintiff is
really having subsisting force and whereas the argument advanced by the learned counsel appearing for the
respondents/petitioners/defendants is sans merit.
25. In fine, this civil revision petition is allowed with costs. The judgment passed in Civil
Miscellaneous Appeal No.33 of 2005 by the Principal District Court, Dindigul is set aside and the order
passed in Interlocutory Application No.358 of 2005 in Original Suit No.334 of 2001 by the Additional Sub-
Court, Dindigul is restored, the connected Miscellaneous Petition No.1 of 2006 is closed.
Revision allowed.
 [2008 (1) TNCJ 102 (Mad) (MB)]
MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE :
A. C. ARUMUGAPERUMAL ADITYAN, J.
THE EXECUTIVE ENGINEER AND ANOTHER ….Petitioners
Versus
S. JEGATHEESAN AND OTHERS ….Respondents
[Second Appeal (MD) Nos.453 and 513 of 2007 and M. P. Nos.1 and 1 of 2007, decided on 27th September,
2007]
Indian Electricity Act, 1910—Sections 12 (2) and 185—Electricity Supply Act, 1948, Section
42—Installation of Electric Poles in land of respondent by appellant electricity department—No
permission obtained by owner of land nor prior information given—Suit for permanent
injunction and removal of poles decreed by Trial Court and first Appellate Court—Legality of—
Held, it is mandatory on part of appellants to get prior permission from owner of land before
erecting electric poles—Hence order of Courts below not call for inference— Appeal dismissed.
(Paras 16 and 19)
Case law.—1994 Writ LR 445-distinguished; 2001 LW 556; AIR 1999 Mad 365—referred.
Counsel.—Mr. R. Murali in both appeals for the petitioner, Mr. P. Jeyapal in both appeals for the
respondents.
JUDGMENT
A.C. ARUMUGAPERUMAL ADITYAN, J.—The defendants 4 and 5 in O.S.No.384 of 2004 who had
lost their defence before the Courts below are the appellants herein. The plaintiff had filed the suit in
O.S.No.384 of 2004 before the Court of Principal District Munsif, Valliyoor for mandatory injunction
against the defendants/the appellants herein, the Electricity Board represented by its Executive
Engineer and the Superintendent Engineer and for a direction to remove the Electricity poles installed in his
land in S.No.2/2A measuring 6.52.08 hectares and also in S.No.2/2C measuring 0.09.08 hectares at
Kudankulam village. According to the plaintiff, the defendants 4 and 5 /the appellants herein without the
knowledge of the plaintiff had erected the electricity poles in his land i.e., in the above said survey number
property at Kudangulam which was objected to by the plaintiff through his notice dated 23.04.2004 and
28.04.2004 to the defendants 1, 2 and 3 respectively. Since the plaintiff is a practicing advocate at
Tirunelveli which is about 60 kms away from the place of occurrence, he came to know about the
installation of the electrical post in survey number property at Kudankulam only in the month of April
2004. On enquiry, he came to know that the electrical poles were installed in the month of February 2004
itself. Since the representations made by the Plaintiff to the defendants proved futile, he had approached
the Court.
2. The defendants 1 to 3 in the joint written statement in O.S.No.384 of 2004 would contend that the
third defendant after purchasing the land, had handed over the same to the first and the second defendants.
The first defendant purchased the property in which the Wind Mill was erected by the third
defendant under a valid sale deed. The first defendant got no objection certificate for installation of wind
mill and electric genearation on application to the defendants 4 and 5. The defendants 4 and 5 after
perusing the records making a spot inspection and have accorded sanction and accordingly, the
electric poles were erected and electric wires are drawn as per the Departmental norms. The electric poles
and the stay wires were erected by the defendants 4 and 5 and they are in exclusive possession and control.
The defendants 1 to 3 are unnecessary parties to the suit and they have no control over the defendants
4 and 5.
3. The defendants 4 and 5 have filed a joint written statement contending that the electric poles were
erected during the month of February, 2004 but the suit was filed belatedly. The plaintiff was allowed to
erect the poles at the first instance and it is shown from the plaintiff’s act of approach to the defendants 1 to
3 several times even after the completion of erection of poles. The plaintiff has filed the suit with a huge
delay after the misunderstanding developed in due course between them. The erection of poles and wires
are the part and parcel of the sanctioned project of the Tamilnadu Electricity Board as per Section 42 of
Electric Supply Act read with Section 12 of the Indian Electricity Act. As per the Act, the Department
need not obtain previous permission from the owner of the land in erecting the electric poles. The
defendant’s act is approved by the Madras High Court’s decision reported in 2001 LW 556 and AIR 1999
Mad 365. The action of the Boards is in their interest of public to have undisturbed power supply, and
hence the Board cannot be prevented by injunction. There is no cause of action. Hence, the suit is liable to
be dismissed.
4. The sixth defendant in his written statement would contend that as per the partition deed, the
plaintiff is the owner of the plaint schedule property.
5. The defendants 4 and 5 in O.S.No.406 of 2004 who had lost their defence before the Courts
below are the appellants herein. According to the plaintiff, he is the owner of the Survey Number 2/2 along
with his son sixth defendant measuring 6.52.08 acres in Survey No.2/2A and 0.09.08 hectares in Survey
No.2/2C. The plaintiff is in possession and enjoyment of the plaint schedule property along with his son
sixth defendant. A joint patta has been issued in favour of the plaintiff and his son sixth defendant. The
defendants 1 to 3 have installed a Wind Mill over the plaint schedule property. The defendants 4 and 5 have
trespassed into the land of the plaintiff and have erected an electric poles in the plaint schedule property
without obtaining prior permission from the plaintiff. The plaintiff had issued notice to the defendants 1
and 2 on 23.04.2004 and to the third defendant on 28.04.2004. Since the plaintiff is a practicing advocate
at Tirunelveli which is about 60 Kms away from the place of occurrence he came to know about
erection of the poles only in the month of April, 2004. On enquiry, the plaintiff came to know that the
electric poles were installed in the month of February, 2004 itself. Inspite of several personal request
made by the plaintiff to the defendants, they have refused to accede to the request. Hence, the plaintiff filed
the suit for permanent injunction and for mandatory injunction.
6. The defendants 1 to 3 have filed the joint written statement contending that the third defendant is
the Company which used to purchase land brokers or from the owners of the property. The defendants 1
and 2 are entrusted with the duty of the erection of the Wind Mill when purchased the land and erected the
Wind Mill at the request of the customer company. The defendants 1 to 3 had no occasion to trespass into
the adjacent land at the time when erecting wind mill and there is no need to trespass into the land. The
electric poles and stay wires are erected by the defendants 4 and 5 and they are in exclusive possession and
control of the defendants 4 and 5. The defendants 1 to 3 are unnecessary parties to the suit.
7. The defendants 4 and 5 in the joint written statement would contend that after the suit has been
filed by the plaintiff he had allowed the defendants to erect the poles and due to subsequent
misunderstanding developed between the plaintiff and the defendants 4 and 5, the plaintiff had rushed to
the Court without any basis. The erection of poles and wires are the part and parcel of the sanctioned
project of the Tamilnadu Electricity Board as per Section 42 of Electric Supply Act r/w 12 of the
Indian Electricity Act. As per the Act, the Department need not obtain previous permission from the owner
of the land in erecting the electric poles. The defendant’s act is approved by the Madras High Court
decision reported in 2001 LW 556 and AIR 1999 Mad 365. The action of the Boards is in their interest of
public to have undisturbed power supply, and hence the Board cannot be prevented by injunction. There is
no cause of action. Hence, the suit is liable to be dismissed.
8. The sixth defendant in his written statement would contend that as per the partition deed, the
plaintiff is the owner of the plaint schedule property.
9. After framing the issues, the learned trial Judge had conducted a joint trial in respect of
O.S.No.384 of 2004 and O.S.No.406 of 2004 and delivered a common judgment. On the side of the
plaintiff, P.W.1 was examined and Exs. A-1 to 11 were marked. On the side of the defendants, D.Ws.1
and 2 were examined and Exs.B-1 to B-3 were marked. A Commissioner was appointed for the purpose
of noting the physical features of the property. The learned Commissioner had visited the suit property
and filed Exs.C-1 and C-3 reports and Exs.C-2 and C-4 plans.
10. After going through the evidence both oral and documentary, the learned trial Judge had decreed
both the suits against the defendants 4 and 5 who are the appellants herein and dismissed the suit against
the other defendants.
11. Aggrieved by the findings of the learned trial Judge, the defendants 4 and 5 had preferred
A.S.Nos.261 of 2006 and A.S.No.260 of 2004 against the judgment and decree of the learned trial Judge in
O.S.Nos.384 of 2004 and 406 of 2004. After giving due deliberations to the submissions made by the
learned counsel appearing for the appellants as well as the respondents and after scanning the evidence
let in before the trial Court, the learned First Appellate Judge had dismissed both the appeals which
necessitated the defendants 4 and 5 in O.S. Nos. 384 of 2004 and 406 of 2004 to prefer these second
appeals.
12. Heard Mr.R.Murali the learned counsel appearing for the appellants and Mr.P.Jeyapal the
learned counsel appearing for the respondents and considered their respective submissions.
13. Point:—According to the learned counsel appearing for the appellants, the Electricity
Department is competent to erect electric poles in a private land for the benefit of the public in order to
provide electricity as per Section 42 of Electricity Supply Act, 1948, which reads as follows:—
“42. Powers to Board for placing wires, poles, etc.—Notwithstanding anything contained in
Sections 12 to 16 and 18 and 19 of the Indian Electricity Act, 1910 (9 of 1910), but
without prejudice to the requirements of Section 17 of that Act where provision in such
behalf is made in a sanctioned scheme, the Board shall have, for the placing of any wires,
poles, wall-brackets, stays, apparatus and appliances for the transmission and distribution
of electricity, or for the transmission of telegraphic or telegraphic communications
necessary for the proper co-ordination of the works of the Board, all the powers which
the telegraph authority possesses under Part III of the Indian Telegraph Act, 1885 (13 of
1885) with regard to a telegraph established or maintained by the Government or to be so
established or maintained:
Provided that where a sanctioned scheme does not make such provision as aforesaid, all
the provision of Sections 12 to 19 of the first-mentioned Act shall apply to the works of
the Board.
(2) A Generating Company may, for the placing of wires, poles, wall-brackets, stays,
apparatus and appliances for the transmission of electricity, or for the transmission of
telegraphic or telephonic communications necessary for the proper co-
ordination of the works of the Generating Company, exercise all or any of the powers
which the Board may exercise under sub-section (1) subject to the conditions
referred to therein.”
14. Per contra, the learned counsel for the respondents would contend that the appellants have not
obtained prior permission from the respondent who is the land owner in whose land the appellants have
erected poles, which is violation of Section 12(2) of the Indian Electricity Act, 1910 which reads as
follows:—
“(2) Nothing contained in sub-section (1) shall be deemed to authorise or empower a licensee,
without the consent of the local authority or of the (owner or occupier) concerned,
as the case may be, to lay down or place any electric supply-line, or other work in,
through or against any building or on, over or under any land not dedicated to public use
whereon, whereover or whereunder any electric supply or work has not already been
lawfully laid down or placed by such licensee:
Provided that any support of an (overhead line) or any stay or strut required for the sole
purpose of securing in position any support of an (overhead line) may be fixed on any
building or land or, having been so fixed, may be altered, notwithstanding the objection
of the owner or occupier of such building or land, if the District Magistrate or, in a
Presidency town, the Commissioner of Police by order in writing so directs:
Provided, also, that if at any time the owner or occupier of any building or land on which
any such support, stay or strut has been fixed shows sufficient case, the District
Magistrate or, in a Presidency town, the Commissioner of Police may order in writing
direct any such support, stay or strut to be removed or altered.”
15. It has been contended on behalf of the learned counsel appearing for the appellants that the
Indian Electricity Act has been amended and as per Section 164 of the Central Act 36 of 2003 which came
th
into force from 10 June, 2003, there is no necessity for the Electricity Department to get prior
permission from the land owner for the purpose of telephonic or telegraphic communication. Section 164 of
the Electricity Act Central 2003 will say that—
 “164. Exercise of powers or Telegraph Authority in certain cases.—The Appropriate
Government may, by order in writing, for the placing of electric lines or electrical plant
for the transmission of electricity or for the purpose of telephonic or telegraphic
communications necessary for the proper co-ordination of works, confer upon any public
officer, licensee or any other person engaged in the business of supplying electricity
under this Act, subject to such conditions and restrictions, if any, as the Appropriate
Government may think fit to impose and to the provision of the Indian Telegraph
Act,1885 (13 of 1885), any of the powers which the telegraph authority possesses under
the Act with respect to the placing of telegraph lines and posts for the purposes of a
telegraph established or maintained, by the Government or to be so established or
maintained.”
But the learned counsel for the respondents Mr.P.Jeyapal would contend that as per Section 185 of
the Electricity Act, Sections 12 to 18 of the Indian Electricity Act, 1910 and the rules made thereunder will
stand unaltered because there is no rules under Sections 67 to 69 of the Electricity Act, 2003 has been
formulated. As per the repeal clause under Section 185 which provides :
“185. Repeal and saving.—(1) Save as otherwise provided in this Act, the Indian Electricity
Act, 1910 (9 of 1910), the Electricity (Supply) Act,1948 (54 of 1948) and the
Electricity Regulatory Commission Act,1998 (14 of 1998) are hereby repealed.
(2) Notwithstanding such repeal,—
(a) anything done or any action taken or purported to have been done or taken including any
rule, notification, inspection, order or notice made or issued or any appointment,
confirmation or declaration made or any licence, permission, authorisation or exemption
granted or any document or instrument executed or any direction given under the
repealed laws shall, in so far as it is not inconsistent with the provision of this Act, be
deemed to have been done or taken under the corresponding provisions of this Act;
(b) the provisions contained in Sections 12 to 18 of the Indian Electricity Act,1910 (9 of
1910) and rules made thereunder shall have effect until the rules under Sections 67 to 69
of this Act are made;
Relying on the above said provision, the learned counsel would contend that—
“Until rules have been made under Sections 67 to 69 of the Electricity Act, 2003, the provisions
contained in Sections 12 to 18 of the Indian Electricity Act, 1910 and the rules made thereunder
shall be in force. Similarly, the Indian Electricity Rules,1956 shall continue to be in force till the
regulations have been made by the Central Electricity Authority under Section 53 of the Electricity
Act, 2003. All rules made under Section 69(1) of the Electricity Act, 1948 shall continue to be in
force until such rules are rescinded or modified.”
16. So as per Section 12 of the Indian Electricity Act, 1910, it is mandatory on the part of the
appellants to get prior permission from the owner of the land before erecting the electric poles in his land
for the purpose of providing electric supply to the public which has not been done so in this case. A
vain attempt was made by the learned counsel appearing for the appellant that it is open to the respondent
to move the District Magistrate as per the proviso to Section 12(2) of the Indian Electricity Act, 1910 to get
compensation for the act done by the appellants. But, there is no embargo or impediment for the
plaintiff/the respondent to approach the Civil Court for getting civil remedy of mandatory injunction to
remove the same. The choice is open to the respondent either to approach the Civil Court for
appropriate civil remedy or to approach the District Magistrate to get compensation. It is not open to the
appellants the electricity Department to direct the respondent to approach the District Magistrate for getting
compensation when there is civil remedy is available to him through the Court by way of injunction.
17. The learned counsel for the appellant relying on 1994 Writ L.R. 445 (M.Nithyanandham and 2
others v. The Chairman, Tamilnadu Electricity Board, Madras-2 and others), contended that it is not
mandatory on the part of the Electricity Department to erect the poles before giving any notice to the owner
of the land which the electric poles are intended to be installed or planted. The writ petitioner in the said
ratio had challenged the act of Taminadu Electricity Board in erecting high rise towers, affixing the
electricity lines in between the high rise towers and energising the same on the ground that the said act is
an act to trespass on the private part of the persons like the petitioner and it will amount to a clear act of
trespass and actionable nuisance besides being highly dangerous to the lives and limbs of persons entering
on the property and also prospective buyers of the lands. While dismissing the writ of certiorari
mandamus, this Court had held that it is not obligatory on the part of the competent authority to issue
prior notice before exercising power under the provision of the Act. It will be proper and certainly
desirable that the owner or occupier should be informed before the acts are done on his property. It is
conceivable when the parties are so informed the exact location and the alignment of the line can be
settled without resistance or obstruction by mutual understanding and discussion.
18. The said judgment was delivered in 1994 i.e., before the Electricity Act, 2003 came into force.
There was no auction for the learned Judge who had delivered the said judgment to consider Section 12(2)
of the Electricity Act, 1910 and Section 185 of the Electricity Act, 2003 which specifically provided that
unless rules under Sections 67 to 69 of the Electricity Act, 2003 are framed, the provision contained in
Sections 12 to 18 of the Indian Electricity Act, 1910 shall remain in force. So, the above said ratio
dicedendi is not applicable to the present facts of the case.
19. The learned counsel for the appellant placing his reliance on an unreported judgment in
S.A.No.1566 of 1993 dated 29.03.2007. A reading of the judgment will go to show that the learned Judge
while dealing with the provision under Section 12(2) of the old Act, 1910, has observed that the
appellant had not raised his little finger against the act of the Electricity Department in erecting the poles
in his land. The learned Judge has observed that since he has not made any objection at the time of erection
of poles he cannot raise any objection afterwards. But that is not the case herein. Admittedly, the
plaintiff/the respondent is a practicing advocate at Tirunelveli whereas the appellants have erected the pole
in his land at Kudankulam which is situate 60 Kms away from Tirunelveli. According to the respondent/the
plaintiff he came to know about the erection of pole in his land only in the month of April, 2004, at the time
when he visited his village during summer holidays of the Court. According to his information, the poles
were erected in February, 2004 itself. Thereafter, he approached the Court. Further, in S.A.No.1566 of
1993, there was no occasion for the learned Judge to consider the fate of Section 12(2) of the Indian
Electricity Act, 1910 after the amending the Act of 2003 and the repeal clause of Section 185 of Electricity
Act, 2003 and its impact was also not considered in the said judgment. So, I am of the view that the
decision in S.A.No.1566 of 1993 differs from the facts on the case on hand. Hence, I am of the view that
there is no substantial question of law involved in these second appeals for admission and there is no
material on record to warrant any interference to the findings of the learned First Appellate Judge who had
concurred with the findings of the learned trial Judge in coming to the conclusion that the plaintiff is
entitled to the relief asked for in the plaint. It is open to the respondent/the plaintiff to consider whether he
has to approach the District Magistrate for compensation taking into consideration the fact that the electric
poles have been installed in his land only for the public purpose. At this juncture, the learned counsel
appearing for the appellants would contend that the relief given to the plaintiff is being one of the
mandatory injunction time may be granted. Some breathing time i.e., one month is granted to the
appellants for removal of the electrical posts from the plaintiff’s land.
20. In fine, both the second appeals are dismissed even before admission confirming the findings of
the learned First Appellate Judge in A.S.No.260 of 2006 and A.S.No.264 of 2006 on the file of the
Court of the Principal Subordinate Judge, Tirunelveli. No costs. Consequently, connected miscellaneous
petitions are closed.
Appeals dismissed.

[2008 (1) TNCJ 109 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE :
A. C. ARUMUGAPERUMAL ADITYAN, J.
MUTHU @ MUTHUPERUMAL SERVAI …..Petitioner
Versus
CHINNA PONNU AND OTHERS ....Respondents
 [S. A. (MD) No.465 of 2003, decided on 21st September, 2007]
Tamil Nadu Agriculturist Record of Tenancy Rights Act 10 of 1969—Sections 9 and 16 (A)—
Civil Procedure Code, 1908, Section 100—Second appeal—Suit for redemption of mortgage and
recovery of possession—Plaintiff took loan of Rs.10,000/- and executed a registered simple
mortgage—On same day plaintiff felt that it is difficult for her to pay interest and requested
defendant to take possession, cultivate same and appropriate produce realized in lieu of interest—
Later defendant’s name registered as cultivating tenants in records of tenancy rights—Suit
decreed by Trial Court and upheld by first appellate Court—Legality of— Held, a civil suit for
recovery of possession from cultivating tenant not maintainable hence Civil Court not
empowered to dispossess defendant. (Para 7 (i))
Case law.—1992 (1) LW 358; 2002 (2) LW 751; AIR 1980 Mad 180; 98 LW 536; 1999 (3) LW 316;
1998 (3) LW 332; 1963 (3) SCC 79—referred.
Counsel.—Mr. V. Sitharanjandas for the petitioner, Mr. K. Sekar for the respondent.
JUDGMENT
A.C. ARUMUGAPERUMAL ADITYAN, J.—This appeal has been preferred against the judgment in
A.S.No.67 of 2001 on the file of the Principal Subordinate Judge, Madurai, which was preferred against the
judgment in O.S.No.586 of 1991 on the file of the District Munsif, Madurai Taluk. The plaintiff in
O.S.No.586 of 1991 has filed the suit for redemption of mortgage and recovery of possession and for mesne
profits.
2. According to the plaintiffs, the suit property was allotted to the share of the first plaintiff in the
partition held between herself and her brothers including the defendant, who is her step-brother. The first
plaintiff was doing personal cultivation in the suit property. She approached the defendant for a loan of
Rs.10,000/- to meet the agricultural expenses. The first plaintiff executed a registered simple mortgage
deed on 5.8.1987 for herself and on behalf of minor plaintiffs 2 to 5, for Rs.10,000/- in favour of the
defendant. The agreed rate of interest is 12% p.a. The redemption period is 3 years. After the transaction,
she felt on the same day that it is difficult for her to pay interest every year and hence, requested the
defendant to take possession, cultivate the same and to appropriate the produce realized in lieu of the
interest payable to the mortgage amount. There was an agreement entered into between the first plaintiff
and the defendant on 5.8.1987. The defendant is a permissive occupier and he is entitled to be in
possession till the expiry of the period of redemption, the 1 st plaintiff offered Rs.10,000/- in cash and
requested the defendant to suffer redemption. The defendant with intent to enrich himself refused to
receive the amount and sent a false notice. The 1st plaintiff received the same and suitably replied on
12.8.1991. Now, the defendants 2 to 5 are majors. In the notice the defendant would mention that he is in
possession of the suit property even prior to 5.8.1987. The plaintiff has deposited Rs.10,000/- towards
mortgage money. Hence, the suit for redemption of mortgage dated 5.8.1987 and for recovery of
possession.
3. In the written statement the defendant would contend that the plaintiff had secured the property in
the family partition. The defendant became tenant of the property under the 1 st plaintiff since the date of
partition. As per the lease agreement the 1st plaintiff agreed to receive 1/3rd of produce as rent. Since the
plaintiff happens to be the sister of the defendant, they have not insisted for any written agreement or any
receipt. The 1st plaintiff has borrowed a sum of Rs.10,000/- from the defendant on 5.8.1987 and
agreed to adjust the rent towards interest. Thereafter, the 1 st plaintiff had borrowed another sum of
Rs.10,000/- from the defendant in the presence of two witnesses and requested the defendant to adjust the
rent towards interest. The defendant has made improvements at the cost of Rs.10,000/- by leveling the land
and made fit for cultivation. The 1st plaintiff subsequently has taken steps to dispose of the property. The
defendant has sent a lawyer notice dated 20.5.1991. The defendant is not doing any personal cultivation in
the suit property. The plaintiffs cannot take advantage of the mortgage deed and the agreement
regarding the interest and thereby denying the tenancy right of the defendant. The defendant has filed
T.R.No.6 of 91 before the Record Officer, Vadipatti to record his name as cultivating tenant which was
allowed and the defendants name has been registered as cultivating tenants in the records of tenancy rights.
The 1st plaintiff is liable to pay a sum of Rs.20,000/- as loan amount and Rs.10,000/- towards improvement
made in the suit property. All the improvements have been made only with the knowledge and permission
of the 1st plaintiff. The 1st plaintiff is not entitled to the relief of redemption of mortgage unless the entire
amount of Rs.20,000/- is paid to him. The plaintiff is not entitled to recovery of possession as the defendant
is in possession of the suit property as cultivating tenant. The 1 st plaintiff is not entitled to mesne profits as
she can claim 1/3rd waram after the redemption of mortgage as the defendant is in possession of the suit
property as cultivating tenant. The suit as framed is not maintainable and the same is liable to be
dismissed.
4. On the above pleadings the learned trial Judge has framed four issues and one additional issue for
trial. Before the trial Court, the first plaintiff has examined herself as P.W.1 and exhibited Ex.A-1 to Ex.A-
4. The defendant has examined himself as D.W.1 and exhibited Ex.B-1 to Ex.B-5. The learned trial Judge,
after giving due consideration to the oral and documentary evidence let in before him, had come to the
conclusion that the plaintiffs are entitled to the relief as prayed for in the plaint and accordingly, decreed
the suit with costs, relegating the question of mesne profits to a separate proceedings under Order XX, Rule
12 of CPC. Aggrieved by the findings of the learned trial Judge, the defendant preferred an appeal in
A.S.No.67 of 2001 before the Subordinate Judge, Madurai. The learned first appellate Judge, after giving
due deliberations to the submissions made by the learned counsel appearing on either side and after
scanning the evidence both oral and documentary, has come to the conclusion that there is no ground to
interfere with the findings of the learned trial Judge and accordingly, dismissed the appeal thereby
confirming the decree and judgment of the learned trial Judge, which necessitated the defendant to
approach this Court by way of this second appeal.
5. Heard the learned counsel Mr.V.Sitharanjandas appearing for the appellant and the learned
counsel Mr.K.Sekar appearing for the respondents and considered their rival submissions.
6. The substantial questions of law involved in this second appeal are as follows:—
(a) Whether the Civil Court has got jurisdiction to set aside, cancel, modify or over rule
the order of Record Officer in recording the name of the cultivating tenant in the
records of tenancy rights when the same is barred under Section 16(A) of the Tamilnadu
Agriculturist Record of Tenancy Rights Act 10 of 1969?
(b) Whether the plaintiff is entitled to seek relief of both redemption and recovery of
possession especially when the defendant’s name is recorded as a cultivating tenant in the
Records of tenancy?
(c) Are not the Courts below as well as the plaintiff estopped from questioning the validity of
the order of the Record Officer and confirmed by the Appellate and Revisional Authority
and after the proceedings under Section 10 of CPC and grant of stay?
(d) Whether the Civil Court has got jurisdiction to sit over the order of the Record Officer
either as an appellate authority or Revisional authority when there is a bar under Section
16(A) of the Act 10 of 1969?
(e) Whether the Courts below are right in considering a document especially when the same
was declared as inadmissible in evidence for want of Stamp duty?
7. The Point.—7(a)The learned counsel for the appellant would contend that along with the second
appeal, the respondent tried to produce a document, but on the question of admissibility the said document
was not allowed to be received by this Court. Under such circumstances, the substantial question of law
‘Whether the Courts below are right in considering a document especially when the same was declared as
inadmissible in evidence for want of Stamp duty? can be considered, does not arise for consideration. The
other substantial question of laws revolve around the jurisdiction of the Civil Court for ordering delivery of
possession to the first plaintiff when there is a specific finding of the Revenue Court in favour of the
defendant declaring him as a cultivating tenant for the suit property. The learned counsel for the appellant
relying on Section 16(A) of the Tamilnadu Agriculturist Record of Tenancy Rights Act 10 of 1969 (herein
after referred to as ‘Act 10 of 1969’), which runs as follows:—
“No Civil Court shall have jurisdiction in respect of any matter which the record officer, the
District Collector or other officer or authority empowered by or under this Act has to determine
and no injunction shall be granted by any Court in respect of any action taken or to be taken by
 such officer or authority in pursuance of any action taken or to be taken by such officer or
authority in pursuance of any power conferred by or under this Act.”
Before the trial Court the defendant has produced Ex.B-1 order passed by the Record Officer in
T.R.No.6 of 1991 dated 24.6.1992 with the first plaintiff Chinna Ponnu as a respondent in the said
proceedings. Under Ex.B-1 the Record Officer declared the petitioner/the appellant herein as a cultivating
tenant for S.No.281/2 measuring 0.81.0 hectares, the plaint schedule property. Ex.B-3 is the order passed
by the Revenue Court in Appeal No.68 of 1992 preferred against Ex.B-1-order by the first plaintiff Chinna
Ponnu. The said appeal has been dismissed. The revision preferred against Ex.B-3-order by the first
plaintiff Chinna Ponnu before the Revenue Divisional Officer in Revision No.4 of 1995 also ended against
her as per the order in Revision No.4 of 1995 dated 31.9.1998 as seen from Ex.B-5.
7(b) The learned counsel for the respondent would challenge Ex.B-1- order on the ground that
the same is hit by lis pendens under Section 52 of the Transfer of Property Act, in my opinion will not be
applicable to Ex.B-1 proceedings because during the pendency of any suit in any Court any right to
immovable property is directly and specifically in question, the property cannot be transferred or otherwise
dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under
any decree or order which may be made therein, except under the authority of the Court and on such terms
as it may impose. The Explanation to Section 52 of the Transfer of Property Act would say that:—
“the pendency of a suit or proceeding shall be deemed to commence from the date of the
presentation or the plaint or the institution of the proceedings in the Court of competent
jurisdiction, and to continue until the suit or proceeding has been disposed off by a final decree
or order and complete satisfaction or discharge of such decree or order has been obtained, or has
become unobtainable by reason of the expiration of any period of limitation prescribed for the
execution thereof by any law for the time being in force.”
Admittedly in respect of the plaint schedule property while the suit was pending before the trial
Court, no documents was executed by the plaintiff in order to convey the right pertaining to that property
in favour of any other person. According to the plaintiff under a simple mortgage Ex.A-1 the suit
property was enjoyed by the defendant and it is in evidence that even though Ex.A-1 is a simple mortgage
to meet the cultivating expenses, the first plaintiff had borrowed Rs.10,000/- on one occasion and another
Rs.10,000/- on another occasion and handed over the possession to the defendant, who is none other than
her brother. The fact that the defendant had approached the Revenue Court under Ex.B-1 with an
application dated 26.8.1991 to record him as a cultivating tenant after filing of the suit on 1.7.1991, in
my opinion, will not be hit by Section 52 of the Transfer of Property Act. Under Ex.B-1 proceedings, the
defendant was recorded as a cultivating tenant for the suit property under the Act 10 of 1969. No right or
interest in respect of the suit property was transferred under Ex.B-1 proceedings to declare the same as hit
by the principles of lis pendens.
7(c) The learned counsel appearing for the appellant relying on 1992 (1) LW 358 (Nemichand v.
Onkar Lal), would contend that under Sections 108 and 61 of the Transfer of Property Act when a lease is
in subsistence in respect of a mortgaged property, the mortgagor is entitled only to a decree for redemption
but not for recovery of possession. The fact of the said case is that:
“ the respondent had leased his property to the appellant and during the period of the lease
respondent obtained a loan of Rs.5,000 and executed a deed of mortgage for 5 years; At the end of
5 years he sought back possession by redeeming the mortgage but appellant claimed his right to
continue in possession by virtue of his lease. The respondent approached the Court for
redemption.
All the Courts below have come to the conclusion that the appellant had surrendered his
possession as a lesee on his entering into a new relationship with the respondent in terms of the
deed of mortgage, and upon redemption of the mortgage, the appellant had no further right to
retain possession of the property.
In the second appeal it was held that the appellant had symbolically surrendered his possession
as a lessee, and no rent was, therefore, payable by him under the lease during the period of the
 mortgage, and on redemption of the mortgage, he had no further right or interest in the property
and was no longer entitled to retain possession of the same.
Differing from the said view of the lower Courts including the High Court, the Honourable Apex
Court held that the Courts below misconstrued the document to read that rent accrued during
the period of the mortgage and that there was a symbolic surrender of possession by the appellant
upon execution of the mortgage deed. This was not the correct position and it was a wrong reading
of the document resulting in an error of law. The words ‘there shall be no interest of amount to
you and no rent of the house. The interest of the amount and the rent of the house are equal’ to
show that both interest and rents accrued,but both being in equal sums, neither was payable. That
was an adjustment of one liability against another. In other words the relationship between the
parties as lessor and lessee subsisted. There was no merger of the lease and the mortgage. No
such merger could take place in law.”
In the case on hand also the admitted case of the first plaintiff is that after receiving Rs.20,000/-
from the defendant, the possession in respect of the suit property was handed over to the defendant. After
taking over the possession of the suit property, the defendant had approached the Revenue Court to declare
him as a cultivating tenant of the suit property and also obtained an order in his favour under Ex.B-1
recording him as the cultivating tenant for the plaint schedule property. The said order is still in force.
7(d) Under Section 9 of the Tamil Nadu Cultivating Tenants Protection Act, 1955, a civil suit for
recovery of possession from the cultivating tenant is not maintainable. For this proposition of law, the
learned counsel for the appellant would rely on 2002 (2) LW 751 (Kamalambal v. Rajalakshmi
Ammal). In the said case the plaintiff/mortgagor has laid a civil action for recovery of possession with the
pleadings that the mortgage has been redeemed,wherein the defence put forth by the appellant was that she
was entitled to statutory protection granted under the Tamil Nadu Cultivating Tenants Protection Act, 1955.
The defendant in the said case resisted the claim of the plaintiff on the ground that the Civil Court cannot
go into the question as to the validity of the order of the Record of Tenancy Officer recording the appellant
as a cultivating tenant and that the Civil Court cannot act as an appellate Authority against the order, but
only the Appellate Authority, as constituted under the Act 10/69 could exercise the jurisdiction as an
appellate forum. The trial Court decreed the suit. On appeal the findings of the trial Court was confirmed.
While disposing of the second appeal, following the decision of the Full Bench of this Court in AIR 1980
Mad 180 (Periathambi Goundan v. The District Revenue Officer, Coimbatore and others), this Court held
as follows:—
“It has to be necessarily found that the bar under Section 16-A of the Act is squarely applicable to
the facts and circumstances of the present case, since the present suit was filed by the respondent
long after the introduction of the aforesaid provision. Hence, in view of the express exclusion
of the Civil Court jurisdiction to determine whether a person is a cultivating tenant or not?, in the
instant case, both the Courts were in error in holding that the Civil Court has got jurisdiction to
determine the question and over-looking the express exclusion of the Civil Court jurisdiction
under Section 16-A of the said Act”
The learned counsel for the appellant for the same proposition of law relied on 98 LW 536
(S.Balasubramanian v. Shamsu Thalreez and others), wherein a Division Bench of this Court has held as
follows:—
“For instance, the statutory requirement for the preparation of a record under the Act is that the
land must have been let out for cultivation by a tenant. A controversy may arise whether the land
has been let for cultivation by a tenant at all. The question to be considered is, whether the
determination of that controversy is within the exclusive jurisdiction of the authorities functioning
under the Act so as to bar the jurisdiction of the Civil Court under Section 16-A. From the
language of Section 3(2) it cannot be stated that the determination of that controversy is
within the exclusive jurisdiction of the authorities functioning under the Act, though the
determination of that controversy is basis and fundamental to the exercise of the
jurisdiction by the Record Officer and the other authorities under the Act. The very object of the
Act is to provide for the preparation and maintenance of record of tenancy rights in respect of
agricultural lands and, therefore, if there is no tenancy in respect of a land, there is no question of
any further particulars being determined. This aspect is made clear even from the definition of the
expression ‘land owner’ occurring in Section 2(5) of the Act because according to the said
 definition, ‘land owner’ means the owner of the land let for cultivation by a tenant and includes
the heirs; assignees, or legal representatives of such owner or persons deriving rights through him.
Consequently, the controversy as to whether a particular piece of land has been let for cultivation
by a tenant or not is one constituting the jurisdictional issue which a Record Officer has to decide
before he can determine any other matter under the Act. But that controversy cannot be said to be
within the exclusive jurisdiction of the authorities functioning under he Act, because to hold so
will enable the statutory authorities to assume jurisdiction by erroneously deciding the
jurisdictional issue. If the controversy arises, the authorities functioning under the Act have
necessarily to decide the same, because a decision on that controversy alone will determine the
jurisdiction of the authorities functioning under the Act. If the decision is that the land has been let
out for cultivation by a tenant, then the Record Officer will have jurisdiction to determine the
further particulars provided for in Section 3(2) of the Act. If, on the other hand, the decision of the
controversy is that that land has not been let for cultivation by a tenant, there is no question of
there being any tenancy rights in respect of the said land and consequently, there is no question of
the Record Officer ascertaining or determining any further particulars in this behalf.
Therefore, if such controversy arises, that controversy cannot be said to be within the exclusive
jurisdiction of the authorities functioning under the Act, and any determination of that controversy
by the authorities can be said to be only incidental to the assumption of jurisdiction by the
authorities under the Act. Subject to this qualification, it can be held that once the Record Officer
or any other authority functioning under the Act has come to the conclusion that the land has been
let for cultivation by a tenant, the matter provided for in Section 3(2) have to be determined by
the Record Officer, or other authority functioning under the Act, and to that extent the jurisdiction
of the civil Court is barred under Section 16-A of the Act.”
7(e) Relying on the decision in 1999(3) LW 316 (Cheriyan Sosamma & others v. Sundaressan
Pillai Saraswathy Amma & others), the learned counsel for the appellant would contend that even after the
redemption of the mortgage the lessee has right to continue in possession as a cultivating tenant. The
relevant observation in the above said dictum is that :—
“This Court, in a series of cases has concluded the question by holding that the question whether
upon redemption of usufructuary mortgage a tenant-mortgagee was required to deliver actual or
physical possession of the mortgage property to the lessor-mortgagor depends upon the intention
of the parties at the time of the execution of the mortgage deed. There is no automatic merger of
the interest of a lessee with that of a mortgagee when the same person is the lessee as well as the
mortgagee, in the absence of proof of surrender of the lease. Unless there is merger of both rights
on redemption of the mortgage, the plaintiff is not entitled to recover physical possession of the
property. The right of lessee to continue in possession would survive after redemption.”
7(f) Per contra, the learned counsel for the respondent relying on 1998(3) LW 332 (Kasilinga
Padayachi v. Kaliayaperumal Padayachi and 2 others), would contend that since the defendant had
obtained Ex.B-1 during the pendency of the suit, his possession cannot be protected since the same is hit by
Section 52 of the Transfer of Property Act. As I have discussed about this a point in the previous
paragraphs as to the fact that Ex.B-1-order was not a fraudulent or collusive order to be discredited. In the
ratio relied on by the learned counsel for the respondent in 1998(3) LW 332, it has been held by this Court
that on the basis of mere entry in the tenancy record which were brought about fraudulently and
collusively, cannot override the legitimate rights of the parties as would flow from actual transactions
between the parties.
7(g) A perusal of Ex.B-1-order in the case on hand would clearly go to show that the first plaintiff
in the array of parties, the defendant had recorded himself as a cultivating tenant to the plaint schedule
property. The appeal as well as the revision taken against Ex.B-1-order by the first plaintiff ended in failure
as seen from Ex.B-3 and Ex.B-5. Under such circumstances, it cannot be said that Ex.B-1 was obtained by
the defendant fraudulently or collusively. So the facts of the case in 1998(3) LW 332 will not be applicable
to the present facts of the case.
7(h) Relying on 1963(3) SCC 79 (The All India Film Corporation Ltd., and others v. Sri Raja Gyan
Nath and others), learned counsel for the respondent would contend that the termination of the mortgagee’s
interest terminated the relationship of the landlord and tenant and it could not, in the circumstances, be said
to run with the land. There being no landlord and no tenant, the provisions of the Rent Restriction Act
could not apply any further. Nor could it be said that when the mortgagor cancelled the rent note and
authorised the mortgagee to find any other tenant, the intention was to allow expressly a tenancy beyond
the term of the mortgage. Relying on the above dictum, the learned counsel would contend that since the
first plaintiff has redeemed the mortgage, the defendant cannot restrict the claim of the plaintiff by saying
that he is a cultivating tenant, refusing the delivery of possession in respect of the suit property. But as far
as the defendant is in possession of the suit property as a cultivating tenant as recorded as per the provisions
under the Act 10 of 1969, it is not open to the plaintiff to take such a plea that after redemption the
defendant cannot continue his possession in respect of the suit property in lieu of a specific bar under
Section 16-A of the Tamil Nadu Agriculturist Record of Tenancy Rights (Act 10 of 1969).
7 (i) Both the Courts below have held that the plaintiffs are entitled to a decree for redemption of
the suit mortgage in respect of the plaint schedule property, which in my opinion does not warrant any
interference from this Court. But both the Courts have erroneously, forgetting for a moment that the
defendant is a cultivating tenant recorded as per the provisions under the Act 10 of 1969, the Civil Court
under Section 16-A of the Act 10 of 1969 is not empowered to dispossess his possession in respect of the
suit property, which in my view warrants interference. Substantial questions of law are answered
accordingly.
8. In fine, the second appeal is partly allowed and the judgment of the first appellate Court in
A.S.No.67 of 2001 on the file of the Principal Subordinate Judge, Madurai, is set aside regarding the
delivery of possession. In other respects, the findings of the first appellate Judge is confirmed. Considering
the close relationship of the parties, there is no order as to costs.
Appeal partly allowed.

[2008 (1) TNCJ 118 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE :
A. SELVAM, J.
G. SHANMUGAVEL …Petitioner
Versus
P. N. PANCHAILI AMMAL …Respondent
[C.R.P. NPD No. 624 of 2003, decided on 28th August, 2007]
Tamil Nadu Buildings (Lease and Rent Control) Act, 1960— Section 14 (1) (b)—Eviction
on ground of demolition and reconstruction—Giving of undertaking—While filing plaint
undertaking not given by landlord as contemplated under Section 14 (1) (b)—Held, suit not to be
dismissed on this ground—Landlord may give undertaking even before execution.
(Para 14)
Case law.—2002 (4) SCC 437; 2006 (2) MLJ 524; 2007 (2) CTC 518—relied on; 1999 (1) CTC
657; 2005 (5) CTC 585—referred.
Counsel.—Mr. S. Subbiah, for the petitioner; Mr. S. Pon Senthil Kumar, for the respondent.
JUDGMENT
A. SELVAM, J.—This civil revision petition has been filed against the concurrent orders passed in
Rent Control Original Petition No.7 of 2000 and in Rent Control Appeal No.4 of 2000 by the Rent
Controller (District Munsif Court), Kovilpatti and by the Rent Control Appellate Authority (Subordinate
Court), Kovilpatti, respectively.
2. The respondent/landlady herein as petitioner has filed Rent Control Original Petition No.7 of
2000 on the file Rent Controller (District Munsif Court), Kovilpatti, under Section 14(1)(b) of the
Tamilnadu Buildings (Lease and Rent Control) Act, 1960 praying to evict the revision petitioner/tenant on
the ground of demolition and reconstruction.
 3. It has been contended on the side of the petitioner that the demised premises is a non-residential
building and the same belongs to the petitioner. The respondent is a tenant and monthly rent is Rs.150/-
th
payable on or before 5 day of following months. During 1990 the petitioner has demanded the
respondent to vacate the demised premises so as to demolish and reconstruct the same. The said building is
hundred years old. The respondent has also promised to vacate the building, but he has failed to keep up
his assurance. Under the said circumstances, the present petition has been filed.
4. Per contra, it has been contended on the side of the respondent that the respondent has never
agreed to vacate the building. The building in question has been constructed only by the respondent.
The petitioner has already filed Rent Control Original Petition No.5 of 2000. The respondent has also
filed Rent Control Original Petition No.6 of 2000. It is false to say that the petitioner has decided to
demolish and reconstruct the building and there is no merit in the petition and the same deserves dismissal.
5. On the basis of divergent contentions raised by either party, the Rent Controller has allowed the
petition. Against the order passed by the Rent Controller, the respondent/tenant has preferred Rent
Control Appeal No.4 of 2002 on the file of the Rent Control Appellate Authority (Subordinate Court),
Kovilpatti. The first appellate Court after considering the rival contentions raised by either party, has
dismissed the Rent Control Appeal No.4 of 2002. Against the concurrent orders passed by the Courts
below, the present civil revision petition has been filed.
6. The learned counsel appearing for the revision petitioner/respondent/tenant has contended with
great vehemence that as per Section 14 (2)(b) of the Tamil Nadu Buildings (Lease & Rent Control) Act,
1960 (hereinafter referred to as “the Act”), the petitioner should have filed an undertaking, but the
petitioner has not done it and therefore, the present petition is not legally maintainable and the Courts
below without considering the same, have allowed the petition and therefore, the orders passed by the
Courts below are liable to be interfered with.
7. The learned counsel appearing for the respondent/petitioner/landlady has also equally contended
that the respondent/petitioner/landlady has not filed undertaking under Section 14(2)(b) of the Act and
subsequently, she has filed the same and even before recording delivery, the landlady is entitled to give
such undertaking and the failure on the part of the revision respondent/ petitioner/landlady to file
undertaking as contemplated under Section 14(2) of the Act is not a flaw to the petition and the Courts
below after considering the contentions urged on the side of the revision respondent/petitioner/landlady,
has rightly allowed the petition and therefore, the contention urged on the side of the revision
petitioner/respondent/tenant is not legally maintainable and under the said circumstances, the present civil
revision petition deserves dismissal.
8. On the basis of divergent submissions made by either counsel, the only point that has now
winched to the fore in the present civil revision petition is; whether failure of giving undertaking under
Section 14(2)(b) of the said Act, would pave the way for dismissal of the petition filed under Section 14(1)
(b) of the said Act?
9. Section 14(2)(b) of the Act reads as follows;
“14. Recovery of possession by landlord for repairs or for reconstruction.— (1).. (a)..
(b)..
(2) No order directing the tenant to deliver possession of the building under this Section
shall be passed- (a)....
(b) on the ground specified in clause (b) of sub-section (1), unless the landlord gives an
undertaking that the work of demolishing any material portion of the building shall be
substantially commenced by him not later than one month and shall be completed
before the expiry of three moths from the date he recovers possession of the entire
building or before the expiry of such further period as the Controller may, for reasons to
be recorded in writing allow.”
10. From the close reading of the provision mentioned supra, it is needless to say that the
petitioner who has filed a petition under Section 14(1)(b) of the Act should also give an undertaking in
consonance with the provisions of 14(2)(b) of the said Act.
 11. In the instant case, as rightly pointed out by the learned counsel appearing for the revision
petitioner/respondent/tenant that the landlady has failed to file an undertaking as envisaged under Section
14(2)(b) of the Act, but in the appellate forum, she has filed such undertaking to that effect.
12. The main contention urged on the side of the revision petitioner/respondent/tenant is that such
undertaking should be given along with the main petition filed under Section 14(1)(b) of the Act. The
learned counsel appearing for the revision petitioner/respondent/tenant has accentuated the Court to look
into the decisions referred to infra.
(a) The first and foremost decision is reported in 1999(1) CTC 657 (Krishan and two others
v. Ravindranath) wherein this Court has held that Section 14(2)(b) clearly contemplates
giving of undertaking before ordering eviction and not later.
(b) The second decision is reported in 2005 (5) CTC 585 (M.Abu Tahir v. M.Rahamathulla)
wherein the also this Court has held that landlord cannot give undertaking either in appeal
or in revision under Section 14(2)(b) of the said Act.
13. In order to controvert the decisions accited by the learned counsel appearing for the revision
petitioner/respondent/tenant, the learned counsel appearing for the revision respondent/petitioner/landlady
has accentuated the Court to look into the following decisions:
(a) The first and foremost decision is reported in 2002 (4) SCC 437 (R.V.E.Venkatachala
Gounder v. Venkatesha Gupta and others) wherein the Honourable Apex Court has held
that it is directed that the executing Court shall before directing the tenants to be evicted
and possession being given to the landlord, direct the landlord to file plans of proposed
construction, duly approved by the local authority, and give an undertaking in terms of
Section 14(2)(b) of the Act.
(b) The second decision is reported in 2006 (2) M.L.J. 524 (K.Sanjeevi Kumar v.
P.Somasundaram) wherein this Court has held that in this case as it was found that the
order of the eviction is proper, the Court deem it fit to grant opportunity for the
landlord to give an undertaking under Section 14(2)(b) before ever the order of eviction is
implemented.
(c) The third decision is reported in 2007(2) C.T.C. 518 (Lakshmi v. M.V.Balamurali and
another) wherein this Court has held that landlord can be given opportunity to rectify
error by giving fresh undertaking before eviction order is implemented and eviction
petition cannot be rejected on the ground that no undertaking was given as contemplated
under Section 14(2)(b) of the Act.
14. Therefore, from the cumulative effect of reading of the decisions accited by the learned counsel
appearing for the revision respondent/petitioner/ landlady, the Court can easily discern that there must
be an undertaking as contemplated under Section 14(2)(b) of the said Act and if the landlord has failed to
give the same, he can file the same even at the stage of execution before eviction order is implemented.
Simply because, such undertaking has not been given along with the main petition, the main petition cannot
be rejected on the part of the failure of the landlord. Therefore, it is manifestly clear that an undertaking as
contemplated under Section 14(2)(b) of the said Act, can be given even at the stage of execution
proceedings. Since the Honourbale Apex Court has given the dictum as mentioned supra and the same has
been followed by this Court in subsequent decisions, this Court is in a position to follow the dictum
given by the Honourable Apex Court.
15. In view of the discussion made earlier, it is very clear that the arugment advanced by the learned
counsel appearing for the revision petitioner/respondent/tenant is sans merit and whereas the argument
advanced by the learned counsel appearing for the revision respondent/petitioner/landlady is really
having subsisting force.
16. In fine, this civil revision petition deserves dismissal and accordingly, is dismissed with costs.
The order passed in Rent Control Original Petition No.7 of 2000 by the Rent Controller (District Munsif
Court) Kovilpatti, upheld in Rent Control Appeal No.4 of 2002 by the Rent Control Appellate Authority
(Subordinate Court), Kovilpatti is confirmed. The revision petitioner/ respondent/tenant is directed to
vacate the demised premises within two months from today.
Petition dismissed.
 [2008 (1) TNCJ 121 (Mad) (MB)]
MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE :
S. NAGAMUTHU, J.
R. SOMU @ SOMASUNDARAM ...Petitioner
Versus
S. RAJASEKARAN …Respondent
[C. R. P. PD (MD) No. 1010 of 2006 and M.P. (MD) No. 2 of 2006, decided on 31st July, 2007]
Civil Procedure Code, 1908—Order XLI, Rule 1 (n) and Order XXXIII, Rules 5 and 3—
Appeal or revision—Application to sue as an indigent person rejected—Appeal provided against
order—Hence revision not maintainable—Petition dismissed. (Para 4)
Case law.—2004 (1) LW 335—relied on.
Counsel.—Mr. R. Sundar, for the petitioner; Mr. K. Srinivasan, for the respondent.
JUDGMENT
S. NAGAMUTHU, J.—The petitioner challenges the order dated 26.09.2006 made in Indigent
O.P.No.2 of 2004, on the file of the Principal District Munsif, Trichy.
2. The petitioner has filed the above O.P., to permit him to file the suit as indigent person and to
pass a decree in his favour against the respondent/ defendant for a sum of Rs.49,700/- along with the
future interest till the date of realization. The lower Court by order dated 26.09.2006, has disallowed the
claim of the petitioner to declare him as an Indigent person and has granted time till 11.10.2006 for paying
court-fee. Challenging the same this revision has been filed.
3. Heard the learned counsel for the petitioner as well as the learned counsel for the respondent.
4. The learned counsel for the respondent would rely on Order XLIII, Rule 1 (n) C.P.C., wherein it
has been provided that any order refusing to recognise a person as an indigent person to institute a suit is an
appealable order. Therefore, the learned counsel for the respondent would submit that this
revision itself is not maintainable.
5. The learned counsel for the petitioner would rely on the Judgment of a Division Bench of this
Court reported in 2004 (1) L.W. 335 (Minor Cibiraj & another v. C.Marimuthu & others) and would
submit that the revision is maintainable. A perusal of the said judgment would show that it was a case
where the suit itself was dismissed which came to be considered by the Division Bench. In that case, it was
stated that since the dismissal of the suit is beyond the jurisdiction of the Court, the revision was
maintainable. Even in the said judgment, the Division Bench has held that in law and facts, it is only
rejection of the petition which is contemplated and no question of dismissal of the suit for default is either
contemplated or provided for. Since dismissal of suit was beyond the jurisdiction of the Court, the
Division Bench was of the view that the revision is maintainable. But, the order now under challenge is
very well an appealable order and therefore, the revision does not lie.
6. In view of the same, this revision is dismissed as not maintainable. However, the petitioner is at
liberty to prefer regular appeal against the impugned order if so advised and if any such appeal is
preferred, the period spent in this revision i.e., between 01.12.2006 to 31.07.2007 shall be excluded for the
purpose of calculating the period of limitation. No costs. Consequently, connected M.P is closed.
7. Registry is directed to return the certified copy of the impugned order to the petitioner to enable
him to prefer appeal.
Revision dismissed.

[2008 (1) TNCJ 123 (Mad) (MB)]

MADRAS HIGH COURT
 (MADURAI BENCH)
BEFORE :
A. C. ARUMUGAPERUMAL ADITYAN, J.
SUNDARRAJ AND OTHERS …Petitioners
Versus
G. GEORGE PACKKIAM …Respondent
[S. A. No. 1228 of 1995, decided on 11 September, 2007]
th

Civil Procedure Code, 1908—Section 100—Second appeal—Suit for declaration of title and
for consequential injunction—Respondent/ Plaintiff asserted that he purchased property in dispute
by oral sale and paid Rs. 90/- as consideration amount in 1978—Alternative plea of adverse
possession raised—Dismissal of suit by trial Court—First appellate Court however reversed
finding—Legality of—Held, contradiction in year of purchase as in pleading he stated property
was purchased in 1978 and in statement before Court he mentioned year 1977—No tax receipts
shown—Tax receipts in name of original owner—Further alternative plea was raised as he was not
confident about main plea—Hence first appellate Court erred in decreeing suit—Appeal allowed.
(Paras 6 (a), 6 (b), 6 (c) and 6 (d))
Case law.—2005 (1) CTC 494 57.
Counsel.—Mr. K. Balasundaram, for the appellants; Mr. A. Hajamohideen, for the respondent.
JUDGMENT
A. C. ARUMUGAPERUMAL ADITYAN, J.—The defendant in O.S.No.807 of 1993 on the file of the
District Munsif, Pattukkottai, who has lost his defence before the first appellate Court, has preferred this
second appeal.
2. The averments in the plaint in brief relevant for the purpose of deciding this second appeal
sans irrelevant particulars are as follows:—
The plaint schedule property originally belonged to Anthoniyammal w/o. Solaman Manivel Pillai,
under family parition.In the year 1978 the said Anthoniyammal had sold the plaint schedule property to the
plaintiff by oral sale. The plaintiff is in possession of the suit property from the year 1978 and thereby had
prescribed title to the suit property by way of adverse possession. The plaintiff is cultivating the suit
property by raising paddy crops and is also paying land tax to the Government. On 8.10.1993, the
defendant taking advantage of the oral sale made an attempt to intervene with the possession of the
plaintiff in the suit property and they obstructed the plaintiff from ploughing the suit land. The defendants
have no right title or interest in respect of the suit property. Hence, the suit for declaration of title and for
consequential injunction.
3. The first defendant has filed written statement with the following contentions:—
Anthoniyammal got the plaint schedule property in family partition and she was in possession and
enjoyment of the suit property till her death. The averment that the said Anthoniyammal had sold the plaint
schedule property in the year 1978 for a valuable consideration in favour of the plaintiff is not true. The
plaintiff has not prescribed title to the suit property by way of adverse possession. The suit is not
maintainable. The plaintiff is not in possession and enjoyment of the suit property and he has not raised
any crops in the suit property and he is not paying any land tax to the suit property. Late
Anthoniyammal had sons by name Thairiyam, Suntharaj and Thurairaj and daughters by name Grace,
Roseline, Pushpam and Manoranjeetham. Out of the daughters Grace and Pushpam are now no more.
Grace died issueless. But there are legal representatives to late Pushpam. The suit is bad for non-joinder of
necessary parties. Anthoniyammal was in possession and enjoyment of the suit property till her death. A
portion of the property was acquired by the Government for formation of canal and the compensation
amount was also received by the said Anthoniyammal. After formation of the canal Anthoniyammal was in
possession of about 30 Kuzhi of lands on the east of the canal and 27 kuzhi of lands on the west of the said
canal and was enjoying the same in two flats. She died on 21.12.1985. After her death, D-1 & D-2 are in
possession and enjoyment of the said land as legal heirs of Anthoniyammal. After the death of
Anthoniyammal, plaintiff approached the defendants for the sale of the suit property. Since D-1 & D-2
are not willing to sell the suit property to the plaintiff, with an ulterior motive the plaintiff has filed the suit.
The plaintiff is having both muscle power and money power and the defendants are poor agriculturist. The
plaintiff have demolished the bund on the northern side of the suit property and had ploughed the land
and raised the crops. In this connection, the defendants have preferred a police complaint against the
plaintiff on 8.10.1993. In a clandestine manner the plaintiff had obtained kist receipts in his name from out
of the money given by Anthoniyammal to pay the land tax in her name. The plaintiff has no right title or
possession in respect of the suit property. There is not cause of action for the suit. Hence, the suit is liable
to be dismissed. The other defendants have adopted the written statement filed by D-1.
4. On the above pleadings the learned trial Judge has framed seven issues for trial. Before the
trial Court P.W.1 to P.W.5 were examined and Ex. A-1 to Ex.A-3 were marked on the side of the
plaintiff. On the side of the defendants D.W.1 was examined and Ex.B-1 to Ex.B-13 were marked.
After going through the oral and documentary evidence, the learned trial Judge had come to a conclusion
that the plaintiff is not entitled to any relief asked for in the plaint and accordingly, dismissed the suit with
costs, which necessitated the plaintiff to prefer an appeal in A.S.No.5 of 1995 before the learned first
appellate Judge, who after due deliberations to the submissions made by the counsel of the appellant as
well as the counsel for the respondents and after meticulously scanning the evidence, has come to the
conclusion that there are grounds to interfere with the findings of the learned trial Judge and accordingly
allowed the appeal, thereby setting aside the findings of the learned trial Judge, which necessitated the
defendants to approach this Court by way of this Second Appeal.
5.The following substantial questions of law arose for consideration in this second appeal:
(i) Whether the lower appellate Court was right in sustaining the plea of oral sale in the absence
of proper pleading or proof in accordance with law?
(ii) Whether the non-compliance of the provisions of Section 54 of the Transfer of Property Act
renders the oral sale pleaded unsustainable in law?
(iii) Whether the plaintiff, who has pleaded oral sale can fall back on the plea of adverse
possession also?
6. The Point:- 6(a) The plaintiff has filed the suit for declaration and injunction on two grounds.
First being, he had purchased the suit property from one Anthoniyammal for Rs.90/- orally in the year
1978. At the same time, the plaintiff would plead that he had prescribed title to the suit property by way of
his long, continuous and uninterrupted possession for more than the statutory period. But as correctly
held by the learned trial Judge, the plaintiff has miserably failed to prove the oral sale as well as the plea of
adverse possession. The plaintiff should stand or fall on his own legs. Either he must plead that he has
prescribed title under oral sale or he must plead and prove that he had prescribed title to the suit property by
way of adverse possession. As rightly observed by the learned trial Judge, the plaintiff is not definite about
his oral sale, as to the purchase of the suit property for Rs.90/- from Anthoniyammal in the year 1977 or in
the year 1978.
6(b) In the plaint, the plaintiff would aver that the oral sale is of the year 1978, but in the Court as
P.W.1 in the box, he would depose that he had purchased the suit property by oral sale in the year 1977.
If it is so, then the plaintiff would have filed the land tax receipts relating to the year 1977 or 1978 to show
that from the date of oral sale, he took possession of the suit property and he is paying the land tax to the
property from the date of the purchase. The land tax receipts Ex.A-1 to Ex.A-3 produced by the plaintiff,
are of the year 1986, 1987 and 1993 respectively. A perusal of Ex.A.-land tax receipt dated 15.4.1986 will
go to show that on behalf of Anthoniyammal, the plaintiff had paid the land tax for the Fasalis 1388, 1389,
1390, 1391, 1394 and 1395. From Ex.A-1 it cannot be presumed that the plaintiff is in possession of the
suit property from the year 1978. If the case of the plaintiff is true that he had purchased the suit property
from Anthonyammal then there is no necessity for him to pay the land tax on behalf of Anthoniyammal
under Ex.A-1. Ex.A-2 is neither in the name of Anthoniyammal nor in the name of the plaintiff, but it is in
the name of one Margret Gatherin. The plaintiff has not given any explanation in his evidence as to in what
way the said Margret Gatherin was related to the said Anthoniyammal or in respect of the suit property.
Ex.A-3 alone is in the name of the plaintiff, which is dated 27.2.1993. It is settled proposition of law that if
a person claims adverse possession then he must admit the title in respect of the said property vest with the
other person against whom he claims adverse possession. Having taken a plea that he had purchased the
suit property under oral sale from Anthoniyammal it is not open for him to contend that he had prescribed
title by way of adverse possession against Anthoniyammal.
6(c) The learned counsel for the respondent relied on 2005(1)CTC 494, N.S.Spance v.
D.S.Kanagarajan and another, wherein it has been held that a person, who is in possession of the property
is entitled to take alternative plea. But there was no pleading in the said case taken by the plaintiff that he
had prescribed title to the suit property under a sale. Once the plaintiff has taken a plea that he has
prescribed title by way of adverse possession then it is not open to him to claim that he has also prescribed
title to the suit property under oral sale. The facts of the case relied on by the learned counsel for the
respondent in the above ratio is that:
“The plaintiff had filed the suit for declaration of the title and consequently for permanent
injunction. According to him, the suit property originally belonged to one ‘A’, the father of
D-1 ancestrally. He had sold the property to the plaintiff’s paternal uncle ‘B’ on 22.5.1960 for a
valuable consideration and in the subsequent family partition in the year 1958 the suit property
was allotted to the sons of one Subramania Chettiar, the brother of ‘B’. After the family
arrangement in the year 1958, ‘B’ had purchased the suit property in which the others have no
interest. ‘B’ had no issues. The plaintiff was looking after the affairs of ‘B’. Subsequently ‘B’
gave the suit property to the plaintiff in the year 1970 and according to the plaintiff, he was in
possession from that date onwards and he would claim that the right vested in favour of him by
‘B’ was confirmed in the family arrangements dated 30.10.1972. In pursuance of the
mutation took place in the property register and other connected records and on that basis he was
in possession and enjoyment of the said property and paying the tax and leasing out the same to
the third parties, to the knowledge of the first defendant, who is adjacent owner of the suit
property. Since the defendants have made attempt to take possession by illegal method and
trespassed into the suit property, denying the title of the plaintiff, the plaintiff approached the
Court on the ground that he had prescribed title by way of adverse possession and also pressing his
title through B, who was allotted the suit property in the family partition.”
Only under such circumstances, the alternative plea taken by the plaintiff was upheld by this
Court in the above dictum, which has no barring at all in respect of the present facts of the case, in which
the plaintiff claims title in respect of the suit property under a oral sale and also by way of adverse
possession.
6(d) It is pertinent to note here that in the plaint the plaintiff has not even stated about the oral sale
consideration for the suit property. Only in the box he would contend that the oral sale consideration for
the suit property was Rs.90/-. The learned first appellate Judge under surmises and conjectures held that
Anthoniyammal was under dire circumstances to sell the suit property. But in his judgment it has been
stated that Anthoniyammal was getting pension and was a pensioner. To prove the oral sale, the plaintiff
had examined P.W.2, who is none other than the brother-in-law of the plaintiff and also he has given in
marriage his daughter to the son of the plaintiff. But in the cross-examination he would admit that he
cannot say on which date, month and year the oral sale was effected. P.W.3 is another witness examined
on the side of the plaintiff to prove the oral sale. P.W.3 is a chance witness. According to him, he went to
Anthoniyammal’s house for the purchase of cattle and at that time the plaintiff and Anthoniyammal were
discussing about the sale of the land and that Anthoniyammal had demanded Rs.150/- for the land, but later
settled for Rs.90/-. According to him, Anthoniyammal had received Rs.90/- from him and handedover the
same to the plaintiff. He would further state that he had purchased the cattle from the plaintiff and for
that he gave Rs.250/- to the plaintiff and gave another sum of Rs.250/- for executing a promissory note.
But in the cross-examination he would depose that the promissory note executed by him became time
barred and that he had discharged the said loan after 3 or 4 years. If oral sale was effected in the presence
of P.W.2 and P.W.3 then the plaintiff would have stated about the same in the plaint. The plaint is silent
about the fact that the oral sale was effected in the presence of P.W.2 and P.W.3. So it goes without saying
that P.W.2 and P.W.3 have been procured by the plaintiff only for the purpose of the case. If oral sale is
true, then there is no need for the plaintiff to plead adverse possession. Under such circumstances, I do not
find any reason to interfere with the findings of the learned trial Judge, which was unfortunately set aside
by the learned first appellate Judge. Point is answered accordingly.
 7. In fine, the second appeal is allowed setting aside the findings of the first appellate Judge in
A.S.No.5 of 1995 on the file of the Subordinate Judge, Pattukkottai, consequently the suit is dismissed.
Parties shall bear their own costs.
Appeal allowed.

[2008 (1) TNCJ 127 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE :
S. R. SINGHARAVELU, J.
ORIENTAL INSURANCE CO. LTD. …Petitioner
Versus
SHANTHI AND OTHERS …Respondents
[C.M.A. (MD) No.115 of 2001 and C.M.P. (MD) No.2169of 2001 decided on 18 August, 2007]
th

Motor Vehicles Act, 1988—Section 149 (2) (a) (ii)—Compensation—Liability of—Auto-

rickshaw met with accident with electric poll—Driver not having licence to drive transport vehicle—
Violation of condition of policy—Liability to pay compensation is on insured—Appellant directed to
pay claimant and recover it from insured. (Paras 4 and 6)
Case law.—2004 ACJ 1—relied on.
Counsel.—Mr. C. Jawahar Ravindran for the petitioner, Mr. A. Abdul Wahab for Respondents 1 to
3.
JUDGMENT
S.R. SINGHARAVELU, J.—The appeal is filed by the Insurance Company against the award dated
09.10.2000 of the Motor Accidents Claims Tribunal, Principal District Judge, Nagercoil in
M.C.O.P.No.162/1998, making an award of Rs.2,14,800/- towards the respondents 1 to 3 who are the
dependants of the deceased.
2. The only ground raised by the appellant Insurance Company is that there is breach of condition of
policy as contained in sub-section 2(a)(ii) of Section 149 of the Motor Vehicles Act. In this case, the
accident took place by collision of the auto-rickshaw in the electric post. The vehicle owner was an insured
(fourth respondent). It was argued on behalf of the appellant that the driver of the auto-rickshaw was
possessing a licence in which no endorsement was found for driving a transport vehicle.
3. As a matter of fact, according to Section 3(1) of the Motor Vehicles Act, no person shall drive a
motor vehicle in any public place unless he holds an effective driving licence issued to him authorising him
to drive the vehicle; and no person shall so drive a transport vehicle unless his driving licence specially
entitles him so to do. The only exception is a motor cap or motorcycle hired for his own use or rented under
any scheme made in sub-section (2) of Section 75. In this case, both exception may not apply.
4. Therefore, the driver of the auto-rickshaw which collided against the electric post causing fatal
injury to the inmate of the auto-rickshaw should have been driven by a person who not only possessed
driving licence but also the driving licence should contain an endorsement for driving a transport vehicle.
The policy condition also expresses the same. It is a fact that the driving licence of the driver of the auto-
rickshaw involved in the accident did not contain the endorsement making him eligible to drive a transport
vehicle. In that way, the condition is proved to have been breached by the insured.
5. But as per the observation made in National Insurance Co. Ltd. v. Swaran Singh reported in 2004
ACJ 1, a direction can be made that the insurer is liable to be reimbursed by the insured for the
compensation and other amounts which has been compelled to pay to the third party under the award of the
Tribunal.
6. In this case, such a direction is necessary for the reasons mentioned supra. Therefore, it is
directed that the appellant will be entitled to get reimbursement of the award of compensation, after
making payment of the same to the dependants of the deceased and then to collect it from the insured.
 7. With the above said direction, this Civil Miscellaneous Appeal is partly allowed. Consequently,
the connected miscellaneous petition is closed. No costs.
Appeal partly allowed.

[2008 (1) TNCJ 129 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE :
A. SELVAM, J.
SHAMSUL LUHA ….Petitioner
Versus
JAMIATHU AHLIL KURAN VAL HATESH AND ANOTHER ….Respondents
[C. R. P. PD. Nos.1096 and 1097 of 2006 and M. P. No.1 of 2006, decided on 27 August, 2007]
th

Civil Procedure Code, 1908—Order I, Rule 10 (2)—Specific Relief Act, 1963—Section 38 (3)
—Impleadment of necessary party—Suit for perpetual injunction—Specific contention of plaintiff
respondent against defendant petitioner that defendant made arrangement to disturb peaceful
administration of plaintiff—He alone is proper and necessary party to suit proceeding—Cause of
action arisen only against defendant and not against proposed party—No cause of action arisen
against proposed party—Proposed party is neither proper nor necessary party—Hence Court
below rightly dismissed application.
(Paras 14, 15 and 17)
Case law.—1996 (5) SCC 379; 1999 (2) SCC 577; 2000 (3) MLJ 739; 2002 (1) CTC 732; 2002 (2)
LW 408; 2001 (3) MLJ 265; 2002 (3) LW 472; 2003 (4) LW 451.
Counsel.—Mr. K. Srinivasan for the petitioner, Mr. S. Sivathilakar for the 1 st respondent; No
appearancefor 2nd respondent.
JUDGMENT
A. SELVAM, J.—These civil revision petitions have been filed against the common order dated
09.10.2006 passed in Interlocutory Application Nos.308 of 2006 and in 309 of 2006 in Original Suit
No.115 of 2006 by the Principal Subordinate Court, Tirunelveli.
2. The revision petitioner herein as petitioner has filed Interlocutory Application Nos.308 of 2006
and 309 of 2006 under Order I, Rule 10(2) of Code of Civil Procedure, so as to implead the proposed party
as one of the defendants in Original Suit No.115 of 2006 and in Interlocutory Application No.281 of 2006,
wherein the revision respondent has been shown as the respondent.
3. It has been contended on the side of the revision petitioner/petitioner that the revision
respondent /respondent has instituted the Original Suit No.115 of 2006 on the file of the Principal
Subordinate Court, Tirunelveli for the relief of permanent injunction against the revision
petitioner/petitioner and the suit property is Majidhul-Rehman Mosque and the same has been constructed
by the proposed party and the revision petitioner/petitioner is acting as its president and the proposed
party is very much essential for deciding the dispute that exists between the parties and therefore, the
present petitions have been filed so as to implead the proposed party as one of the defendants.
4. Per contra, it has been contended on the side of the revision respondent/respondent that
the revision respondent/respondent has filed the Original Suit No.115 of 2006 for the relief of perpetual
injunction against the revision petitioner/petitioner and the proposed party is not at all necessary for
deciding the real controversy that exists between the parties and therefore, the petitions in question are
liable to be dismissed.
5. On the basis of rival contentions raised by either party, the Court below has dismissed both
the petitions and against the common order, the present civil revision petitions have been filed.
6. The learned counsel appearing for the revision petitioner/petitioner has repeatedly contended that
the revision respondent/respondent as plaintiff has instituted the Original Suit No.115 of 2006 for the relief
of permanent injunction against the revision petitioner/petitioner and the disputed property belongs to
the proposed party and therefore, the proposed party is very much essential to decide the real controversy
that exists betwixt the parties and without impleading the proposed party as one of the defendants, no
proper decision can be given and under the said circumstances, the present petitions have been filed, but the
Court below without considering the contentions urged on the side of the revision petitioner/petitioner has
erroneously dismissed the petitions and therefore, the common order passed by the Court below is liable to
be set aside and the petitions in question are to be allowed.
7. Per contra, the learned counsel appearing for the revision respondent/respondent has laconically
contended that the revision petitioner/petitioner has once served as a servant of the plaintiff and due to
some malpractice, he has been ousted from service and having enraged at the conduct of the plaintiff, he is
acting against the interest of the plaintiff and also trying to interfere with the peaceful possession and
enjoyment of the suit property and under the said circumstances, the Original Suit No.115 of 2006 has
been filed for the relief of perpetual injunction and the proposed party is not at all a necessary party and the
Court below after considering all the rival contentions raised by either party, has rightly dismissed the
petitions and there is no inkling nor vantage to make interference with the well merited common order
passed by the Court below and altogether the present civil revision petitions deserve dismissal.
8. Before considering the rival submissions made by either counsel, the Court has to perorate the
necessary averments made in the plaint. It is an admitted fact that the revision respondent/plaintiff has
instituted the Original Suit No.115 of 2006 on the file of the Principal Subordinate Court, Tirunelveli, for
the relief of permanent injunction and in the plaint, at paragraph 8, it has been clinchingly stated that the
defendant/revision petitioner has been ousted from the service of the plaintiff and now, the
defendant/revision petitioner has been making arrangements to disturb the peaceful administration of the
plaintiff.
9. Now, the Court has to analyse the rival submissions made by either counsel. The specific
contention urged on the side of the revision petitioner/petitioner is that the proposed party is a necessary
party for deciding the real controversy that exists between the parties. The specific contention urged on the
side of the revision respondent/respondent is that the proposed party is not at all required for the purpose of
deciding the real dispute that exists between the parties and the present suit has been filed only for the relief
of perpetual injunction.
10. The learned counsel appearing for the revision petitioner/petitioner in support of his contention,
has drawn the attention of the Court to the following catena of decisions :
(a) The first and foremost decision is reported in 1996 (5) SCC 379 (Aliji Momonji & Co. v.
Lalji Mavji and others) wherein the Apex Court has held that in the suit filed by the
appellant-lessee for perpetual injunction restraining Municipal Corporation from
demolishing a portion of the building on ground of making unauthorised construction,
respondent-landlord is a necessary party.
(b) The second decision is reported in 1999 (2) SCC 577 (Savitri Devi v. District Judge
Gorakhpur and others) wherein the Apex Court has held that transferee pendente lite of
interest in immovable property, is a necessary party.
(c) The third decision is reported in 2000 (3) M.L.J. 739 (Beebee John v. Sheik Hussain and
others) wherein this Court has held that even in the appellate stage necessary party can
be impleaded.
(d) The fourth decision is reported in 2002 (1) C.T.C. 732 (Akshya vidyalaya Charitable
Trust, rep. By its Managing Trustee, E.N.Palanisamy, Viveknanda Nagar Extension,
Dindigul v. E.Kaladevi and seven others) wherein this Court has held that the
Court should consider whether impleadment was imperative for proper adjudication of
suit.
(e) The fifth decision is reported in 2002 (2) LW 408 (Tirunelveli Juction High Road,
Kemalamuthu Charities Kattida Vadagai Tharkal Sangam through its Secretary v.
Sethuramalingam and others) wherein this Court has held that the principle for
impleading a third party is avoidance of multiplicity of proceedings and further it has
 been held that the Court has no jurisdiction to add a party unless it is necessary and
proper party.
(f) The sixth decision is reported in 2001(3) M.L.J. 265 (K.Chithra and others v.
K.Muthuperumal and others) wherein this Court has held as follows:
“If the petitioner, who prays to be impleaded as party, has some case or other to offer, having
nexus to the suit claim or suit property, it is always desirable to implead him as a party rather
than refusing to implead him, since the expectation of law is that the person seeking
impleadment as a party must be given an opportunity to exhaust his remedy in the suit when he is
basically found to have been aggrieved of anything regarding the suit claim or property and it is an
illusion on the part of the other side to think that either he could be warded off without giving him
an opportunity to contest the suit or even to think that by adding such parties, grave injustice could
be meted out to the other side since only subject to proof of the facts alleged, with due opportunity
for both to be heard in the whole of the trial, ultimate decision is going to be arrived at in the suit
on merit and in accordance with law. Therefore, when it comes to the knowledge of the Court that
the petitioner seeking impleadment has some case to offer, the Courts are expected to allow such
application impleading the party to the suit proceedings.”
(g) The seventh decision is reported in 2002(3) LW 472 (R.Anitha and others v.
Ramakrishnan and others) wherein this Court has held that the proposed party has
purchased a part of the property even before filing of the suit, but omitted to be added as
parties. Without their presence the issues between the parties could not be effectually
and completely adjudicated and they have to be added as parties in the final decree
proceedings.
(h) The eighth decision is reported in 2003(4) LW 451 (P.R.Nallappa v. P.K.Srinivas and
others) wherein this Court has held that even if a person is found to have had any
semblance of right, it is only proper to implead him as a party to the suit proceeding.
11. Therefore, from the conjoint reading of the decisions accited by the learned counsel appearing
for the revision petitioner/petitioner, it is easily discernible that a third party has to be impleaded so as to
avoid multiplicity of proceedings and at the same time, the Court has no jurisdiction to add a party unless
he or she is necessary and proper party. Further, the Court can implead a third party if he or she is having
any semblance of right over the disputed property.
12. Now, on the basis of dictums enunciated earlier, the Court has to analyse the present petitions.
It is an admitted fact that the Original Suit No.115 of 2006 has been filed only for the relief of perpetual
injunction. The main averments made in the plaint are that the revision petitioner/defendant has once
served as a servant of the plaintiff and due to some malpractice alleged to have been done by him, he has
been ousted from service and having enraged at the conduct of the plaintiff, he has made arrangements to
disturb the peaceful administration of the plaintiff and under the said circumstances, the suit has been filed.
13. The revision petitioner/petitioner has filed the present petitions mainly on the ground that the
suit property is the absolute property of the proposed party, but to encrust the same, no clinching
documents have been filed on the side of the revision petitioner/petitioner. Therefore, it is needless to say
that the facts found in the present case are totally different from the facts of the cases mentioned in the
decisions referred to earlier and it is not an exaggeration to say that none of the decisions is suited to the
facts of the present case. At this juncture, it would be more useful to look into the provisions of Section
38(3) of the Specific Relief Act. It reads as follows:
“When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of,
property, the Court may grant a perpetual injunction in the following cases, namely:—
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to
be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.”
 14. From the close reading of the said provision, it is very clear that if the defendant invades or
threatens to invade the right of the plaintiff, the plaintiff is entitled to institute a suit for the relief of
perpetual injunction and the Court may grant the same under the said circumstances.
15. In the instant case, as noted down in many places, the specific contention of the revision
respondent/plaintiff is that the revision petitioner/ defendant has made arrangements to disturb the peaceful
administration of the plaintiff. Since the revision petitioner/defendant has made arrangements to disturb the
peaceful administration of the plaintiff, he is alone a proper and necessary party to the suit proceedings.
Further, the cause of action has arisen only against the defendant and not against the proposed party. In a
suit for perpetual injunction, a person cannot be added as a party against whom cause of action has not
arisen or a suit can be instituted for perpetual injunction only in respect of a person against whom cause of
action has arisen. In the instant case, no cause of action has arisen against the proposed party so as to
implead him in the Original Suit No.115 of 2006. Therefore, it is very clear that the proposed party is
neither a necessary party nor a proper party for proper adjudication of controversy that exists between the
parties.
16. In the light of the foregoing discussion, it is needless to say that the petitions in question have
been filed unnecessarily and therefore, the arguments advanced by the learned counsel appearing for
the revision petitioner/petitioner is sans merit and whereas the argument advanced by the learned
counsel appearing for the revision respondent/respondent is really having effective force.
17. The Court below after considering all the divergent contentions raised by either party, has
rightly dismissed the petitions and in view of the foregoing narration of both the factual and legal premise,
this Court has not found even a flimsy ground to make interference with the well merited order passed by
the Court below and therefore, the present civil revision petitions deserve dismissal.
18. In fine, these civil revision petitions deserve dismissal and accordingly are dismissed
with costs. The common order passed in Interlocutory Application Nos.308 and 309 of 2007 in Original
Suit No.115 of 2006 by the principal Subordinate Court, Tirunelvei is confirmed. Consequently,
connected miscellaneous petition is also dismissed.
Petition dismissed.

[2008 (1) TNCJ 134 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE :
A. SELVAM, J.
G. ARUMUGHAN ….Petitioner
Versus
M. RAMANATHAN, MD, NELLAI RASI CHIT
FUND (P) LTD., TIRUNELVEILI ….Respondent
[C. R. P. NPD. No.596 of 2003 and C.M. P. No.6365 of 2003, decided on 20 August, 2007]
th

Civil Procedure Code, 1908—Section 51 and Order XXI, Rules 37 and 38—Arrest in
execution—Procedure prescribed under Code not followed—Burden of proof wrongly placed upon
judgment debtor to prove that he has no sufficient means rather it was decree holder who has to
prove sufficiency of judgment debtor to pay amount—Since decree holder failed to discharge
burden, order of Court below of arrest not sustainable, hence, set aside. (Paras 13
to 18)
Case law.—1981 (2) MLJ 229; 100 L.W. 431—relied on.
Counsel.—Mr. S. Sundar for T. R. Rajaraman for the petitioner; No. appearance for the
respondent.
JUDGMENT
 A. SELVAM, J.—Challenge in this civil revision petition is to the order dated 10.10.2002 passed in
Execution Petition No.243 of 2001 in C.C.No.72 of 2000 by the Principal District Munsif Court,
Tirunelveli.
2. The respondent herein as petitioner has filed Execution Petition No.243 of 2001 under Order
XXI, Rules 37 and 38 of Civil Procedure Code on the file of the Principal District Munsif Court,
Tirunelveli praying to arrest the revision petitioner/respondent.
3. It has been contended on the side of the petitioner that the petitioner has instituted the C.C.No.72
of 2000 against the respondent and others before the Joint Registrar of Chit Funds, Tirunelveli and obtained
an executable order and since the respondent has failed to discharge the amounts, the present execution
petition has been levied against him.
4. It has been contended on the side of the respondent that he has no means to pay the amount
mentioned in the execution petition and there is no merit in the petition and the same deserves dismissal.
5. On the basis of rival contentions raised by either party, the Court below has allowed the
petition and thereby directed to arrest the respondent. Against the order passed by the Court below, the
present Civil Revision petition has been filed, at the instance of the respondent.
6. Even though the respondent has been served with notice, appearance has not been made either
through himself or through any counsel and therefore, the present civil revision petition is disposed
off on merits on the basis of arguments advanced on the side of the revision petitioner/respondent.
7. The learned counsel appearing for the revision petitioner/respondent has strenuously contended
that the respondent/petitioner has not filed any execution petition against the principal debtor and the
revision petitioner is only a guarantor and further, the revision petitioner has no means to pay the amount
mentioned in the execution petition and without considering the contention urged on the side of the
revision revision petitioner/respondent, the Court below has erroneously allowed the execution petition and
therefore the order passed by the Court below is liable to be set aside.
8. Before considering the contention urged on the side of the revision petitioner, it has become
shunless to look into the provision of Section 51 as well as Order XXI, Rule 37 of Code of Civil Procedure.
Section 51 of the Code of Civil Procedure reads as follows :
“Powers of Court to enforce execution.—Subject to such conditions and limitations as may be
prescribed, the Court, may, on the application of the decree holder, order execution of the decree
—
(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by sale without attachment of any property;
(c) by arrest and detention in prison for such period not exceeding the period specified in
Section 58, where arrest and detention is permissible under that Section;
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted may require:
Provided that, where the decree is for the payment of money, execution by detention in prison
shall not be ordered unless, after giving the judgment debtor an opportunity of showing cause
why he should not be committed to prison, the Court for reasons recorded in writing, is
satisfied—
(a) that the judgment-debtor, with the object or effect of obstructing or delaying the
execution of the decree,—
(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or
(ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred,
concealed, or moved any part of his property, or committed any other act of bad faith in
relation to his property, or
(b) that the judgment-debtor has, or has since the date of the decree the means to pay the
amount of the decree or some substantial part thereof and refuses or neglects or has
refused or neglected to pay the same, or
 (c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary
capacity to account.”
Order XXI, Rule 37 of Code of Civil Procedure reads as follows :
“Discretionary power to permit judgment-debtor to show cause against detention in prison.—(1)
Notwithstanding anything in these rules, where an application is for the execution of a decree for
the payment of money by the arrest and detention in the civil prison of a judgment-debtor who is
liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant
for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in
the notice and show cause why he should not be committed to the civil prison:
Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise
that, with the object or effect of delaying the execution of the decree, the judgment debtor is likely
to abscond or leave the local limits of the jurisdiction of the Court.
(2) Where appearance is not made in obedience to the notice, the Court shall, if the decree-
holder so requires, issue a warrant for the arrest of the judgment-debtor.”
9. From the conjoint reading of Section 51 as well as Order XXI, Rule 37 of Code of Civil
Procedure, it is pellucid that before making an order of arrest the Court must look into the following aspects
:
(a) Judgment-debtor with the object or effect of obstructing or delaying the execution of
decree is likely to abscond or leave the local limits of the jurisdiction of the Court;
(b) After institution of the suit in which a decree has been posted, judgment-debtor has
dishonestly transferred, concealed, or removed any part of his property; and
(c) Judgment-debtor has or has since the date of the decree the means to pay the amount of
the decree or some substantial part thereof and refuses or neglects or has refused or
neglected to pay the same.
10. Only after satisfying the above aspects, the decree holder is entitled to get an order of arrest
against the judgment-debtor.
11. With these legal backdrops, the Court has to perpend the present case. It is an admitted fact that
the present execution petition has not been levied against the principal debtor and the revision
petitioner/respondent is only a guarantor. There is no cleavage of opinion that a guarantor is also jointly or
separately liable to pay the debt in question. The specific contention urged on the side of the
respondent/petitioner is that the revision petitioner/respondent is having sufficient means to pay the amount
mentioned in the execution petition and with oblique motive he has refused to discharge his liability.
12. On the side of the respondent herein one Murugan has been examined as P.W.1. He has
stated in his evidence that the revision petitioner/respondent is doing a jewellery business under the name
and style of ‘Bavitha Jewellery’. The revision petitioner/respondent has been examined as R.W.1 he has
stated in his evidence that he has not been running the said jewellery shop. Therefore, the entire burden lies
upon the respondent/petitioner to prove that the revision petitioner/respondent is having sufficient means to
pay the amount mentioned in the execution petition. If really the revision petitioner/respondent has been
running a jewellery shop under the name and style of ‘Bavitha Jewellery’, definitely some documents
would have emerged. But, to utter dismay, no document has been filed on the side of the
respondent/petitioner so as to prove the above aspect. In fact, this Court has perused the entire order passed
by the Court below and found that the Court below has placed the entire burden upon the revision
petitioner/respondent. Therefore, the burden of proof placed by the Court below upon the revision
petitioner/respondent is totally against law and the same cannot be accepted. It has already been taunted
that the respondent/petitioner has not proved the alleged means of the revision petitioner/respondent and
on that score alone, the execution petition is liable to be dismissed.
13. The learned counsel appearing for the revision petitioner/respondent has accentuated the Court
to look into the following decisions :
(i) The first and foremost decision is reported in 1981 (2) M.L.J. 229 (Anuma Gounder v.
A.C.Ponnusami) wherein this Court has held that a reference to Section 51 of the Code of
Civil Procedure, would show that it is the bounden duty of the execution Court to satisfy
 itself, that the judgment debtor has, or has had since the date of the decree, the means to pay
the amount of the decree or some substantial part thereof.
(ii) The next decision is reported in 100 L.W. 431 (V.Ganesa Nadar v. Chellathai Ammal)
wherein this Court has held that arrest cannot be sought for a lever to force payment without
taking recourse of proceedings for attachment and sale of immovable property.
14. From the close reading of the decisions referred to earlier, it is made clear to the Court that
before passing an order of arrest the execution Court must look into the conditions mentioned in Section 51
of the Code of Civil Procedure and further it is pellucid that arrest cannot be sought as a lever to force
payment without making proceedings for attachment and sale of immovable property.
15. In the instant case, the specific contention of the respondent/ petitioner is that the revision
petitioner/respondent is running a jewellery shop under the name and style of ‘Bavitha Jewellery’.
Therefore, a bounden duty is cast upon the respondent/petitioner to levy execution so as to attach and sale
the alleged immovable property of the revision petitioner/respondent. But, he has not done it. On that score
also, the present execution petition is liable to be thrown out.
16. As adverted to earlier, the Court below has erroneously placed the burden of proof upon the
revision petitioner/respondent. The entire burden lies on the decree holder to show that the judgment
debtor has the means and capacity to pay the decretal amount and he has been negligence in discharging the
decretal amount and mere oral evidence on the part of the decree holder to the effect that the judgment-
debtor is having sufficient means to pay the decretal amount is not quantum sufficit and quantum
placet, so as to invoke the provisions of Section 51 and Order XXI, Rule 37 of the Code of Civil Procedure.
17. Even at the risk of jarring repetition the Court would like to point out that the
respondent/petitioner has virtually failed to prove that the revision petitioner/respondent is having sufficient
means to pay the amount mentioned in the execution petition and since the respondent/petitioner has failed
to discharge his liability, it is needless to say that the order of arrest made by the Court below is totally
against law and the same needs interference.
18. In view of the foregoing elucidation of both the factual and legal aspects, this Court has found
sufficient force in the argument advanced by the learned counsel appearing for the revision
petitioner/respondent and altogether the order in question passed by the Court below is liable to be set
aside.
19. In fine, this civil revision petition is allowed without costs. The order dated 10.10.2002 passed
in Execution Petition No.243 of 2001 in C.C.No.72 of 2000 is set aside and the execution petition is
dismissed. Consequently, connected C.M.P.No.6365 of 2003 is closed.
Revision allowed.

[2008 (1) TNCJ 138 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE :
A. SELVAM, J.
N. S. GOVINDARAJAN ….Petitioner
Versus
BAVANI BAI AND OTHERS ….Respondents
[C. R. P. NPD. No.90 of 2004 and M. P. Nos.1 and 2 of 2007, decided on 1 October, 2007]
st

Tamil Nadu Buildings (Lease and Rent Control) Act, 1960— Section 10 (2) (i), 10 (2) (ii) (b)
and 10 (3) (a) (iii)—Eviction—Default in payment of rent—Application allowed on ground of default
in payment of rent—Appellate Court found tenant using building different than allowed to use—
Hence this appeal by tenant—Held, though tenant deposited rent after filing of petition but that
will not mean that he was not defaulter—Further user was also charged—Hence, Courts below
rightly allowed eviction application and no interference warranted with concurrent finding.
(Para 13, 16, 22 and 23)
Case law.—1996 (2) LW 525; 1991 (15) LW 231; 1999 (1) CTC 221; 1972 (2) MLJ 44; 1986 (1)
MLJ 16; 2005 (5) SCC 144— referred.
Counsel.—Mr. S. Parthasarathy Senior Counsel for Mr. T.R. Rajaraman, for the petitioner; Mr. S.
Subbiah, for the respondents.
JUDGMENT
A. SELVAM, J.—The concurrent orders passed in Rent Control Original Petition No.4 of 1993 and
in Rent Control Appeal No.33 of 1998 by the Rent Controller (Principal District Munsif Court), and by the
Rent Control Appellate Authority (Principal Subordinate Court), Madurai, respectively, are now under
challenge.
2. The respondents herein as petitioners have filed the present petition under Section 10(2)(i), 10(2)
(ii)(b) and 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960, wherein the
present revision petitioner has been shown as the respondent/tenant.
3. It is averred in the petition that the petitioners are the owners of the demised premises and the
respondent has been enjoying the same for monthly rental of Rs.850/- and the same should be paid
according to English calendar month. The respondent is a chronic defaulter in paying monthly rents and he
has shown supine indifference and callousness in payment of rent. The respondent has committed
wilful default in paying monthly rents from February 1992 to May 1992. The petitioners have sent a
letter dated 02.06.1992 to the respondent and thereby directed him to pay arrears of rent. Despite of the
said letter, the respondent has continued his wilful default. The respondent has committed wilful default in
paying monthly rents from July 1992 to December 1992. The respondent has taken the demised
premises only for the purpose of running printing press and now he is doing film distribution business in
the demised premises and thereby violated the condition of lease. The petitioners are doing stationery
business at Door No.36 East Chithirai Street, Madurai-1 and now the demised premises is required for their
own use and occupation, and under the said circumstances, the present petition has been filed.
4. It has been contended that on the side of the respondent that the respondent has taken the
demised premises for non-residential purpose and he has agreed to give monthly rental of Rs.450/-. It is
false to say that the monthly rental is Rs.850/-. It is also equally false to say that the respondent has
committed wilful default in paying monthly rents from July 1992 to December 1992. It is also equally false
to say that the demised premises is required for the own use and occupation of the petitioners. The
respondent has not changed his business and there is no merit in the petition and the same deserves
dismissal.
5. On the basis of rival contentions raised by either party, the Rent Controller has allowed the
petition on the grounds of different user. Against the order passed by the Rent Controller, the respondent
as appellant has preferred Rent Control Appeal No.33 of 1998 on the file of the Rent Control Appellate
Authority (Principal Subordinate Court), Madurai. The Rent Control Appellate Authority after
reappraising the evidence, has allowed the appeal on the ground of wilful default. Against the concurrent
orders of eviction passed by the Authorities below, the present civil revision petition has been filed.
6. Before perpending the rival submissions made by either counsel, it has become indefeasible to
look into M.P.No.2 of 2007. On the side of the revision petitioner, M.P.No.2 of 2007 has been filed under
Order XLI, Rule 27 of the Code of Civil Procedure, praying to receive rental agreement dated 21.07.1990
as additional document. On the side of the respondents, a detailed counter has been filed, wherein it has
been specifically stated that M.P.No.2 of 2007 is not maintainable.
7. As adverted to earlier, along with M.P.No.2 of 2007, rental agreement dated 21.07.1990 has been
filed and this Court has perused the same and the same has come into existence betwixt the parties. The
said rental agreement has been entered into for a period of 24 months, but the same has not been registered
as per Section 107 of the Transfer of Property Act. Since the said document has not been registered as per
Section 107 of the Transfer of Property Act, the same cannot be admitted. Therefore, M.P.No.2 of 2007
deserves dismissal and accordingly is dismissed.
8. The present petition has been filed on three grounds viz., (a) wilful default; (b) different user; and
(c) for own use and occupation. The Rent Controller has ordered eviction on the ground of different
user, but the Rent Control Appellate Authority has set aside the said finding and ordered eviction on the
ground of wilful default.
9. The learned senior counsel Mr.S.Parthasarathy has advanced a wee bit specious argument to the
effect that the revision petitioner has tried to pay monthly rents from July 1992 to December 1992, but the
first petitioner has gone to Kerala for getting treatment and due to that the revision petitioner has not been
able to pay monthly rents from July 1992 to December 1992 and the same cannot be construed as wilful
default and after filing the petition, he has given entire arrears of rent and therefore, the Court cannot come
to a conclusion that the revision petitioner has committed wilful default in paying monthly rents and
the Rent Controller has rightly negatived the ground of wilful default, but the Appellate Authority has
erroneously found that the revision petitioner has committed wilful default and therefore, the conclusion
arrived at by the Appellate Authority is liable to be set aside.
10. In support of his contention, he has drawn the attention of the Court to the decision reported in
1996 (2) LW 525 (Abdul Hameed v. M.Sultan Abdul Kader) wherein this Court has held that the payment
of 12 months defaulted rent at the first hearing, and plea by tenant that landlord was receiving rent paid in
lump sum for 4 to 6 months, plea accepted and the eviction order is set aside.
11. In order to remonstrate the argument advanced by the learned senior counsel appearing for the
revision petitioner, the learned counsel appearing for the respondents has ingeniously contended that the
revision petitioner has committed wilful default in paying monthly rents from February 1992 to May
1992 and the first petitioner has sent a letter dated 02.06.1992 to the revision petitioner and thereby directed
him to pay arrears of rents and despite of letter dated 02.06.1992, the revision petitioner has failed to pay
monthly rents from July 1992 to December 1992 and therefore, he has committed clear wilful default
and further, the agreed rent is Rs.850/-, but the revision petitioner has paid only arrears of rent on the basis
of monthly rental of Rs.450/- and therefore, the revision petitioner has committed a clear wilful
default and the Rent Control Appellate Authority has clearly found that the revision petitioner has
committed wilful default and therefore, there is no inkling nor vantage to interfere with the finding given
by the Rent Control Appellate Authority and under the said circumstances, the present civil revision
petition deserves dismissal.
12. In support of his contention, he has drawn the attention of the Court to the following decisions;
(a) The first and foremost decision is reported in 1991(15) LW 231 (Reethalammal v.
K.Arumugham Pillai and others) wherein this Court has held that failure to pay rent in
spite of notice, amounts to wilful default.
(b) The second decision is reported in 1999(1) C.T.C. 221 (T.Easwara Rao v. N.E.Ansari
(dead) and six others) wherein this Court has held that merely because tenant deposits
arrears of rent on first date of hearing, it cannot be said that landlord cannot sustain
petition for eviction if it is otherwise established that tenant committed wilful default in
payment of rent.
13. In the instant case, as rightly pointed out by the learned counsel appearing for the respondents
that on 02.06.1992, Ex.P1, notice has been issued to the revision petitioner and thereby directed to pay
arrears of monthly rents accrued from February 1992 to May 1992. Even after receipt of the said notice,
the revision petitioner has failed to pay arrears of monthly rents from July 1992 to December 1992.
Therefore, it is very clear that the revision petitioner has committed wilful default and he has been shown
supine indifference and callousness in paying monthly rents.
14. At this juncture, the Court has to look into the oral evidence adduced by the revision petitioner.
The revision petitioner has been examined as R.W.1. He has stated in his evidence that he has sent money
order to the tune of monthly rental of Rs.450/-. The specific contention urged on the side of the revision
petitioner is that monthly rental is only Rs.450/- and not 850/-. It has been candidly admitted on the side of
the revision petitioner that monthly rent has been fixed at Rs.450/- and for amenities, the revision petitioner
has to pay Rs.400/- and in aggregation he is bound to pay Rs.850/- per mensem. The specific stand
taken by the revision petitioner is that since the respondents have not provided amenities, he is not bound to
pay the said sum of Rs.400/- towards amenities. But, there is no worthwhile evidence to the effect that the
respondents have not provided amenities.
 15. At this juncture, the learned counsel appearing for the respondents has drawn the attention of the
Court to the decision reported in 1972 (2) MLJ 44 (Sakuntala Rajappa v. K.Kamala) wherein this Court
has held that the term ‘rent’ used in the Madras Rent Control Act, 1960 would include all payments agreed
to be paid by the tenant to his landlord for the use and occupation not only of the building and furniture but
also for rates, electricity, water and other amenities including services.
16. Therefore, it is very clear that the revision petitioner is bound to pay Rs.850/- per mensem by
way of monthly rent, but he has not done it. On that ground also the Court can very well come to a
conclusion that the revision petitioner has committed a clear wilful default in paying monthly rents.
17. The only defence taken by the revision petitioner is that he has made several attempts to pay
monthly rents from July 1992 to December 1992 and since the first petitioner has gone to Kerala for getting
treatment, he has not been able to pay the same and therefore, he has not committed any wilful default.
In fact, the revision petitioner has adduced the evidence to that effect. But, in the counter no such pleading
is available. Therefore, it is needless to say that the defence taken on the side of the revision petitioner is
nothing, but his brainwave and the same cannot be given adherence and further it has already been stated in
several places that the revision petitioner has committed clear wilful default in paying monthly rents and in
fact he has shown supine indifference and callousness in paying monthly rents. Simply because the
revision petitioner has paid arrears of rents after filing of the petition, the Court cannot come to a
conclusion that he has not committed wilful default in paying monthly rents. Therefore, it is needless to
say that the argument advanced by the learned senior counsel appearing for the revision petitioner is
nothing but hazy and the same cannot be accepted and whereas the argument advanced by the learned
counsel appearing for the respondents is really having subsisting force and further the Rent Control
Appellate Authority has rightly found that the revision petitioner has committed wilful default.
18. As adverted to earlier, the Rent Controller has allowed the petition on the ground of different
user, but the Rent Control Appellate Authority has negatived the same. Even though the Rent Control
Appellate Authority has negatived the ground of different user, the respondents/petitioners/landlords have
not preferred any revision.
19. At this juncture, the learned counsel appearing for the respondents has befittingly drawn the
attention of the Court to the decision reported in 1986 (1) MLJ 16 (M/s.Shelat Brothers represented by its
Partner, Rohitkumar v. Lodd Narendradas) wherein this Court has held that it is open to the parties to
sustain the order on grounds found against him without filing an independent proceeding.
20. Therefore, it is pellucid that the ground of different user can very well be put forth on the side of
the respondents. The contention of the respondents is that the demised premises has been let out to the
revision petitioner only for doing printing business and now, he is doing film distribution business. But,
the said aspect has been candidly denied on the side of the revision petitioner. At this juncture, it would be
more useful to look into the evidence adduced by the revision petitioner. He has stated in his evidence that
he is doing film business under the name and style of “Manikkavinayagar Film” and he has given paper
publication on 10.05.1997 to that effect and in the said paper publication Telephone No.623353 has
been given. Further he has candidly admitted in his evidence that the said Phone number is related to the
demised premises. Further he has stated in his evidence that in respect of the same film business he is
having independent bank account and the said business is at Door No.24 Anumantharayar Kovil Street.
Since the revision petitioner has given telephone number which is related to the demised premises for the
said film business, there is no incertitude in coming to a conclusion that the revision petitioner is doing his
film business in the demised premises and if really the said film business is being run in Door No.24
Anumantharayar Kovil Street, definitely he would have produced all the relevant documents so as to
disprove the contention urged on the side of the respondents, but he has not done it. Therefore, it is very
clear that the revision petitioner is doing his film business in the demised premises.
21. The learned counsel appearing for the respondents has also drawn the attention of the Court to
the decision reported in 2000 (5) SCC 44 (Jagdish Lal v. Parma Nand) wherein the Apex Court has held
that the premises in question was let out to the appellant for general merchant (readymade business)
and the setting up of a restaurant therein and serving tea and cold drinks would, in the circumstances of this
case, amount to change of user.
 22. In the instant case, as stated in many places, the demised premiss has been let out to the revision
petitioner only for the purpose of running printing press, but the revision petitioner has been doing film
business in the demised premises and the film business is not an allied business of printing business and
therefore, in view of the decision rendered by the Apex Court, the Court would safely come to a conclusion
that the revision petitioner has changed the demised premises for different user and on that ground also
he is liable to be evicted.
23. It has already been held that the revision petitioner has committed wilful default in paying
monthly rents from July 1992 to December 1992. The mere payment of arrears of rent in lump sum after
filing the petition would not cure the wilful default committed by the revision petitioner. Further it has
already been held that the revision petitioner is doing film business in the demised premises and thereby
he has committed change of user. Therefore, viewing from any angle, the present civil revision petition
deserves dismissal.
24. In fine, this civil revision petition deserves dismissal and accordingly is dismissed with costs.
The concurrent orders of eviction passed in Rent Control Original Petition No.4 of 1993 and in Rent
Control Appeal No.33 of 1998 are confirmed. The revision petitioner is directed to vacate the demised
premises within two months from today. Consequently, connected M.P.No.1 of 2007 is also dismissed.
Revision dismissed.

[2008 (1) TNCJ 144 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE :
S. ASHOK KUMAR, J.
P. THANKARAJ .…Petitioner
Versus
P. RAJAN …..Respondent
[Second Appeal (MD) No.531 of 2007 and M. P. No.1 of 2007, decided on 21st August, 2007]
Money suit—Suit for recovery of money on promissory note—Appellant took loan and signed
promissory note—Later denying taking of loan—Two contradictory written statements filed—
However from evidence finding of fact recorded that appellant borrowed money under promissory
note which was not required to registered—Hence, no interference warranted with concurrent
finding—Appeal dismissed.
(Paras 11 and 12)
Case law.—92 L. W. 372 distinguished; 1966 MLJ 406; (2002) 1 MLJ 830; 2001 (1) CTC 281—
relied on.
Counsel.—Mr. K. Srinivasan for the petitioner, Mr. K. N. Thampi for the respondent.
JUDGMENT
S. ASHOK KUMAR, J.—This second appeal is preferred by the appellant/ defendant as against the
concurrent findings of both the Courts below in decreeing the suit as prayed for.
2. The respondent/plaintiff filed the suit for recovery of money on the promissory note executed by
the defendant on 26.2.1999 after borrowing a sum of Rs.2,00,000/- promising the repay the debt on
demand with interest at the rate of Rs.3/- per hundred per month. Since the defendant had failed to repay
the amount on demand made by the plaintiff on several times, ultimately after issuing a legal notice,
instituted the suit claiming a sum of Rs.2,77,029/- with interest at 18% per annum.
3. The defendant filed a written statement stating that he received a loan of Rs.50,000/- from one
Suseela and not from the plaintiff by executing any promissory note. However, in the additional written
statement, he denied the very execution of the promissory note. It is the case of the defendant that his
signature was obtained in a blank stamp paper as well as in a plain paper on the premise that it is going to
be used in a MCOP case being filed on the death of his son. But the plaintiff has misused the said blank
stamp paper and plain paper and fabricated the suit promissory note.
 4. Before the trial Court, the plaintiff examined himself as P.W.1, besides one Selvaraj as P.W.2,
whereas, the defendant examined himself as D.W.1 and Exs.A-1 to A-3 and Ex.B-1 were marked
respectively by both the parties. The trial Court after framing necessary issues and on a consideration of
both oral and documentary evidence and the submissions of the counsel, decreed the suit as prayed for.
Aggrieved of the same, the defendant filed appeal before the first Appellate Court which also confirmed
the findings of the trial Court, by dismissing the appeal. Challenging the same, the present appeal has been
filed raising the following substantial questions of law:—
(a) Whether the Courts below are right in law in holding that Ex. A-1 is a promissory note
without considering the document as a whole?
(b) Whether the Courts below are right in not adverting the various recitals under Ex.A-1
which would clearly establish that the document is only a mortgage deed which requires
registration under Section 17-B of the Registration Act and the same is insufficiently
stamped?
(c) Whether the Courts below are correct in granting decree on the basis of Ex.A-1
demanding the interest rate contrary to the Tamil Nadu Money Lenders Act and such an
agreement is unenforceable under Section 23 of the Contract Act which is the law based
on the maxim, Pari Delicto Potior Est Conditio Possidentis (the Court will not assist a
plaintiff who has paid over in pursuance of an illegal or immoral contract)?
(d) Whether the Courts below are correct in law in not adverting to the very recital Ex.A-1
which cannot be considered as a Negotiable Instrument or promissory note especially
when it does not spell out the payment on demand?
5. Mr.K.Srinivasan, learned counsel appearing for the appellant/ defendant contended that
Ex.A-1, suit promissory note is only a simple mortgage and not a promissory note as the recitals found
therein does not fall within the definition of promissory note under Section 4 of the Negotiable
Instruments Act and both the Courts below have misinterpreted the recitals in the document as if it is a
promissory note. According to him, even though there is an additional issue as to whether Ex.A-1 is a
promissory note or debt bond, no finding has been given by the trial Court on that issue and if it is treated
as a mortgage bond, then non registration of the same would disentitle the plaintiff from marking the said
document in evidence. It is also submitted by the learned counsel that the defendant can raise inconsistent
defence to disprove the claim of the plaintiff, when the plaintiff has come to Court to enforce an illegal
contract since according to him the demand of interest at 36% is contrary to the interest rate prescribed
under the Tamil Nadu Money Lenders Act.
6. Per contra, Mr.K.N.Thampi, learned counsel appearing for the respondent/plaintiff
contended that the suit document Ex.A-1 is only a promissory note and not a mortgage as found by
the Courts below since Ex.A-1 contains the recital “on demand” as well as “unconditional offer” and the
concurrent findings of the Courts below decreeing the suit with 6% interest does not warrant any
interference by this Court under Section 100, CPC.
7. The relevant portion of Ex.A-1 document, for the purpose of interpretation whether it is and
promissory note or it is a simple mortgage, is extracted and the same runs as follows:—
“nkw;go :::Ugha;f;F E}w;Wf;F khjbkhd;Wf;F K:d;W :U:gha; tPjk; fLk; gypir xt;bthU khjKk;
nkw;goahhpk; bfhLj;J urPJ th fpa[k; mtrpag;gLk;nghJ KjYk; gypir Klf;fKz;lhapUe;jhy; mJk; nrh;j;J
xd;whff;bfhLj;J ,e;j fld; gj;jpuk; bry;byGjp th fpf; bfhs;syhk;.
8. Referring to the above, the learned counsel for the appellant relied upon the Full Bench Judgment
of this Court in Chief Controlling Revenue Authority, Pondicherry v. Mayavaram Financial Corpn., Ltd.,
reported in 92 L.W. Page 372 in support of his contention to hold that the suit Ex.A-1 document can
be construed only as an undertaking affidavit and the executant of a deed undertaking to create an express
charge over the property, that document can be only a mortgage and needs to be stamped as such.
9. Per contra, the learned counsel for the respondent relied on the Judgment in Muthu Thevar v.
Singaram reported in 1966 MLJ page 406 wherein this Court held that mere default clause in the
document did not have the effect of altering the nature of the document as promissory note, since the
language used being insufficient for that purpose. It was also laid down therein that the primary intention
of the parties should be taken note of by the Court and the default clause might or might not operate and did
not qualify the nature of a charge or bond.
10. Learned counsel for the respondent also placed reliance on the Judgment of this Court in
Samikanu Naicker v. Singamani, (2002) 1 MLJ 830, for the proposition that Section 20 of the Negotiable
Instruments Act would make it very clear that when the defendant signs and delivers to another a paper
stamped in accordance with the holder of the inchoate stamped instrument, he is entitled to fill up
the blanks and to negotiate the instrument. It is also submitted by him that when once the signature in the
promissory note is admitted, then the burden is upon the defendant to establish that he has not borrowed the
suit amount.
11. A perusal of the concurrent judgments of the Courts below would establish that the defendant
has taken inconsistent pleas both in the written statement and in the additional written statement. Though
his initial stand was that he received Rs.50,000/- from one Suseela, thus admitting his thumb impression
and execution of the promissory note and borrowal of the amount, his later stand in the additional written
statement was that he only put his thumb impression in a blank paper and blank stamped paper only to
enable the plaintiff to file necessary papers in the Motor Accident Claims Original Petition case. However,
as rightly contended by the learned counsel for the respondent, even assuming the latter stand to be the
correct one, the same has been belied by the very fact that the date of the document is 22.7.1999, whereas
the MCOP is of the year 1997 which will disprove the case of the defendant that there shall not be any
possibility of getting such signature and thumb impression during the year 1997 itself.
12. Further, the trial Court as well as the first appellate Court on the appreciation of the evidence of
P.Ws 1 and 2 and D.W.1 came to the right conclusion that the execution of promissory note and
borrowal of the loan amount has been proved by the witnesses. Further, the recitals in Ex.A-1, as extracted
above, would make it clear that there is an indication “on demand” and “unconditional undertaking”
containing in the said document which amounts to only “promissory note” and not a “simple mortgage” as
defined in Section 58 of the Transfer of Property Act as contended by the learned counsel for the
appellant. The first portion of the recital shows that on demand, the principal and interest will be paid by
the defendant and therefore, the default clause found in the second part of the recital does not have the
effect of altering the character of the document. The Full Bench decision relied on by the learned counsel
for the appellant relates to a Chit Transaction where an undertaking affidavit was given to the plaintiff,
which contained a recital containing express charge over the property, and the same was characterised by
the Full Bench as it amounts to a mortgage and needs to be stamped as such. But, such is not the case here
and therefore the said decision cannot be made applicable to the facts of the present case, which is a loan
transaction and the defendant also admits his signature and receipt of loan in his written statement. Further,
though the trial Court has not given a finding as to whether it is a promissory note or bond, the first
appellate Court has given a definite finding that the suit document is only a promissory note and not a
bond by relying on the Judgment of this Court in Mohammed Ali v. Abdul Sinab reported in 2001 (1) CTC
281. In the above circumstances, I am not inclined to interfere with this concurrent finding in this appeal.
Since it is decided that Ex.A-1 is only a promissory note, it does not require any registration under Section
17-B of the Indian Registration Act with sufficient stamp and accordingly the substantial questions of law
(a), (b) and (d) are answered against the appellant.
13. As regards the enforceability of the agreement, since the Ex.A-1 demands interest at 36% per
annum, since the plaintiff restricted his claim of interest only to 18% per annum, the Courts below have
rightly decreed the suit with 18% interest from the date of execution of the promissory note, till date of suit
and thereafter at 6% till realisation of the amount, with which concurrent finding, I do not find any
illegality and on this ground also, the appellant cannot succeed in this appeal. Therefore, substantial
question of law (c) is also answered against the appellant.
14. In the result, the Second Appeal fails and it is accordingly dismissed confirming the judgement
and decree of the first appellate Court. No costs. Consequently, connected Miscellaneous Petition is also
dismissed.
Appeal & Petition dismissed.

[2008 (1) TNCJ 148 (SC)]

 SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND D. K. JAIN, JJ.
STATE OF MAHARASHTRA …Petitioner
Versus
DATTATRAYA DIGAMBER BIRAJDAR …Respondent
[Civil Appeal No. 1000 of 2006, decided on 27 August, 2007]
th

Industrial Disputes Act, 1947—Section 10—Industrial dispute—Respondent working as daily

wager in appellants PWD—52 posts of Surveyor on contract employment created by Distt.
Commissioner of Labour—Respondent joined as surveyor—After working about 16 months posts of
surveyor abolished—According services of respondent terminated—After eight years application for
reference moved before Labour Court against appellant—Award passed in favour of
respondent by Labour Court and affirmed by High Court—Legality of—Held, respondent
voluntarily left employment of appellant and reference filed belatedly—Hence, Labour Court
and High Court erred in passing award in favour of respondent—Order set aside—Appeal allowed.
(Paras 6 and 7)
Case law.—2002 (3) SCC 25—relied on.
JUDGMENT
DR. ARIJIT PASAYAT, J.—Challenge in this appeal is to the order passed by a learned Single Judge
of the Bombay High Court at Aurangabad. The writ petition filed by the appellant was dismissed.
Challenge in the writ petition was to the Award made by the Labour Court, Aurangabad.
2. Background facts as projected by the appellant are as follows:—
Respondent was working as a daily wager as Mukadam and was being paid Rs.30/- per day in the
Public Works Division, Osmanabad, District Maharashtra since August, 1984. On 10.3.1986 the District
Commissioner of Labour, Aurangabad created 52 posts of Surveyor on contract employment. Respondent
joined as Surveyor in the office of Divisional Soil Conservation Officer with effect from 3.4.1986 on
consolidated pay of Rs.450/- per month. On 25.9.1986 the Deputy Divisional Soil Conservation Officer
transferred the respondent to Paranda with effect from 6.10.1986 to the office of Sub-Divisional and
Soil Conservation Officer, Aurangabad. On 5.8.1987 Divisional Soil Conservation Officer abolished
all the 52 posts of Surveyor engaged on various places as they were on temporary establishment.
Accordingly, service of respondent as Surveyor came to be terminated on 20.8.1987. After about eight
years, respondent submitted an application for reference in terms of Section 10 of the Industrial Disputes
Act, 1947 (in short the ‘Act’) before Deputy Commissioner of Labour, Aurangabad. It was stated
that the respondent was working in the Public Works Department, Aurangabad till 30.4.1986 when he was
orally terminated. Prayer was made for continuity of service with back wages. The Deputy Commissioner
of Labour made reference under Sections 10(1) and 12(5) of the Act to the Labour Court, Solapur for
adjudication. The Public Works Department, on receipt of the notice from the Labour Court made enquiries
about the service particulars from the office of the Sub-Divisional Soil Conservation officer. By letter dated
9.3.1995, Sub-Divisional Soil Conservation Officer, Osmanabad, informed the Sub-Divisional Engineer
that by order dated 18.3.1986 respondent was appointed as Surveyor on contractual employment, and on
25.9.1986 he was transferred to Sub-Divisional Soil Conservation Officer, Paranda. As per order of the
Commissioner, Aurangabad appointments of Surveyor on temporary establishment came to an end.
Respondent examined himself in support of his claim and exhibited 3 documents. One of the
documents purportedly indicated that the respondent worked in the Division till 31st August, 1986. An
officer of the Sub-Divisional Soil Conservation Office, Aurangabad was examined in support of the
appellant’s case. The Labour Court passed an award, inter alia, holding that (1) termination of respondent
with effect from 30.4.1986 was illegal; and (2) he was to be reinstated with back wages, i.e. 25% of the
back wages. Challenging the aforesaid order, writ petition was filed before the Bombay High Court which
was dismissed by impugned order.
3. Learned counsel for the appellant submitted that the approach of the Labour Court and the High
Court is clearly erroneous. The effect of the documents produced, i.e. Exhibits C25-C27, clearly
establishing the appointment of respondent in the Soil Conservation Department, his transfer and
ultimate termination has been lightly brushed aside by the Labour Court and the High Court. The
respondent himself admitted that in fact the details were given by the Soil Conservation Officer in the letter
dated 9.3.1995. The Labour Court has come to a conclusion that respondent had worked for more than 240
days.
4. Learned counsel for the appellant further submitted that there is no question of termination as the
respondent voluntary joined another department. According to him, the documents clearly established that
he had joined another establishment. Therefore, the claim was stale and was made after more than eight
years. The Labour Court and the High Court erroneously held that the question whether the workmen had
worked for more than 240 days or not has to be established by the employer.
5. There is no appearance on behalf of the respondent.
6. It is to be noted that in the written statement, it has been clearly stated by the present appellant
about the respondent having left the employment of the appellant’s establishment for joining
another department and ultimately being terminated from the said department. Exhibit C-25 dated
10.3.1986 is the document showing place of posting, Exhibit C-26 dated 18.3.1986 shows that respondent
was appointed and was required to join from 3.4.1986. Exhibit C-27 is the transfer order of the respondent
by order dated 25.9.1986 and the letter dated 9.3.1995 clearly shows that the respondent had joined at
Paranda at the transferred place to which he was transferred. It is crystal clear that ample material and
evidence were placed before the Labour Court to justify the stand that with effect from 3.4.1986 respondent
was not in the employment of the appellant. He himself had voluntarily left the department to join another
department. In any event, the claim was stale and was filed after about eight years of the alleged order of
termination. Labour Court and the High Court erroneously held that the burden to prove engagement of 240
days lies on the employer. The view is clearly contrary to what has been stated by this Court in Range
Forest Officer v. S.T. Hadimani, 2002 (3) SCC 25.
7. Looked at from any angle the order of the Tribunal and the Award by the Labour Court as
affirmed by the High Court cannot be maintained and are set aside.
Appeal is allowed but without any order as to costs.

Appeal allowed.

[2008 (1) TNCJ 150 (SC)]

SUPREME COURT
BEFORE:
H. K. SEMA AND LOKESHWAR SINGH PANTA
BANK OF INDIA AND OTHERS …Petitioners
Versus
T. JOGRAM ….Respondent
[Civil Appeal No. 298 of 2005 with C. A. No. 640 of 2005, decided on 2 nd
August, 2007]
Bank of India Officer Employees (Conduct) Regulations, 1976—Regulations 3 (1) and 24—
Bank of India Employees (Discipline and Appeal) Regulations, 1976, Regulation 17—Constitution of
India, Article 226—Compulsory retirement—Punishment—Charge of submission of inflated bills
—Proved—Disciplinary Authority accepted findings of Enquiry Officer and imposed
punishment of compulsory retirement—Appeal dismissed—Writ petition dismissed by single Judge
—Division Bench however upset finding—Legality of—Held, judicial review is not against
decision but against decision making process—No allegation of procedural irregularities/illegality
and no allegation of violation of principle of natural justice—High Court erred in setting aside order
of single Judge—Hence order of Division Bench set aside and restored that of single Judge.
(Paras 15 to 17)
 Case law:—(1995) 6 SCC 749; (2003) 3 SCC 605—relied on; (1998) 4 SCC 310; (1999) 1 SCC
759; (2006) 6 SCC 794; (1993) 1 SCC 445; (1996) 3 SCC 364; (2004) 11 SCC 213; (2003) 4 SCC 364 .—
referred.
JUDGMENT
H.K. SEMA, J.—This appeal preferred by Bank of India is directed against the judgment and order
dated 3.9.2004 passed by the Division Bench of the High Court of Judicature, Andhra Pradesh in Writ
Appeal No.205 of 2002, upsetting the order passed by the learned Single Judge.
2. We have heard Ms.Neha Sharma, learned counsel for the appellants as well as Mr. A.T. Rao,
learned counsel for the respondent.
3. Briefly stated the facts are as follows:—
The respondent was appointed as a clerk in the appellant-bank sometime in the year 1982. He was,
thereafter, promoted as Junior Management Officer Scale-I in 1993 and was posted to Tamilnadu. After
two years he was transferred to Hyderabad. While he was working as an officer at Secunderabad Branch
during the period from 6.1.1996 to 30.3.1998, he was on deputation to Visakhapatnam from 22.02.1997 to
25.02.1997 for mobilization of shares. He submitted bills claiming travel expenses, lodging and boarding
charges and halting allowance for the aforesaid period. It was found that the amount claimed by the
respondent was inflated. A charge memo was issued to him on 26.03.1999. The charges levelled against
him are:—
“Article I.—”You were on deputation to Visakhapatnam Branch from 22.2.1997 to 25.2.1997 for
which you submitted the TA bill on 27th February, 1997 claiming the fabricated travelling
expenses, which are far in excess of the normal conveyance. You are claimed and submitted a
lodging bill of Lodge Brindavan for Rs.500/- for two days whereas the room rent paid by you in
the said lodge Brindavan for 2 days was Rs.104/-. Thus you submitted a false bill. You had also
arranged to incorporate boarding charges of Rs.300/- in the bill issued by Lodge Brindavan
although no boarding facilities are available in the said lodge. You have also claimed halting
allowance of Rs.350/- which is in excess of the entitlement. Your aforesaid acts of claiming
false and fabricated travelling expenses, claiming false lodging charges and also claiming
excess halting allowance, if proved, shall amount to misconduct in terms of Regulation 24 of Bank
of India Officer Employees (Conduct) Regulations, 1976 inasmuch as you alleged to have
committed breach of Regulation 3(1) of the said Regulations, which reads as under:
Regulation 3 (1).—Every officer employee shall, at all times take all possible steps to ensure and
protect the interest of the Bank and discharge his duties with utmost integrity, honesty,
devotion and diligence and do nothing which is unbecoming of a Bank Officer.
Chief Regional Manager Trivandrum Region and Disciplinary Authority”
4. The respondent submitted his explanation to the charge, denying the charges. The Disciplinary
Authority appointed Chief Regional Manager, MICR Centre Hyderabad, as Enquiry Officer. The enquiry
was conducted expeditiously. The Enquiry Officer after examining the witnesses and exhibited documents
from both sides submitted his findings on 13.01.2000 holding the respondent guilty of the charges framed
against him. A copy of the enquiry report was also furnished to the respondent and after examining the
written reply by the respondent; the Disciplinary Authority accepted the findings of the Enquiry
Officer and imposed the punishment of compulsory retirement from service w.e.f. 14.7.2001. Aggrieved
thereby, he preferred Writ Petition No.14786 of 2001 questioning the impugned order of compulsory
retirement. The said writ petition was disposed of by the High Court on 20.7.2001 directing the
respondent to exhaust his alternative statutory remedy by filing an appeal under Regulation 17 of Bank
of India Employees (Discipline and Appeal) Regulations, 1976. By an order dated 30.8.2001, the
Appellate Authority dismissed the appeal of the respondent and confirmed the order of the
Disciplinary Authority.
5. Aggrieved thereby, the respondent preferred another writ petition No.18372 of 2001 questioning
the penalty of compulsory retirement. The learned Single Judge after hearing counsel on both sides and
perusing the record did not find any valid ground to interfere with the penalty of compulsory retirement and
dismissed the Writ Petition by an order dated 27.9.2001.
6. We may, at this stage quote the reasoning of the learned Single Judge while dismissing the Writ
Petition. The learned Single Judge held:
 “As long as the order passed is not in violation of rules/regulations/statutory provisions, the
enquiry cannot be set aside in a casual manner. The Judicial review under Article 226 of the
Constitution of India is open only on grounds of mala fide, arbitrariness and perversity. The writ
petitioner except stating that he is the founder of SCs, STs and OBCs Association protecting the
interest of downtrodden and that the Respondent Bank management is biased against him, has
failed to place any relevant material to substantiate his case. The administrative and disciplinary
action of the respondent bank cannot be the subject matter of review, once they followed the due
process of law. In the present case, order of compulsory retirement has been passed based on the
material available on record and on the charges levelled and proved against the petitioner and the
order impugned has been passed in the public interest, retiring him compulsorily. The order
impugned is subjective satisfaction of the respondent-Bank based on the report made available on
record. The petitioner is an officer of the respondent-Bank and it goes without saying that the
bank business, absolute devotion, diligence, integrity and honesty needs to be preserved by very
bank employee and in particular the bank officer. If this is not observed, the confidence of the
public/depositors would be impaired.”
7. We entirely agree with the reasons recorded by the learned Single Judge. The reasoning of the
learned Single Judge is in consonance with the well-settled principles of law enunciated by this Court in a
catena of decisions.
8. We dismay to notice that the Division Bench of the High Court upset the well reasoning recorded
by the learned Single Judge by re-appreciating the evidence.
9. The Division Bench of the High Court also noticed that the High Court under Article 226 would
not interfere with the findings recorded at the departmental enquiry by the Disciplinary Authority or
the Enquiry Officer as a matter of course. The High Court also recorded that the Court cannot sit in appeal
over those findings and assume the role of the Appellate Authority.
10. Having said that, the High Court summersaulted and re-appreciated the entire evidence and then
upset the well reasoning recorded by the learned Single Judge.
11. Ms.Neha Sharma, learned counsel appearing for the appellant-bank would contend that there is
no allegation of procedural irregularities or illegality or violation of statutory rules prescribing the
mode of enquiry, which would require the Division Bench of the High Court to upset the well reasoning
recorded by the learned Single Judge by way of judicial review. She would further contend that the High
Court was wrong in re-appreciating the entire evidence and that the High Court cannot sit in appeal over
the findings recorded by the Enquiry Officer and assume the role of the Appellate Authority. There is
sufficient force in this contention. In support of her contention she referred to various decisions of this
Court;
Union Bank of India v. Vishwa Mohan, (1998) 4 SCC 310, Apparel Export Promotion Council v.
A.K. Chopra, (1999) 1 SCC 759, Union of India v. K.G. Soni, (2006) 6 SCC 794, Sterling Computers Ltd.
v. M/s M & N Publications Ltd., (1993) 1 SCC 445, State Bank of Patiala & Ors. v. S.K. Sharma, (1996)
3 SCC 364, Delhi Development Authority v. UEE Electricals Engg.(P) Ltd., (2004) 11 SCC 213, Chairman
and Managing Director, United Commercial Bank v. P.C. Kakkar, (2003) 4 SCC 364.
12. Avoiding multiplicity we may note a few decisions of this Court.
13. In B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749, a three-Judge Bench of this Court
held in paragraph 12 as under:—
“Judicial review is not an appeal from a decision but a review of the manner in which the decision
is made. Power of judicial review is meant to ensure that the individual receives fair treatment and
not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the
Court. When an inquiry is conducted on charges of misconduct by a public servant, the
Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer
or whether rules of natural justice are complied with. Whether the findings or conclusions are
based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction,
power and authority to reach a finding of fact or conclusion. But that finding must be based on
some evidence. Neither the technical rules of Evidence Act nor of proof fact or evidence as
defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and
conclusion receives support therefrom, the disciplinary authority is entitled to hold that the
 delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does
not act as appellate authority to re-appreciate the evidence and to arrive at its own independent
findings on the evidence. The Court/Tribunal may interfere where the authority held that the
proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice
or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or
finding reached by the disciplinary authority is based on no evidence. If the conclusion or
finding be such as no reasonable person would have ever reached, the Court/Tribunal may
interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the
facts of each case.”
14. In the case of Regional Manager, U.P. S.R.T.C. v. Hoti Lal, (2003) 3 SCC 605, this Court
observed at p.614 SCC as under:—
“If the charged employee holds a position of trust where honesty and integrity are inbuilt
requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct
in such cases has to be dealt with iron hands. Where the person deals with public money or is
engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity
and trust-worthiness is a must and unexceptionable. Judged in that background, conclusions of the
Division Bench of the High Court do not appear to be proper. We set aside the same and restore
order of learned Single Judge upholding the order of dismissal.”
15. By now it is well-settled principle of law that judicial review is not against the decision. It is
against the decision making process. In the instant case, there are no allegations of procedural
irregularities/illegality and also there is no allegation of violation of principles of natural justice. Counsel
for the respondent tried to sustain the allegation of mala fide. He tried to assert that the respondent filed a
case against the Chief Manager of Secunderabad Branch in 1996 and the enquiry initiated against the
respondent is the fall out of mala fide. We are unable to accept the bald allegations. The allegation of mala
fide was not substantiated. It is well settled law that the allegation of mala fide cannot be based on
surmises and conjectures. It should be based on factual matrix. Counsel also tried to assert the violation of
principles of natural justice on the ground that the documents required by the respondent were not supplied
to him. From the averment it is seen that the documents, which were sought to be required by the
respondent, were all those bills submitted by the respondent himself before the authority. In these
circumstances, no prejudice whatsoever was caused to the respondent.
16. As already noticed the charge of the respondent was violation of Regulation 3(1) of Bank of
India Officer Employees (Conduct) Regulations, 1976. The Regulation require that every officer employee
shall at all times take all possible steps to ensure and protect the interest of the Bank and discharge his
duties with utmost integrity, honesty, devotion and diligence and do nothing which is unbecoming of a
Bank Officer.
17. In the view that we have taken the impugned order of the Division Bench of the High Court is
unsustainable in law. It is accordingly set-aside. The Order of the learned Single Judge is restored. The
writ petition filed by the respondent shall stand dismissed. The appeal is allowed. No costs.
18. Civil Appeal No. 640 of 2005.—In view of the order passed in Civil Appeal No.298 of 2005,
Civil Appeal No.640 of 2005 is dismissed.
Appeal No. 298 allowed & Appeal No. 640 dismissed.

[2008 (1) TNCJ 155 (Mad)]

MADRAS HIGH COURT
BEFORE:
DHARMARAO ELIPE AND S. PALANIVELU, JJ.
VARADHARAJAN REP. BY HIS POWER AGENT ...Appellant
Versus
THE LIEUTENANT GOVERNOR, UNION
TERRITORY OF PONDICHERRY & ANOTHER ...Respondents
 [Writ Appeal No. 797 of 2002, decided on 26th April, 2007]
(A) Land Acquisition Act, 1894—Sections 4, 5-A, 6 and 9—Notifications under—If passed in
the name of dead person—It would not render entire acquisition proceedings null and void.
(Para 10)
(B) Land Acquisition Act, 1894—Sections 17 and 5-A—Urgency—Invoking of—Right to
question the acquisition proceedings under Section 5-A is a substantive right.
(Para 12)
(C) Constitution of India, 1950—Article 226—Land Acquisition Act, 1894—Award under—
Passed and possession taken by Government—Courts should not exercise its writ power to quash
award.
(Para 13)
(D) Land Acquisition Act, 1894—Sections 4, 5-A, 6, 9 and 17—Award under—Possession of
the lands taken by Government on 29-3-1996—Handed over to the Police Department on the same
day—Invoking of writ jurisdiction in July, 1997—Writ petitioner has to be non-suited for the relief
claimed. (Para 15)
(E) Locus Standi—Person neither the owner nor the person interested in the acquired
properties—Not at all entitled to challenge the acquisition proceedings.
(Para 16)
Case law.—2006 (3) LW 939; AIR 1957 SC 521; (2004) 8 SCC 14; (1980) 2 SCC 471; (2004) 8
SCC 453; (2004) 13 SCC 85; AIR 2000 SC 671; 2005 (3) CTC 1; 2005 (3) CTC 691.
Counsel.—Mr. V. Raghavachari, for the appellant; Mr. K.K. Sashidharan Government Pleader
(Pondicherry), for the respondents.
Important Point
Appellant is not at all entitled to challenge the acquisition proceedings since he is neither the owner
nor the person interested in the acquired properties.
JUDGMENT
S. PALANIVELU, J.—This appeal has been directed against the order passed in Writ Petition
No.l0033 of 1997 by the learned Single Judge of this Court, dated 28.09.2001.
2. The material facts shorn off unnecessary details for the disposal of this appeal are as follows:
The Government of Union Territory of Pondicherry issued notification under Section 4(1) of the
Land Acquisition Act, 1894 in G.O.Ms.No.71, Revenue Department, dated 24.10.1994, which was
published in the Gazette of Pondicherry on 08.11.1994. It was declared that the lands belonging to one
Nagamuthu Chettiar, son of Murugalyan comprised in dry Survey Nos.l02/1A, 102/2B and 1025A/2, totally
sprawling to an extent of 0.76.34 Hectares in Plllaiyarkuppam Village of Pahur Sub Taluk, are acquired for
public purpose for the construction of Kirumampakkam Police Station and staff quarters at Pillaiyarkuppam
Revenue Village. It is also stated therein that in accordance with the provisions of Section 4(1) of the Land
Acquisition Act,1894 (Central Act, 1 of 1894) (herein afterreferred as Act), notice was given to all
whomsoever it may concern in the above said notification, it is also mentioned that under Section 17(4) of
the Act, the Administrator, Pondicherry directs that in view of the urgency of the case the provisions of
Section 5 (A) of the Act shall not apply to this case.
3. The original owner of the said properties had three sons by name Murugaiyan, Ganapathy and
Ranganathan, among whom Ganapathy is posing in this writ proceedings as Power of agent to one
Varadharajan who is one other than brother’s son of Nagamuthu.
4. On 11.01.1995, by virtue of G.O.Ms.No.7, Revenue Department of the Government of
Pondicherry issued another notification under Section 6 of the Act, declaring that the possession of the
lands may be taken on the expiry of 15 days after the date of publication of notice mentioned in Section
9(1) of the Act. It is also shown that the plan of the land is kept in the Office of the District Collector (Land
Acquisition), Pondicherry and it may be inspected at any time during office hours. It was published in the
Gazette of Pondicherry on 24.01.1995.
 5. The respondents contend that notices under Sections 9(3) and 10 of the Act were served, however
none appeared for enquiry and the award for this proceedings came to be passed on 29.11.1996. It is to be
mentioned here that the possession of the lands were taken by the Pondicherry Government as early as on
29.03.1996 as per the procedure and the same was handed over to the Police Department on the same day.
The writ petition was filed in July,1997. It is also stated that from 2003 onwards the police station in
Kirumampakkam, in the buildings constructed on the acquired lands, started functioning.
6. The contention of the appellant, assailing the acquisition proceedings is three pronged.
(i) Due notice was not sent to him to enable him to put forth his effective objection to the
land acquisition proceedings.
(ii) At the time of issuance of notification by the Government, Nagamuthu was no more and
hence it is a nullity.
(iii) There is no urgency for the acquisition of the properties so as to invoke Section 17 of the Act.
7. At the outset, the, learned counsel for the appellant would vehemently project his plea that, as the
owner of the lands the appellant did not receive any notice with reference to the land acquisition at any
point of time which will render the proceedings vitiated. In the affidavit, he has affirmed that the
properties originally belonged to Nagamuthu and thereafter to himself (appellant). Nagamuthu had
three sons by name Murugaiyan, Ganapathy and Ranganathan. The original owner Murugaiya Chettiar had
five sons, Nagamuthu, Nagalingam, Subramanian, Virappsamy and Kilachi. All the said persons passed
away. The appellant Varadharajan is son of Kilachi, for and on behalf of whom the said Ganapathy filed
the writ petition as his Power Agent. Even though the affidavit accompanied the writ petition is silent about
the manner in which Varadharajan became owner of the properties, from the order of the learned Single
Judge of this Court, it transpires that it is his contention that the property was allotted to the share of
Varadharajan on the strength of unregistered deed of partition brought about among the family
members. But the alleged unregistered partition deed has not seen the light of the day. Varadharajan has
woefully failed to produce the documents to show his ownership in the properties. In the affidavit it is
stated that Varadharajan is in possession of the property, which is supported by the certificate issued by the
Village Administrative Officer. The said certificate is available in the file which shows that in Survey
No.102, the land to an extent of 47 kuzhis belongs to Varadharajan, who has been cultivating the land and
the certificate was issued for the purpose of availing loan from Indian Bank alone. No probative value
could be attached to a certificate issued by Village Administrative Officer to ascertain the ownership of the
individual in an immovable property. While Varadharajan is unable to produce any documents, tracing
his alleged title to the properties by production of necessary documents, the certificate given by the Village
Administrative Officer will not stand for a minute’s scrutiny. It is to be noted that by means of such
certificate, title or possession of a property could not be and ought not to be decided. Further the said
certificate shows only one survey number namely 102 and other survey numbers are significantly absent.
The necessary corollary would be, the writ petitioner is an utter stranger to the property and he has no locus
standi to initiate any proceedings with regard to the lands in question, and it is strange to see Ganapathy is
standing as power of attorney to him.
8. It is the first contention of the appellant that no notice was served upon him to enable him to
effectively participate in the land acquisition proceedings. As adverted to supra, since the appellant is not at
all possessing any right or ownership over the properties acquired, no question of service of notice upon
him would arise, since the revenue records would not show his name as owner. It is stated by the
respondents that the legal heirs of Nagamuthu were served with notices properly. The learned Single Judge
while discussing this point has elaborately dealt with the aspect. It is pertinent to note that the legal heirs of
Nagamuthu Chettiar have not challenged the acquisition proceedings. Even Ganapathy, who, as son of
Nagamuthu, has initiated the proceedings on behalf of the appellant as his power of attorney, has not
moved even his little finger to question the acquisition proceedings.
9. The acquisition proceedings is also assailed by the appellant on the ground that the notifications
were issued in the name of Nagamuthu who was no more at relevant points of time and hence the
notification is a nullity.
10. The learned standing counsel for the respondents faced his argument on the strength of a
decision of Division Bench of this Court in (1) G. S. Gopalakrishnan, (2) Tmt. Rajamma, (3) M.
Krishnappa v. The Government of Tamil Nadu, rep. by its Secretary, Industries Department, Fort St.
George, Chennai and others, 2006 (3) LW Page 939. While principles laid down by the Supreme Court
have been followed, his contention that the factum of death of the owner, whose properties were acquired,
should have been brought to the knowledge of the acquiring authorities at the appropriate time and if it is
not established, it cannot be stated that the land acquisition proceedings becomes nullity. The operative
portion of the decision is as follows:
“Therefore in our considered opinion, the normal principle that proceedings against a dead
person are a nullity, cannot be imported to proceedings under the Land Acquisition Act,1894,
unless it is established that the factum of death was brought to the notice of the acquiring
authorities at the appropriate stage.“
In the above said ruling, important portion of the decision of the Constitution Bench of
Supreme Court in Smt.Lila Vati Sai v. State of Bombay, AIR 1957 SC 521 has been extracted which goes
thus:
“The fact of the petitioner’s husband was dead on the date of the order impugned has only this
effect that in so far as ‘it mentions his name as one of the persons to be served under Section 13 of
the Act should be erased from the order. But even so, it does not affect the enforceability of the
same.”
As per the above said dictum laid down by the Supreme Court, even if the notification under Land
Acquisition Act is passed in the name of dead person, it would not render the entire acquisition proceedings
null and void.
11. The next limb of contention of the appellant is that there is no urgency for invoking Section
17 of the Land Acquisition Act and there is no circumstance available to dispense with inquiry under
Section 5-A of the Act and that the respondents have not shown real urgency in this matter. The learned
counsel for the appellant garnered support from a decision of Honourable Supreme Court in Union of
India and others v. Mukesh Hans, 2004 (8) SCC 14, to strengthen his contention and the proposition of law
laid down therein is as follows:
“Section 17(4) which is an exception to the normal mode of acquisition contemplated under the
Act shows that existence of urgency or unforeseen emergency though is a condition
precedent for invoking Section 17(4), that by itself is not sufficient to direct the dispensation with
Section 5-A inquiry. It requires an opinion to be formed by the Government concerned that along
with the existence of such urgency or unforeseen emergency there is also a need for dispensing
with Section 5-A inquiry. If that was not the intention of the Legislature then the latter part of
Section 17(4) would not have been necessary and the Legislature in Section 17(1) and (2) itself
could have incorporated that in such situation of existence of unforeseen emergency Section 5-A
inquiry will be dispensed with automatically. But then that is not the language of the section.
Although it is possible in a given case that the urgency under Section 17(1) or the unforeseen
emergency under Section 17(2) itself may be of such degree that it could require the appropriate
Government on that very basis to dispense with the inquiry under Section 5-A but then there
is a need for application of mind by the appropriate Government that such an urgency for
dispensation with the Section 5-A inquiry is inherent in the two types of urgencies
contemplated under Section 17(1) and (2) of the Act.
The limited right given to an owner/person interested under Section 5-A of the Act to object to
the acquisition proceedings is not an empty formality and is a substantive right, which can be
taken away for good and valid reason and within the limitations prescribed under Section 17(4) of
the Act. Therefore, if the appropriate Government decides to take away this minimal right then its
decision to do so must be based on materials on record to support the same and bearing in mind
the object of Section 5-A.”
12. In the ruling of the Apex Court, it has been categorically stated that the right to question the land
acquisition proceedings under Section 5-A of the Act is a limited one which is given to an owner or person
interested, which is not an empty formality and is a substantive right. While coming to the facts of this case
on hand, it is already observed that the appellant is in no way connected with the property. He is neither a
person interested nor owner of the property. Hence the appellant cannot take recourse to the benefit of the
aforementioned decision. In other words, he has no locus standi to object the land acquisition proceedings
which is quite proper under the relevant provisions of the Act. The learned counsel for the appellant also
relied upon the decisions in State of Punjab and another v. Gurdial Singh and others, (1980) 2 SCC 471,
Union of India and others v. Krishanlal Arneja and others, (2004) 8 SCC 453 and Union of India and
others v. Deepak Bhardwaj and others, (2004) 13 SCC 85, for this proposition of law. However since the
appellant is not an owner, he cannot rely upon the principles laid down therein in his favour.
13. The learned Standing Counsel for the respondents would also argue that the initiation of writ
proceedings by the appellant cannot be considered for a moment, since they have been taken by him after
the award was passed in this case. It is well nigh settled principles of law that after an award was passed
and possession was taken by the Government, the Courts should not have exercised its power to quash the
award. In Municipal Council, Ahmednagar and another v. Shah Hyder Beig and others, AIR 2000 SC 671,
the Supreme Court has held as follows:
“In any event, after the award is passed no writ petition can be filed challenging the acquisition
notice or against any proceedings thereunder. This has been the consistent view taken
by this Court and in one of recent cases [C.Padma v. Dy. Secretary to the Government of Tamil
Nadu., reported in (1997) 2 SCC 627].
Similar is the view in an earlier decision of this Court in the case of Municipal Corporation of
Greater Bombay v. Industrial Development Investment Co. P. Ltd,. Reported in 1996 AIR SCW
3871: AIR 1997 SC 482 : (1996) 11 SCC 501. Incidentally, the decision last noted was also on the
land acquisition and requisition under the Maharashtra Regional and Town Planning Act, 1966
and in paragraph 29 of the report, this Court observed:
“It is well settled law that when there is inordinate delay in filing the writ petition and when all
steps taken in the acquisition proceedings have become final, the Court should be loath to quash
the notifications. The High Court, no doubt, has discretionary powers under Article 226 of the
Constitution to quash the notification under Section 4(1) and declaration under Section 6. But
it should be exercised taking all relevant factors into pragmatic consideration. When the award
was passed and possession was taken, the Court should not have exercised its power to quash the
award which is a material factor to be taken into consideration before exercising the power under
Article 226. The fact that no. third party rights were created in the case is hardly a ground for
interference. The Division Bench of the High Court was not right in interfering with the discretion
exercised by the learned Single Judge dismissing the writ petition on the ground of laches.”
14. Identical view has been taken by Division Benches of this Court in the decisions reported in
Ramalingam and others v. The State of Tamilnadu, rep. by the Secretary to The Industries Department,
Fort St. George, Chennai-600009 and others, 2005 (3) CTC 1 and S.Harshavardhan and another v. State
of Tamilnadu rep. by the Secretary to Government, Industry Department, Fort St.
George, Chennai- 600009 and others, 2005 (3) CTC 691.
15. In this case award was passed on 29.11.1996 and the possession of the lands were taken by the
Government on 29.03.1996 and the same was handed over to the Police Department on the same day. This
writ petition was filed in July, 1997. Hence on this score also the appellant has to be non-suited for the
relief claimed.
16. We have bestowed our careful consideration to the rival submission. We have also followed the
principles on the subject by the Apex Court and found that the appellant is not at all entitled to challenge
the acquisition proceedings, since he is neither the owner nor the person interested in the acquired
properties. Hence, interference with the order of the learned Single Judge of this Court is not needed. The
appeal suffers dismissal.
17. In fine, this writ appeal is dismissed. The order passed by the learned Single Judge in Writ
Petition No.l0033 of 1997 dated 28.09.2001 is confirmed. No costs.
Writ appeal dismissed.

[2008 (1) TNCJ 161 (SC)]

SUPREME COURT
BEFORE:
TARUN CHATTERJEE AND P.K. BALASUBRAMANYAN, JJ.
 KISHOR KIRTILAL MEHTA AND OTHERS ...Petitioner
Versus
LILAVATI KIRTILAL MEHTA MEDICAL TRUST AND OTHERS ...Respondents
[Civil Appeal No. 2917 of 2007 (Arising out of SLP (C) No. 10954 of 2007) with C.A. No. 2918 of 2007
(Arising out of SLP (C) No. 11202/2007 CC 5818 of 2007) and C.A. No. 5918 of 2007 (Arising out of SLP
(C) No. 11203/2007 CC No. 5819 of 2007), decided 9th July, 2007]
Civil Procedure Code, 1908—Order VI, Rule 17—Amendment of pleading—Two defendants
who were husband and son of plaintiff filed written statements and supported averments of plaint—
Contesting defendants opposed filing of written statement and sought to introduce averments,
not germane to plaint—Sought pleading in two written statements struck out—Trial Court struck
out some paragraphs—Order challenged before High Court—High Court while issuing notice
refused to stay suit or operation of order—Hence, this appeal—Held, matter pending before High
Court—Effect of staying and not staying explained—High Court requested to dispose of matter on
next fixed date—Petitioner disposed off. (Paras 12 and 13)
Case law.—AIR 1930 PC 57—referred.
JUDGMENT
P.K. BALASUBRAMANYAN, J.—Leave granted.
2. When the petitions for special leave to appeal challenging the orders of the High Court came up
for admission, the contesting respondents appeared to oppose them. So, with the consent of parties and
taking note of the limited issue that is before this Court, we are disposing of these matters finally here and
now.
3. The suit out of which these appeals arise is one filed by Mrs. Charu Kishor Mehta, the appellant,
in the two appeals arising out of Petitions for Special Leave to Appeal - CC Nos. 5818 and 5819 of 2007.
The dispute relates to the administration of a trust named Lilavati Kirtilal Mehta Medical Trust
governed by The Bombay Public Trust Act, 1950. The suit challenged a notice dated 27.4.2006 issued for
convening a meeting of the trustees on 29.4.2006 to resolve certain disputes and sought a declaration that
the resolution allegedly adopted by that meeting was illegal and void and other incidental reliefs. By an
order of this Court dated 26.3.2007 in Civil Appeal No. 1575 of 2007, the suit was directed to be taken up
and disposed of as expeditiously as possible and at least within a period of six months from that date. An
interim arrangement was also made by that order. It is the common case that pursuant to the direction of
this Court, the trial has commenced, the plaintiff examined in part, and her examination remains
incomplete, to be continued later. As of now, a witness for the plaintiff is being examined. It is also
submitted that as per the direction of this Court, the suit has to be disposed of before 26.9.2007.
4. Defendant No. 11 in the suit is the husband of the plaintiff and defendants 12 and 13 are their
children. They were impleaded by way of an amendment of the plaint. Defendant No. 11 filed a written
statement supporting the case of the plaintiff. Defendants 12 and 13 filed a joint written statement. They
also essentially supported the plaintiff. According to the contesting defendants, the written statements
filed, sought to introduce averments not germane to the plaint and seeking to widen the scope of the
controversy. They therefore, filed an application seeking to have such pleadings in the two written
statements struck out. Defendants 11 to 13 opposed that prayer. The trial Court passed an order dated
30.4.2007 striking out paragraphs 4 to 31, 35 and 36 of the written statement of defendant No. 11 and
paragraphs 4, 7, 11 and 12 from the joint written statement of defendants 12 and 13. Feeling aggrieved,
defendants 11 to 13 filed W.P. No. 4407 of 2007 before the High Court purporting to invoke Article 227 of
the Constitution of India, challenging the said order. While the High Court issued notice on the Writ
Petition returnable by 20.7.2007, it refused to stay the suit or the operation of the order dated 30.4.2007.
It is this refusal to grant an interim order of stay that is impugned in SLP (C) No. 10954 of 2007.
5. Meanwhile, the plaintiff filed an affidavit in lieu of her chief-examination in terms of Order
XVIII, Rule 4 of the Code. The contesting defendants filed an application for striking out that part of the
evidence in the affidavit, which, according to them, travelled outside the pleadings in the plaint. The
plaintiff filed an objection to that application. By order dated 13.6.2007, the trial Court accepted the plea
of the contesting defendants and struck out paragraphs 11, 21 to 25, 27 and 29 in the affidavit of
examination-in-chief filed by the plaintiff. Feeling aggrieved by that order, the plaintiff filed W.P. No.
4698 of 2007 invoking Article 227 of the Constitution of India, challenging the order of the trial
Court. Though the High Court admitted the Writ Petition and issued notice returnable on 20.7.2007, it
declined to grant a stay of trial of the suit or of the operation of the order dated 13.6.2007. Feeling
aggrieved by the refusal of the High Court to grant an interim order pending disposal of the writ petition,
the plaintiff has come up to this Court by way of petition for special leave to appeal arising out of CC No.
5818 of 2007.
6. The plaintiff, confronted with the order dated 13.6.2007 striking out a portion of her affidavit
evidence in chief-examination, moved an application for amendment of the plaint. By the proposed
amendment, she sought to add paragraphs 3(a), 3(b) as also paragraphs 7(a)(i) and 7(a)(ii) to the plaint.
The contesting defendants opposed that application on various grounds. The trial Court, by order dated
16.6.2007, dismissed the application. Challenging the said order, the plaintiff filed W.P. No. 4697 of 2007
in the High Court under Article 227 of the Constitution of India. The High Court while admitting the said
writ petition and issuing notice returnable by 20.7.2007, declined to stay the suit or the operation of the
order dated 16.6.2007. This declining to grant stay is challenged in the petition for special leave to
appeal arising out of CC No. 5819 of 2007.
7. Learned counsel for the plaintiff and defendants 11 to 13, the appellants before us,
submitted that having admitted the challenge to the orders of the trial Court, the High Court was not
justified in refusing to stay the operation of the respective orders. Counsel specifically submitted that they
were not seeking a stay of the trial of the suit but were only seeking a stay of the operation of the orders
refusing the amendment of the plaint, striking out portions of written statements of defendants 11, 12 and
13 and a part of the chief-examination of the plaintiff covered by the affidavit. Counsel submitted that if
ultimately the petitions under Article 227 of the Constitution of India filed by the plaintiff and defendants
11 to 13 challenging the orders of the trial Court are to be allowed, then during the examination of the
witnesses, all those aspects covered by the amendment and the untruncated written statement and that
covered by the chief-examination affidavit, would have to be elicited in the examination of the witnesses,
and if meanwhile the evidence is concluded, this will result in considerable confusion and the evidence will
have to be reopened, witnesses recalled and these matters covered all over again. Counsel therefore,
submitted that the operation of the relevant orders may be stayed pending disposal of the writ petitions
by the High Court. This would cause no prejudice to anyone.
8. Learned senior counsel appearing for the contesting respondents submitted that the High Court
was in error in admitting the petitions under Article 227 of the Constitution of India since the amendment
brought to Section 115 of the Code was not intended to be one opening the floodgates to enable every order
to be challenged under Article 227 of the Constitution of India. Article 227 of the Constitution of India was
concerned with correcting errors of jurisdiction and the High Court ought not to have entertained the writ
petitions filed by the plaintiff and defendants 11 to 13. The plaintiff and defendants 11 to 13, if so advised,
had an opportunity to challenge these orders in terms of Section 105(1) of the Code, in any appeal
against the decree that they may be forced to file. Counsel pointed out that in view of the proviso to Order
VI, Rule 17 of the Code introduced in the year 2002, the amendment of the plaint sought for could not be
granted in this case, since the evidence had already commenced when the application was made and there
was no extraordinary circumstance justifying the allowing of the amendment. Similarly, the orders striking
out portions of the written statements and the affidavit in chief-examination, also could not be interfered
with. It is not for us to consider these arguments at this stage and it is for the contesting defendants to raise
these contentions before the High Court wherein the orders of the trial Court are under challenge. The
High Court which is entertaining the challenge to the orders of the trial Court, we are sure, would consider
those contentions as well while it takes up the writ petitions for final disposal.
9. Learned counsel for the contesting respondents further submitted that an order of stay of the
operation of the orders impugned before the High Court would result in impediment to the trial of the suit
and such an order cannot be passed in the light of the specific directions earlier issued by this Court.
Counsel further submitted that the High Court had the jurisdiction either to grant an interim stay pending an
adjudication or not to grant it and it is not for this Court exercising jurisdiction under Article 136 of the
Constitution of India to entertain such petitions for special leave to appeal and to pass orders interfering
with the orders of the High Court. Counsel submitted that if any stay is granted by this Court that would
lead to an argument that the Supreme Court had found merit in the challenge of the plaintiff and defendants
11 to 13, to the orders of the trial Court and that would send a wrong signal. Counsel submitted that on the
facts and in the circumstances of the case, there was no reason to interfere with the orders of the High Court
refusing to grant a stay of operation of the orders passed by the trial Court.
10. It is true that it is not for this Court to interfere with each and every interim order passed by the
High Court. But, there may be occasions when this Court is called upon to step in, in its corrective
jurisdiction. But that, of course, will depend upon the facts and circumstances of a particular case and they
may be rare. While therefore we agree with the submission of learned senior counsel for the
respondents that normally this Court should not interfere with the refusal to grant a stay by the High Court
in a particular proceeding, we cannot assume the position that this Court will never do so whatever be the
circumstances. Whether an appropriate circumstance exists in this case, is another matter.
11. As far as the submission that an interim order of stay, if it were to be granted by this Court,
would influence the High Court or lead it into thinking that there is merit in the petitions filed before it by
the plaintiff and defendants 11 to 13, the same does not give enough credit to the judicial approach a High
Court has to make or to the experience and familiarity of the concerned Judge with the procedure. After
all, merely because this Court passes an order of stay in the circumstances of a case deviating from what
the High Court has done, it cannot be expected that the High Court will suddenly find merit in the matter
pending before it and it will be guided by the interim order passed by this Court. We are confident that any
High Court or any Judge trained in law will have no difficulty in understanding the scope of the order
passed by this Court and in understanding that what it or he is called upon to do, is to decide the matter on
merits uninfluenced by the fact that an interim order of stay has been granted by this Court or merely by the
reasons if any, stated by this Court in an interlocutory order in a matter that has come up before it at an
interlocutory stage. We, therefore, see no merit in the apprehension of learned senior counsel for the
contesting respondents that a grant of stay by us would send a wrong signal to the High Court. We have no
doubt that the High Court will consider the arguments of both sides on merits uninfluenced by anything we
have done here and come to its own independent conclusion on merits.
12. Now coming to the question, whether we should interfere and grant an interim order of stay of
operation of the orders refusing the amendment of the plaint, striking out portions of the written statement
of defendants 11, 12 and 13 and striking out portions of the chief-examination of the plaintiff from the
affidavit tendered in that behalf, we see no reason to stay the operation of the order refusing the amendment
of the plaint. Such order of stay would be meaningless since as of now there is no amendment of the plaint
and an amendment would come into existence only if the High Court finds it a case where interference
is called for in the light of the relevant arguments that may be raised before it. But, we think that the stay
of operation of the orders striking out portions of the written statements of defendant No. 11 and of
defendants 12 and 13 and part of the chief-examination in the affidavit tendered by the plaintiff would be
justified since in case the High Court were to accept the challenge to those orders of the trial Court, it
would mean that the witnesses will have to be recalled and questions put to them on those aspects now
struck out to cover those aspects and this would inconvenience the trial. The consequence of granting
a stay would only be that some irrelevant aspects are also covered in the examination of the witnesses. If
the High Court were to dismiss the writ petitions, those portions can always be eschewed. By and large,
which part of the evidence is to be discarded as being outside the pleadings is something that the Court
considers when it discuses the evidence. There cannot also be any doubt that no amount of evidence can be
looked into on a plea never put forward. (See Siddik Mahomed Shah v. Mt. Saran and others, AIR 1930
P.C. 57.) Therefore, at this stage, if the operation of those two orders are not stayed, it would mean that the
examination of the witnesses will cover only that portion of the plea admitted to be put forward by
defendants 11 to 13 or in the plaint, and that would cause inconvenience to the trial which has been
directed to be expedited by this Court. Merely because some more or not strictly necessary questions are
also asked either in cross-examination or in chief- examination, that cannot also prejudice the contesting
defendants since they can always plead either that a part of the evidence has to be discarded as not being
covered by the pleadings in the case or that it is irrelevant. We do not think that it is necessary at this stage
to shut out any evidence. We clarify that what part of the pleadings and what part of the evidence have to
be discarded, will have to be considered by the Court in the light of the order that may be passed by the
High Court and if that part of the evidence is covered by the pleadings that are directed to be struck out
then, obviously, that part of the evidence will have to be ignored. So will be the fate of the evidence that
might be tendered which is not covered by the pleadings in the plaint. Obviously, the question whether
defendants 11, 12 and 13 can enlarge the scope of the suit will also have to be considered both by the High
Court while dealing with the issue and by the trial Court when it deals with the suit finally. Suffice it to say
that in order only to ensure that there is no possibility of a truncated trial, we stay the operation of the
orders striking out portions of the written statement of defendants 11, 12 and 13 and portions of the
affidavit tendered in chief-examination by the plaintiff. We make it clear that what part of the written
statement of defendant No. 11 and of defendants 12 and 13 and what part of the evidence are to be ignored,
are matters that will depend upon the decision to be rendered by the High Court in the matters pending
before it and to be considered by the trial Court when it finally disposes of the suit and if its order were to
be upheld by the High Court, to be consistent with the order it has already passed.
13. At the same time, we think it necessary to clarify that the trial of the suit will go on and there
will be no impediment to it. We find that the High Court has posted the matter on 20.7.2007 and all parties
agreed before us that they will be ready to argue the matter that day. We request the High Court to ensure
that the writ petitions covering such simple issues, be taken up on 20.7.2007 itself and disposed off in
accordance with law immediately.
14. The orders of the High Court are thus slightly modified and the appeals are disposed off with
the above direction. The parties are directed to suffer their respective costs.
Appeals disposed off.

[2008 (1) TNCJ 166 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE:
T. SUDANTHIRAM, J.
SANTHANAPITCHAI FERNANDO & OTHERS ...Petitioners
Versus
THE COMMISSIONER, TUTICORIN MUNICIPALITY ...Respondent
[Cri. O.P. (MD) No. 15330 of 2004 and Cri. M.P. No. 5396 of 2004, decided on 13th July, 2007]
District Municipalities Act, 1920—Sections 216 (2), 216 (3), 317(b), 338, 338(a) and 347—
Complaint—Whether barred by limitation—Notice dated 26.4.2002 served—Non-compliance of—
Confirmation order dated 4.6.2002—Served on 19.12.2002—Three days’ time would come into effect
only after the order is served on the person and definitely not from the date of the order passed—No
material on record to show the order dated 4.6.2002 was served on the person on 19.12.2002—An
opportunity needs to be given to the complainant—Liberty given to raise the plea of bar of limitation
during the trial—Trial Court to decide the date on which the order under Section 216(3) of the Act
was served to the petitioner and to calculate the period of limitation. (Paras 8
to 10)
Counsel.—Mr. S. Subbiah, Advocate for the petitioners; Mr. S. Srimathi, Advocate for the
respondent.
Important Point
Three days’ time would come into effect only after the order is served on the person and
definitely not from the date of the order passed. While so, on the failure to comply the final order, the
date of commencement of the offence is only three days after serving the order under Section 216(3) of the
District Municipalities Act, 1920.
JUDGMENT
T. SUDANTHIRAM, J.—The petitioners have filed this petition seeking to quash the proceedings in
S.T.C.No.1604 of 2005 on the file of the learned Judicial Magistrate No.1, Tuticorin.
2. The respondent herein has filed a complaint against the petitioners herein for the offence under
Sections 216(3) and 317(b) of the District Municipalities Act, (V of 1920). (Hereinafter referred as
Act).
 3. Mr.S.Subbiah, learned counsel appearing for the petitioners contended that that the complaint is
barred by limitation under Section 347 of the Act. The learned counsel pointed out Section 347 of the Act
which reads as follows:
“Persons empowered to prosecute.—Save as otherwise expressly provided in this Act, no
Court shall take cognizance of any offence against the provisions of this Act, or of any rule, or by-
law made under it unless complaint is made by the police, or the [executive authority] or by a
person expressly authorised in this behalf by the council or the [executive authority] within three
months of the commission of the offence. But nothing herein shall affect the provisions of the
Code of Criminal Procedure, (1898) in regard to the power of certain Magistrates to take
cognizance of offences upon information received or upon their own knowledge or suspicion:
Provided that failure to take out a licence, obtain permission or secure registration under this Act
shall, for the purposes of this section, be deemed continuing offence until the expiration of the
period, if any, for which the licence, permission or registration is required and if no period is
specified, complaint may be made at any time within twelve months from the commencement of
the offence.”
4. The learned counsel for the petitioners submitted that the offence was allegedly committed on
22.01.2002 and the alleged report was given to the Office of the respondent on 26.04.2002. As such, the
complaint ought to have been filed and the cognizance ought to have been taken on or before 25.04.2003.
But, the present complaint is filed only on 20.06.2003 and therefore, it is barred by limitation.
5. The learned counsel for the respondent submitted that though the notice was given on
26.04.2003, it was only a show-cause notice as contemplated under Section 216 of the Act. Section 216(2)
and 216(3) reads as follows:
“216(2): The Executive Authority shall serve a copy of the provisional order made under sub-
section (1) on the owner of the building or well together with a notice requiring him to
show cause within a reasonable time to be named in such notice why the order should not
be confirmed.
216(3): If the owner fails to show cause to the satisfaction of the executive authority, the
executive authority may confirm the order with any modifications he may think fit to
make, and such order shall then be binding on the owner.”
6. The learned counsel submitted that the notice under Section 216(2) dated 26.04.2002 of the Act
was served on the petitioners and as the petitioners did not comply with the conditions, the confirmation
order under Section 216(3) of the Act, dated 04.06.2002 was served on the petitioners only on 19.12.2002
and therefore, the limitation period has to be calculated only from 19.12.2002, the date on which the
confirmation order was served on the petitioners.
7. The learned counsel for the petitioners submitted that even as per the confirmation order dated
04.06.2002, the complaint ought to have been filed either on or before 03.06.2003. The learned counsel for
the respondent submitted that in the complaint filed, in column 7 which is for mentioning the nature of the
offence and the date, the date is mentioned only as 22.12.2002. The learned counsel for the respondent also
submitted that the file contains particulars with regard to the date of confirmation order being served on the
petitioners.
8. This Court has gone through the copy of the complaint filed against the petitioners and also the
typed set of papers filed by the petitioners which contains the copy of the show-cause notice issued by
the respondent dated 04.06.2002. As per Section 347 of the Act, the offence in this case is deemed as the
continuing offence. The complaint ought to have been made within twelve months from the
commencement of the offence. As per Section 216(3) of the Act, the confirmation order is dated
04.06.2002. But, the date mentioned in column 7 of the complaint is only 22.12.2002. It can be definitely
said that the period of limitation does not commence from the date 26.04.2002 which is mentioned in
the provisional order made under Section 216(2) of the Act.
9. The next question is whether the date 04.06.2002 is to be taken into account or 19.12.2002 is to
be taken into account for the commencement of the period of limitation is to be analysed. The confirmation
order dated 04.06.2002 gives three days’ time for complying the condition as per Section 338(a) of the Act.
Section 338 and 338(a) of the Act reads as follows:
 “338. Consequence of failure to obtain licences, etc., or of breach of the same.—If, under this
Act, or any rule, by-law or regulation made under it, the licence or permission of the
council or executive authority or registration in the municipal office is necessary for the
doing of any act, and if such act is done without such licence or permission or
registration, or in a manner inconsistent with the terms of any such licence or permission,
then—
(a) the executive authority may by notice require the persons so doing such act to alter,
remove, or, as far as practicable, restore to its original state the whole or any part of any
property, respondent immovable, public or private, affected thereby within a time to
be specified in the notice and further.”
Therefore, this three days’ time would come into effect only after the order is served on the person
and definitely not from the date of the order passed. While so, on the failure to comply the final order, the
date of commencement of the offence is only three days after serving the order under Section 216(3) of the
Act. Though no material is furnished along with the complaint to show the order passed under Section
216(3) of the Act dated 04.06.2002 was served on the petitioner on 19.12.2002, an opportunity has to be
given to the complainant/respondent herein. It is for the trial Court to decide the date on which the order
under Section 216(3) of the Act was served to the petitioners and thereby, to calculate the period of
limitation. It is not possible at this pre-mature stage to reject the submissions made by the learned
counsel for the respondent that the order passed under Section 216(3) of the Act dated 04.06.2002 was
served on the petitioner only on 19.12.2002.
10. In view of the above said observations, the contention of the learned counsel for the petitioners
that the complaint is barred by limitation is not acceptable. Anyhow, it is open to the petitioner during the
trial on the basis of the evidence to contend that the complaint is barred by limitation.
11. In the result, the criminal original petition is dismissed. Consequently, connected miscellaneous
petition is also dismissed.
Petition dismissed.

[2008 (1) TNCJ 169 (Mad)]

MADRAS HIGH COURT
BEFORE:
S. PALANIVELU, J.
PALANIAPPA GOUNDER & ANOTHER ...Appellants
Versus
TAMIL NADU STATE TRANSPORT CORPORATION
LTD. REP. BY ITS M.D. ...Respondent
[C.M.A. N.P.D. No. 926 of 2002, decided on 21st July, 2007]
Motor Vehicles Act, 1988—Section 173—Motor accident—Compensation against death—
Award of Rs. 1,50,000/-—Legality of—Taking into account the principle laid down in IV (2005)
A.C.C. 15(SC), multiplier of 15 has to be adopted by considering notional income of Rs. 15,000/ p.a.
—Total compensation comes to Rs. 2,25,000/-—To be made available to the claimants—Appeal
allowed—Direction issued accordingly.
(Paras 5 and 6)
Case law.—IV (2005) ACC 15 (SC).
Counsel.—Mr. S. Kaithamalai Kumaran for the appellants, Mr. P. Jagadeesan for the respondent.
JUDGMENT
S. PALANIVELU, J.—On 24.8.2000 at about 00.45 hours on the KNK Road, Erode in front of Vimal
Tailor Shop the deceased was riding a TVS 50 bearing registration No. TN—38-2281 on the extreme left
side of the road. The bus bearing registration No.TN-27-N-1202 belonging to the respondent corporation
was driven in a rash and negligent manner and dashed against the moped causing death of the
deceased.
2. There is no demand before this Court with regard to fixing of negligence upon the driver of
the transport corporation.
3. While coming as regards quantum of compensation awarded by the Tribunal, the learned counsel
for the appellant submitted that though there was a claim for a sum of Rs. 10 lakhs, the Tribunal has
awarded only a sum of Rs. 1,50,000/- as consolidated compensation which is not at all legally tenable. He
further submitted that the deceased was a bachelor aged about 29 years and he was working as a Manager
in Sri Sabari Textiles and earning a sum of Rs. 5,000/- per month. The claimants have filed Exs.A-5 to A-
12 documents to substantiate their contentions with regard to the income drawn by their son deceased.
After considering the oral evidence on record, the learned Judge of the Tribunal has come to the conclusion
by fixing the annual income of the deceased at Rs. 24,000/- and since the claimants were aged about 55 and
50 years respectively at the time of the accident, considering the age and status of the deceased also,
awarded consolidated compensation of Rs. 1,50,000/-.
4. In this connection, the principle laid down by the Honourable Supreme Court, in the decision
reported in Manju Devi v. Musafir Paswan, IV (2005) ACC 15 (SC), is that multiplier of 15 has to be
adopted, by considering the notional income of Rs. 15,000/- per annum. The law formulated by the Hon’ble
Apex Court is as follows:—
“ In the case of U.P. State Road Transport Corporation v. Trilock Chandra, I (1996) ACC 592
(SC) : 1996 ACJ 831 (SC), it has been held by this Court that there should be no departure from
the multiplier method on the ground that payment being made is just compensation. It has been
held that the multiplier method must be accepted method for determining and ensuring payment
of just compensation as it is the method which brings uniformity and certainty to awards made all
over the country. In view of this authority, it will have to be held that the award of compensation
had to be made by the multiplier method.
As set out in the Second Schedule to the Motor Vehicles Act, 1988, for a boy of 13 years of age, a
multiplier of 15 would have to be applied. As per the second schedule, he being a non-earning
person, a sum of Rs. 15,000/- must be taken as the income. Thus, the compensation comes to Rs.
2,25,000/-.”
5. Following the above guidelines laid down by the Supreme Court, in this case also, the notional
income of the deceased is fixed at Rs. 15,000/- and adopting the multiplier of 15, the total compensation of
Rs. 2,25,000/- has to be made available to the claimants. In fine, the appeal is allowed by making the
payment of total compensation for a sum of Rs. 2,25,000/- payable by the respondent herein to the
appellants.
6. The appeal is allowed. No costs. The respondent has to deposit the enhanced compensation of Rs.
75,000/- along with interest at the rate of 7.5% from the date of claim petition, within a period of six weeks
from the date of receipt of a copy of this order. On such deposit, the appellants are at liberty to withdraw a
sum of Rs. 25,000/- and a sum of Rs. 50,000/- respectively towards their share in respect of enhanced
compensation.
Appeal allowed.

[2008 (1) TNCJ 171 (Mad)]

MADRAS HIGH COURT
BEFORE:
S. PALANIVELU, J.
NEW INDIA ASSURANCE COMPANY LTD., CHENNAI ...Appellant
Versus
SUNDERARAJAN & ANOTHER ...Respondents
[C.M.A. No. 680 of 2002, decided on 18 July, 2007]
th
 Motor Vehicles Act, 1988—Section 173—Compensation—Award of Rs. 30,300/- for the
injuries sustained by claimant—Legality of— Accident took place at 08.15 a.m. on 17.10.1997—
Policy is effective from 10.30 a.m. on 17.10.1997 to midnight of 16.10.1998—Owner of the vehicle
deliberately concealed the factum of accident which had already taken place—Insurance company is
not liable to indemnify the vehicle the vehicle owner in the case of suppressing the material fact while
taking the policy—Direction of Tribunal modified to the effect that compensation of Rs. 30,300/-
fixed by Tribunal to be paid by the owner of vehicle—Further exemplary cost of Rs. 25,000/-
imposed on owner of the vehicle.
(Paras 6, 11 and 12)
Case law.—2005 A.C.J 1103.
Counsel.—Mr. R. Vedantham for the appellant; No appearance for the respondents.
Important Point
When there is no insurance coverage for the relevant time of accident, the insurance company
would not, in any event be fastened with liability of paying compensation to the claimant.
JUDGMENT
S. PALANIVELU, J.—Insurance Company has filed this appeal, aggrieved over the award, made in
MACT O.P. No. 2219 of 1998, on the file of Motor Accident Claims Tribunal (IV Judge, Court of Small
Causes), Chennai, awarding a sum of Rs. 30,300/- for the injuries sustained by first respondent.
2. When this matter came up for hearing on two occasions, there was no representation for the
respondents. Hence, the matter was directed to be posted today for orders.
3. Claimant, first respondent herein, lodged a complaint with regard to the accident. He had stated
therein that on 17.10.1997 at about 08.15 a.m., while he was going on a Sunny scooter, bearing registration
No. TN 09 X 7209 with his daughter-in-law as a pillion rider along M.M.D.A. Colony in Arumbakkam, a
van, bearing registration No. TSL 3507, driven by its driver in a rash and negligent manner, came from
behind and dashed against the said two-wheeler, causing injuries to the duo.
4. As far as the negligence on the part of the driver is concerned, it has been established before the
Tribunal by a circumstance that he admitted the offence before a criminal Court and paid a fine of Rs.
750/-.
5. The award receives a scathing attack from the side of the appellant, contending that at the time of
accident, the van, belonging to second respondent, was not at all under insurance coverage with the
appellant.
6. The accident took place at 08.15 a.m. on 17.10.1997. It is worthwhile to note that after a span of
just about 2 ¼ hours i.e., at 10.30 a.m. on the same day, the vehicle was insured with the appellant by
second respondent, to wriggle out from the responsibility of paying compensation to the claimants.
7. Ex.R-1, insurance policy, was produced by the appellant insurance company before the
Tribunal and it is a sorry state of affair to note that the Tribunal had not even referred to the presence of
Ex.R-1 in case records. It woefully failed to appreciate the documentary piece of evidence, very much
available in case bundle. The said document Ex.R-1 was marked and proved through R.W.1, who was
Assistant Manager in the appellant company. When Ex.R-1 was produced before the Court, it was
incumbent upon the second respondent/owner of the vehicle to put forth his contention with regard to
the aspect that at the time of accident i.e., at 08.15 a.m. on 17.10.1997, his vehicle was under insurance.
But, he ignored both the forums viz., the Tribunal and this Court conveniently, attempting to shift the
responsibility on the appellant.
8. It is not out of place to mention here that in Ex.R-1, it is stated that policy is effective from 10.30
a.m. on 17.10.1997 to midnight of 16.10.1998.
9. While referring to the above said feature, learned counsel for the appellant draws attention of
this Court to a Division Bench decision of this Court in National Insurance Co. Ltd. v. N. Ponnaiyan and
others, 2005 ACJ 1103, wherein, it is held as follows:
“6. We have already referred to the fact that in Exh. R-2, insurance policy, it is specifically
mentioned that the policy shall come into effect on 12.07.1991 from 7.15 p.m. onwards.
In such a circumstance, in the light of the specific reference to the time, as
interpreted by the Supreme Court in the above referred decision, we hold that as per the
 insurance policy Exh. R-2, the coverage would be operative from that time i.e., 7.15 p.m.
and not from the previous midnight as observed and stated in earlier decisions.
Accordingly, insurance company cannot be mulcted with liability as ordered by the
Deputy Commissioner. Consequently, the contrary conclusion arrived at by him
directing the insurance company to deposit the compensation is liable to be set aside.”
10. From the above said decision, it is crystal clear that when there is no insurance coverage for the
relevant time of accident, the insurance company would not, in any event, be fastened with liability of
paying compensation to the claimant. The attitude of the Tribunal, in this regard, is highly deprecated.
11. At the time of making a proposal for insurance, owner of the vehicle knew full well that the
accident already took place and deliberately concealed the factum of accident. As such, the non-disclosure
of material fact has rendered the policy void ab initio. The insurance company is not liable to indemnify the
vehicle owner in the case of suppressing the material fact, while taking the policy. The vehicle owner, after
receiving information about the accident, in order to escape from the responsibility of making good the loss
to the claimant, immediately rushed to the insurance company and took a policy. While resorting to
this nature of attitude by a vehicle owner, the Court has to come down heavily.
12. Therefore, award passed by the Tribunal is modified to the effect that the compensation of Rs.
30,300/- fixed by the Tribunal is directed to be paid by the owner of the vehicle/second respondent with
costs. In addition to cost of this appeal, second respondent, is also directed to pay exemplary costs of Rs.
25,000/- to the appellant, within a period of eight weeks from the date of receipt of a copy of this order.
13. Appeal is allowed on the above lines.
Appeal allowed.

[2008 (1) TNCJ 173 (Mad)]

MADRAS HIGH COURT
BEFORE:
S. PALANIVELU, J.
V.P. THANGAVEL & ANOTHER ...Appellants
Versus
MANIMEGALAI ...Respondent
[C.M.A. No. 699 of 2002, decided on 6 July, 2007]
th

Motor Vehicles Act, 1988—Section 173—Compensation—Quantum of—Assessment of—

Disability certificate establishes 90% disability—But Tribunal has fixed 70%—Claimant a vegetable
vendor—Rs. 2 lakhs fixed towards loss of income—Rs. 1 lakh awarded towards medical expenses
taking into account the fact that she had been under medical treatment for a long time—Tribunal
awarded Rs. 40,000/- towards pain and suffering—And Rs. 1,50,000/ for permanent disability—
Permanent disability and future loss of income should have been calculated under one head—Both
aspects Rs. 1,50,000/- and Rs. 2,00,000/- have been awarded—Total comes to Rs. 3,50,000/- to be
awarded under such head—Taking into account the manner of accident, pain and sufferings,
medical treatment as well as future sufferings and difficulties in her life—Award needs no
interference. (Paras 5 and 6)
Counsel.—Mr. P. Sukumar for the appellants.
JUDGMENT
S. PALANIVELU, J.—This appeal is filed by the Insurance Company against the award dated
26.2.2001 made in MACTOP. No. 459 of 1999 on the file of the Motor Accidents Claims Tribunal, (Sub-
Court), Chidambaram, awarding a sum of Rs. 5,77,000/- for the injuries sustained by the respondent.
2. On 9.8.1999, at about 2.00 p.m., while the respondent/claimant was returning back after selling
vegetables in Siluvaipuram Bus Stand for a bus, the two-wheeler belonging to the first appellant dashed
against her causing serious injuries. With regard to the manner of accident and the fixing of liability upon
the first respondent and the insurance company, there is no debate. There is no infirmity with regard to the
findings of the Tribunal and the factors regarding the accident.
3. The learned counsel for the appellants very much assails the quantum of compensation arrived at
by the Tribunal by vehemently arguing that it is excessive and it does not conform to the settled legal
principles. Ex. P3 is the wound certificate issued to the respondent, which shows that she was in-patient
from 9.8.1999 to 23.2.2000 in the Government Hospital. The observations contained in the above said
certificate and the injuries reads as follows:-
“ 1. Tenderness in Dorsal Spine-Burst D11 with palparms, X-ray dorsal spine AP Lat.
2. Tender Pelure susperior and inferior and left side.
3. Contusion left eye.
4. Cervical spine tenderness-Loss of cervical AP Lat. X-ray cervical.”
Ex.P.5 is the sonogram report. Before the Tribunal, the respondent has deposed that she sustained
fractures in her pelvis, spinal cord, injuries on her head and bleeding occurred in her ear, nose and she felt
impairment in vision in her right eye and numbness in both the legs, afterwards, without control she had to
pass urine and motion. She was admitted to the Annamalai University Medical College Hospital.
4. The doctor/P.W.2 examined the respondent and issued the disability certificate stating that she is
suffering from permanent disability to the tune of 90% and further adding that she could not move her both
legs, that she is unable to sit, walk or stand on her own accord, that she is passing urine without any control,
that on a perusal of X-ray, she was able to find mal-union in cervical bone No.11, which is found with pus.
The doctor further opined that due to the injuries she could not walk in her future since her entire nervous
system has been affected, for such reason, passing of urine is uncontrollable, which will lead to
contamination and that she has to undergo proper treatment and to take proper nourishment.
5. Considering the circumstances, the Tribunal has fixed the permanent disability at 70% even
though Ex.P12 disability certificate goes to the effect that it is 90%. The claimant was a vegetable vendor
and was earning about Rs. 4,000/- per month, towards loss of income, the Tribunal has fixed Rs. 2 lakhs
and considering the medical expenses, she is entitled to Rs. 1 lakh even though no medical bills have been
produced, considering the long treatment, she has taken. The Tribunal has also awarded Rs. 50,000/- on the
strength of Ex.P11; for transport expenses Rs. 2,000/- has been awarded; for extra nourishment, the
Tribunal has allowed Rs. 5,000/-. Since she had been under medical treatment for a long time on account of
personal assistance, a sum of Rs. 50,000/- has been awarded and for future personal assistance, Rs. 30,000/-
has been allowed. The Tribunal has awarded Rs. 40,000/- towards pain and sufferings and Rs. 1,50,000/-
for permanent disability. However, permanent disability and future loss of income should have been
calculated under one head. Any way for both aspects, Rs. 1,50,000/- and Rs. 2,00,000/- have been awarded
and in total, it may be taken as Rs. 3,50,000/- to be awarded under the said head. Considering the manner of
accident, towards pain and sufferings, medical treatment, which the claimant has undergone as well as her
future sufferings and difficulties in her life, this Court finds no infirmity in the award passed by the
Tribunal. It is seen that the claimant could not walk in future and she has to be sedentary and she could not
herself and maintain her family.
6. In these circumstances, I do not find any necessity to interfere with the observation and findings
of the Tribunal and the award deserves confirmation by this Court.
7. In fine, the civil miscellaneous appeal is dismissed. No costs.
Appeal dismissed.

[2008 (1) TNCJ 175 (Mad)]

MADRAS HIGH COURT
BEFORE:
S. PALANIVELU, J.
P. KANDASAMY ...Petitioner
 Versus
NEYVELI LIGNITE CORPORATION LTD. & ANOTHER ...Respondents
[C.R.P.N.P.D. No. 1425 of 2005, decided on 8 June, 2007]
th

Arbitration and Conciliation Act, 1996—Sections 2(1)(e) and 34—Jurisdiction—Petition to set

aside award—Moved before Principal Sub-Court, Vridhachalam—Competency to try the
proceedings—Legally the Sub-Court is not competent to try the proceedings under the Act—
Principal District Court, Cuddalore alone is competent to deal with the matter—Principal
Subordinate Judge, Vridhachalam directed to return the petition pending in his file to the person for
presenting it before the Principal District Court, Cuddalore—Principal District Court directed to
dispose of the matter in accordance with law within a period of six months.
(Paras 12, 14, 16 to 18)
Case law.—AIR 2007 SC 465; AIR 2006 Mad 218; 2006 (1) CTC 178; 1997 (III) AD (Delhi) 586.
Counsel.—Mr. Anantharaju for the petitioner; Mr. N.A.K. Sharma for the respondent.
Important Point
District Judge of a District Court alone is the competent authority to exercise the original civil
jurisdiction in a district as contemplated in Section 2(1)(e) of the Arbitration and Conciliation Act, 1996
and not a subordinate Judge.
JUDGMENT
S. PALANIVELU, J.—With consent of both the counsel, the civil revision petition itself has been
taken up for final disposal.
2. This civil revision petition is preferred by the petitioner, to declare the Arbitration O.P. No. 28 of
2005, pending on the file of Principal Sub-Court, Vridhachalam, as non-est in law and void ab-initio.
3. The factual background of the matter is as follows:
(i) The petitioner was a contractor under the respondent Corporation and he executed five works
during the year 1998. There was a fire accident on 05.05.1998 in the Additional Cooling
Tower of the Fertilizer Factory of the respondent. The respondent informed the petitioner
that he was responsible for the said inferno, due to his negligence, and he had to compensate
the Corporation to the extent of Rs. 6,49,425/- as damages. All the Units of the Corporation
were directed not to honour the bills of the petitioner. The petitioner filed a writ petition
before this Court and this Court, by a common order, dated 03.04.2003, in W.P.Nos. 18504 of
1998, 12825 of 1999 and 328 of 2000, directed the parties to refer the matter to arbitration.
Thereafter, an Arbitrator was appointed and on 10.09.2004, an award was passed by the said
Arbitrator for a sum of Rs. 3,65,431/-, directing the respondent herein to pay the said amount
to the petitioner, towards damages.
(ii) Aggrieved over the said award, the respondent filed the Arbitration O.P. No. 28 of 2005 under
Section 34 of the Arbitration and Conciliation Act, 1996, on the file of the Principal
Sub-Court, Vridhachalam, to set aside the award, dated 10.09.2004, passed by the Arbitrator.
(iii) Then, the petitioner filed A.S.No. 130 of 2004 on the file of Principal District Judge at
Cuddalore for reimbursement of damages. The petitioner also moved this Court for stay of
further proceedings in the Arbitration O.P. on the file of Sub-Court, Vridhachalam, and stay
was also granted in C.M.P. No. 11494 of 2005 in this C.R.P.
(iv) Consequently, the respondent filed two applications one in I.A.No. 260 of 2005 under Section
10 read with Section 151 of C.P.C., to stay the appeal proceedings in A.S.No. 130 of 2004,
pending disposal of the present C.R.P., and the other in I.A. No. 261 of 2005, praying for
dismissing the appeal A.S.No. 130 of 2004, on the file of Principal District Court, Cuddalore.
(v) The learned Principal District Judge, after hearing both sides, passed a common order on
05.12.2005 in both the interlocutory applications, holding that both the applications
shall be kept pending till the disposal of the C.R.P. on the file of High Court, Madras.
4. The bottom line contention of the learned counsel for the petitioner is that the Principal Sub-
Court, Vridhachalam, lacks jurisdiction to entertain any application under the provisions of the Arbitration
and Conciliation Act, 1996, and the proceedings before the said Court are non-est in the eye of law.
 5. On the contrary, learned counsel for the respondent would contend that the Sub-Court has to be
construed as a Court of “Original Civil Jurisdiction”, as adumbrated in Section 2(1)(e) of the Act and
hence, the said Court is competent to try the matter.
6. In this context, it is profitable to refer to Section 2(1)(e) of the Arbitration and Conciliation
Act, which reads thus:
“2 (1)(e). “Court” means the Principal Civil Court of original jurisdiction in a district, and
includes the High Court in exercise of its ordinary original civil jurisdiction, having
jurisdiction to decide the questions forming the subject-matter of the arbitration if the
same had been the subject-matter of a suit, but does not include any Civil Court of a
grade inferior to such Principal Civil Court, or any Court of Small Causes.”
7. In support of his contention, learned counsel for the respondent placed reliance upon a decision
of the Hon’ble Supreme Court in M/s Pandey & Co. Builders Pvt. Ltd. v. State of Bihar & another,
reported in AIR 2007 SC 465, wherein, it is held as follows:
“The definition of ‘Court’ means the Principal Civil Court of original jurisdiction in a district and
includes the High Court which exercises the original civil jurisdiction. If a High Court does not
exercise the original civil jurisdiction, it would not be a ‘Court’ within the meaning of the said
provision.”
8. The learned counsel also cited a Division Bench decision of this Court in M/s Sundaram Finance
Ltd. v. M.K. Kurian & Another, reported in AIR 2006 Mad. 218. The operative portions of the said decision
are culled out as under:
“5. …….See Ramamirtham v. Rama Film Service, AIR 1951 Mad 93 (FB). It is thus clear
that as far as the City of Chennai is concerned, the words “Principal Civil Court of
original jurisdiction”, as defined in Section 2 1(e) of the Act, would mean the High Court
exercising jurisdiction on the original side and not the City Civil Court…..
8. Therefore, the view taken by the learned single Judge that the City Civil Court should be
regarded as the Principal Court of civil jurisdiction under Section 2 1(e) of the Act in
matters involving value of less than Rs. 10 lakhs is clearly erroneous and cannot be
sustained.”
9. A perusal of the above said decisions would make it clear that they are not at all helpful to the
respondent’s case, since, in both the decisions, the original civil jurisdiction exercisable by High Court
has been dealt with.
10. Per contra, learned counsel for the petitioner cited a Division Bench decision of the Madurai
Bench of Madras High Court in The State of Tamil Nadu v. R. Sundaram, reported in 2006 (1) CTC 178,
which throws much light on the subject. The relevant portions of the said decision are as follows:
“13. By examining the matter from any angle, it is thus apparent that the Court in which
application under Section 34 of the Arbitration and Conciliation Act can be filed is the
Principal Civil Court of original jurisdiction in a district. Moreover, as per the definition
clause contained in the Arbitration and Conciliation Act, any Civil Court of a grade
inferior to the Principal Civil Court is specifically excluded. In view of the specific
provision contained in Section 2 1(e) of the Act read with Section 2(4) of the Code of
Civil Procedure, it must be taken that the expression “Court” as contained in Sections 34
and 36 of the Act is the Principal Civil Court of original jurisdiction in a district, that is to
say, the District Court or the District Judge.
14. The view expressed above by us, apparent from the plain language contained in the
Arbitration and Conciliation Act and even the Code of Civil Procedure, receives
considerable support from the decisions of several High Courts.”
11. In the above said decision, after considering and referring to a catena of decisions of this High
Court and various other High Courts, it has been concluded that the District Judge of a District Court
alone is the competent authority, to exercise the original civil jurisdiction in a district, as contemplated in
Section 2 (1)(e) of the Act and not a Subordinate Judge. It is also opined that the clear language indicated in
the Arbitration and Conciliation Act as well as the Code of Civil Procedure leaves no room for any doubt
that only a Principal District Court of a district, namely, a Court of District Judge has jurisdiction in such
matters and not a Subordinate Judge.
12. In view of the factual and legal backgrounds of this case, I am of the view that the Principal
District Court, Cuddalore, alone is competent to deal with the matter.
13. The next question that arises for consideration is, as to the further course of proceedings to be
conducted.
14. Legally, the Sub-Court is not competent to try the proceedings under the Arbitration and
Conciliation Act. It was represented before this Court that the matter may be transferred to Principal
District Court, Cuddalore, from Sub-Court, Vridhachalam. Merely because a proceeding is instituted
before a wrong forum, it cannot be said that the said forum has to reject the same, for lack of jurisdiction.
15. In Geo. Miller & Co. Ltd. v. Union Bank of India, reported in 1997 (III) AD (Delhi) 586, the
Delhi High Court has held as under:
“17. In the result, it is held that this Court has no jurisdiction to try and decide the present
petition filed by the petitioner under Section 41 of the Arbitration Act. In view of the
above decision reached by me, it is not necessary to consider the other issues raised
before me. Accordingly, I direct return of the petition to the petitioner to file the same in
an appropriate Court in Lucknow in terms of clause 7.24.2 of the contract agreement. The
registry may take immediate steps to return the petition of the petitioner to file the same
in an appropriate Court. The petition stands disposed of in the above terms but without
any cost.”
16. In the case on hand, neither of the parties brought to the notice of this Court as to whether there
was any written agreement between them while referring the matter to arbitrator and, if so, whether there
are any clauses with regard to the jurisdiction of the Courts, in case any dispute arises between them.
17. Therefore, in view of decision in Geo. Miller & Co. Ltd. v. Union Bank of India and also in the
absence of this Court being put to any notice regarding the agreement between the parties, this Court is left
with no other option except to direct the learned Principal Subordinate Judge, Vridhachalam, to
return the Arbitration O.P. No. 28 of 2005, pending on his file, to the respondent herein, who is the
petitioner in the said O.P., for presenting it before the Principal District Court, Cuddalore, and the ends of
justice will be met, if it is ordered as such.
18. Accordingly, a direction is hereby issued to the learned Principal Subordinate Judge,
Vridhachalam, to return the Arbitration O.P. No. 28 of 2005, pending on his file, to the respondent herein,
who is the petitioner in the said O.P., for presenting it before the Principal District Court, Cuddalore, and,
on such return, the respondent shall present the same before the Principal District Court, Cuddalore, within
three days. Thereupon, the Principal District Judge, Cuddalore, is directed to dispose of the matter in
accordance with law, within a period of six months.
19. Civil Revision Petition is disposed of, in the above terms. No costs. Consequently, the
connected C.M.P. Nos. 11494 of 2005, 36 and 586 of 2007 are closed.
Petition disposed of.

[2008 (1) TNCJ 179 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI-BENCH)
BEFORE:
K. RAVIRAJA PANDIAN AND P. R. SHIVAKUMAR, JJ.
R. DHANALAKSHMI ETC. ...Appellants
Versus
SENTHILKUMARI ETC. ...Respondents
[A.S. (MD) Nos. 233 and 234 of 2000 and Tr. A (M.D.) Nos. 1027 to 1030 of 2001, decided on 10th July,
2007]
 (A) Civil Procedure Code, 1908—Order XXIII, Rule 3—Compromise petition—Marked as
Ex.B.I—Perusal and reading of the schedule of—Schedule is a total mess as the same is having
number of corrections, over writings, strikings and interpolations—Obvious discrepancies—No
credibility can be attached to Ex.B.I—Rejected as incredible.
(Paras 14 and 15)
(B) Evidence Act, 1872—Section 79—Certified copies of compromise—Court shall presume to
be genuine every document purporting to be a certified.
(Para 16)
(C) Ancient document—Issued by a competent Court in the year 1942—No material to doubt
the credibility of the document—Mere ipse dixit in evidence of P.W.1 as to the time and how he came
to possess Exs. A-2 and A-16 would not militate the issue or eschew the admissibility or credibility of
the two documents when legal sanctity has been attached to them as per Evidence Act—Documents
are true and genuine documents. (Para 17)
(D) Land Acquisition Act, 1894—Section 5-A—Land acquisition—Mere appearing and
objecting to the land acquisition of a particular land under Section 5-A of the Act, by itself would not
give any title to the person objecting the same—A third party can very well, on behalf of the real
owner, object the land acquisition giving valid reasons—Revenue records would not confer any title.
(Para 21)
(E) Law of pleadings—Object of—Court and the respective parties should fully know the
case and contentious issue before the parties go in for trial so that the trial may proceed in the well
defined channel. (Para 26)
(F) Civil Procedure Code, 1908—Order VI, Rule 17—Amendment of pleading—Court is
vested with the power to allow the parties to amend the pleadings at any stage of the proceedings—
Amendment shall be made as may be necessary for the purpose of determining the real question in
controversy between the parties. (Para 24)
(G) Practice and procedure—Fair play in action must inhere in judicial approach—Code of
procedure is designed to facilitate justice and further its ends—Not a penal enactment for
punishment and penalities. (Para 27)
(H) Practice and procedure—Multiplicity of litigation—If the relief of declaration is not
granted—Several spate of suits would be filed once again by the appellants resulting in multiplicity of
litigation—Action of the Court in granting the declaratory relief by directing the plaintiff to pay the
court-fee no substantial prejudice has been caused to the defendants/appellants—Procedure adopted
by Court, when all the relevant materials available before it, cannot vitiate the proceedings.
(Paras 28 to 31)
Case law.—1993 (4) SCC 349; 1996 (5) SCC 618; 2003 (10) SCC 352; 2004 (12) SCC 58; 2007
(1) LW 32; 2000 (1) SCC 712; AIR 1922 PC 249; 1983 (2) SCC 132; 2000 (7) SCC 215; AIR 1955 SCC
425; 1983 (1) SCC 14; 1980 (3) SCC 612.
Counsel.—Mr. AR. L. Sundaresan, Senior Counsel, for Mrs. AL. Gandhimathi, for the appellants;
Mr. T.R. Rajagopal, Senior Counsel, for Mr. T.R. Rajaraman, for the respondents.
Important Point
Mere appearing and objecting to the acquisition of a particular land under Section 5-A of the Land
Acquisition Act, by itself would not give any title to the person objecting the same. A third party can very
well on behalf of the real owner, object the land acquisition giving valid reason.
JUDGMENT
K. RAVIRAJA PANDIAN, J.—The appellants, who are defendants in original suits Nos.209 of 1996
and 63 of 1995 filed Appeal Suits Nos.233 and 234 of 2000 against the judgment and decree of the trial
Court made in those suits granting the relief of permanent injunction as prayed for with declaratory relief,
in favour of the respondents/plaintiffs. The other four appeals in Tr.A.S. Nos. 1027 to 1030 of 2001 are
filed aggrieved by the dismissal of the suits filed by the respective appellants/plaintiffs in those suits,
for injunction against the respondents/plaintiffs in Original Suits Nos.353, 356, 359 and 404 of 1997.
2. The facts of the case is as follows:
 The suit in O.S. No.209 of 1996 was filed by one Senthil Kumari against Sundaram, Dhanalakshmi
and the legal heirs of Ramadoss for the relief of permanent injunction on the ground that the suit
property in an extent of 66 cents was originally owned by one Rengasamy Naidu. One of the sons
Ramanujam Naidu filed a suit in O.S. No.198 of 1937 against his father Rengasamy Naidu and his brother
Rajagopal Naidu for the relief of injunction in respect of the suit property and other properties. In that suit
a compromise decree was passed on 21.07.1937. In that decree ‘A’ schedule property was allotted to
Ramanujam Naidu and ‘B’ schedule property was allotted to Rajagopal Naidu. The suit property was item
No.3 of ‘B’ schedule. By virtue of the compromise decree, the said Rajagopal Naidu had been in
possession and enjoyment of the suit property. The said Rajagopal Naidu has also asserted his title in
subsequent land acquisition proceedings in OP. No.76 of 1955. In the said acquisition proceedings a
portion of the property in survey No.4045 was sought to be acquired for the formation of Salai road
extension. Consequently, an award was passed in Award No.15 of 1954 on 23.11.1954 in his favour. The
said acquisition proceedings has been quashed by the High Court in writ petition No.17 of 1955.
Consequently, the award passed in favour of Rajagopal Naidu was referred to the Revenue Divisional
Officer, Trichy and the compensation was repaid and the land was repossessed by Rajagopal Naidu.
Subsequently, the said Rajagopal Naidu obtained patta and adangal in his favour. The said Rajagopal
Naidu executed a sale-deed on 26.05.1994 in favour of the Government in respect of a portion of the
property in survey No.4045 (new No.84) through his power agent Senthil Kumari under Ex.A.35 (4525 sq.
ft.). Senthil Kumari purchased the property in an extent of 10.96 cents from Rajagopal Naidu under
Ex.A1 by sale deed dated 27.04.1994. After the purchase of the property which is the subject-matter
of the suit from Rajagopal Naidu and his legal heirs, the respondents/ plaintiffs are in actual
possession and enjoyment of the same. As the property is a vacant site, the plaintiffs/respondents took steps
to raise a compound wall on 19.03.1996. The appellants/defendants along with others attempted to
interfere with the peaceful possession and enjoyment of the property. On that cause of action, the
respondents/plaintiffs filed a suit for injunction.
3. The appellants/defendants resisted the suit by contending, inter alia, that Rajagopal Naidu and his
legal representatives have no right, interest, or title over the suit property. Thus, the sale-deed executed by
Rajagopal Naidu and his legal heirs in favour of the respondents/plaintiff would not confer any right or title
on them. Ramanujam was the owner of the said property as he obtained the same under the compromise
decree. Ramanujam Naidu executed a Will in favour of his foster son Ramadoss. The defendants, the legal
heirs of Ramadoss are the absolute owners. They are in possession and enjoyment of the suit property till
date. The appellants/defendants also denied the factum that Rajagopal Naidu got the property in the
compromise decree in O.S. No.198 of 1937.
4. The case of the plaintiff in O.S. No.63 of 1995 is as follows :
The suit in O.S. No.63 of 1995 was filed by Mashmukhlal M.Vora, Jayashree M.Vora, Hansa
J.Vora, T.Ashokan and Minor R.Vijayakumar against Dhanalakshmi, Ramdoss and the legal heirs of
Ramadoss – R.Malarvizhi, Vanitha, Amudha, Kaliselvi and Kavitha. It was the case of the plaintiffs in this
suit that Rajagopal Naidu and his legal heirs, by sale deed dated 11.07.1980, under Ex.A.15 sold 44 cents
of land in suit the property to Varadarajan, Subramanian and Muruganandam, who in turn sold the same to
one Mahendra Kumar Vora. The first plaintiff in this suit Mashmukhlal M.Vora purchased a portion of the
said property by way of exchange deed dated 05.03.1992 under Ex.A.9. The rest of the properties were
purchased by the plaintiffs 2 to 5 in this suit from Varadarajan and two others in different extents by means
of five sale deeds under Exs.A.10 to A.14 dated 22.08.1990. Thus, the plaintiffs have been in actual
possession and enjoyment of the property after purchase. Thereupon, in the year 1995 land acquisition
proceedings were initiated and on private negotiations the plaintiffs executed a sale deed in favour of the
Executive Engineer, PWD, Madurai for certain extent in the suit property. The defendants are utter
strangers. They have no title to the property. During January, 1995 the defendants tried to encroach upon
the property by putting up the fence. That was successfully prevented by the plaintiff. On that basis the
said suit was filed.
5. The defendants in OS. No.209 of 1996 and 63 of 1995 are one and the same. They resisted the
suit on the same ground that the property was originally owned by Ramanujam and Ramanujam
executed a Will in favour of Ramadoss. After the death of Ramadoss, the legal heirs of Ramadoss,
defendants are in enjoyment and possession of the property.
 6. Though nothing was argued about the other appeals in Tr. Appeals Nos.1027 to 1030 of 2001,
which were filed against the dismissal of Original Suits Nos.353, 356, 359 and 404 of 1997, for
completion of the narration of facts, the details are narrated in a nut shell.
7(a) Before the District Munsif, Trichy, O.S.No.38 of 1995, which was transferred to the file of I
Additional Sub Judge, Trichy and renumbered as O.S. No.353 of 1997 was filed by Dhanalakshmi and
Ramadoss in respect of the suit property in S.No.4045 and 4049 for the relief of injunction against
Mahendra Kumar Vora and others on the same ground that Ramadoss Naidu was the owner of the property
by virtue of the Will executed by Ramanujam Naidu in the year 1985. The plaintiffs Dhanalakshmi and
Ramadoss are in possession of the suit property. The defence in the suit, as taken in the earlier suit, is to
the effect that Rajagopal Naidu got the property in S.No.4045 under the compromise decree and
thereupon, subsequently the same was sold to the defendants.
7(b) Before the District Munsif, Trichy, O.S. No.866 of 1996 (later transferred to the file of
the I Additional Sub Judge, Trichy and renumbered as O.S. No.356 of 1997) was filed by Palaniammal and
Amudha, the legal heir of Ramadoss Naidu against Ramasamy and Senthil Kumari, the plaintiff in O.S.
No.209 of 1996 on the ground that Amudha entered into a tenancy on a monthly rent of Rs.750/- on an oral
lease with Senthil Kumari. The purpose of tenancy was for running sheep farm. The plaintiffs improved
the land by investing Rs.30,000/-. The first plaintiff is assisting Amutha in the sheep farm. The
defendants interfered with their possession and hence the suit.
7(c) O.S.258 of 1996 was filed before the District Munsif, Trichy, which was later renumbered as
O.S. No.359 of 1997 when transferred to the file of the I Additional Sub-Judge, Trichy, was filed by one
Jegannathan against R.Chandra and others for the relief of injunction on the premise that the plaintiff is the
lessee of the land on and from 01.03.1996 onwards on the basis of the lease entered into with one Vanitha,
power of attorney of the real owner of the land. The defendants interfered and hence the suit.
7(d) Original Suit No.111 of 1997 was filed before the District Munsif, Dindigul and transferred to
the I Additional Sub-Judge, Trichy and renumbered as O.S. No.404 of 1997. That suit was filed by
Malarvizhi and Amutha, the daughters of Ramadoss and Dhanalakshmi against Hashmukhlal Vora and
others on the premise that the plaintiffs were lessees of Ramadoss by lease deed dated 01.07.1995 and they
are in possession.
8. The trial Court, pursuant to the direction given by the High Court in C.R.P. No.1173 of 1997 by
order dated 24.04.1997 directing that all the suits above referred to pending before various Courts shall be
transferred to Sub-Court Trichy and heard and disposed off along with the suit pending before it,
passed the common judgment by decreeing the suits in O.S. No.209 of 1996 and 63 of 1995 and dismissing
the rest of the suits.
9. Mr.AR.L.Sundaresan, learned senior counsel appearing for the appellants submits that the
suit property in S.No.4045 was allotted to the share of Ramanujam under the compromise decree made in
O.S.No.198 of 1937 dated 21.07.1937. In pursuance of the same, the said Ramanujam was in possession
and enjoyment of S.No.4045. Ramanujam being unmarried, executed a Will in favour of his foster son one
Ramadoss under Ex.B.18 dated 10.01.1985. After the death of Ramadoss on 01.04.1992 the appellants
being the legal heirs of Ramadoss are in possession and enjoyment of the same. The revenue records under
Exs.B.9 to B.17 would clinchingly prove that the defendants are in possession and enjoyment of the
property. Exs.A.2 and A.16 certified copies of the compromise decree cannot be regarded as genuine ones
in the face of Ex.B.1 compromise petition, Ex.B.3 suit register and B.2 settlement register marked by the
appellants. A cloud is cast on the Exs.A.2 and A.16 which cannot be relied upon as the original copies are
not available in Court. He further contended that the suit as framed was for permanent injunction. The trial
Court has granted the decree of declaration also by directing amendment of the plaint and payment of
court-fee for the declaratory relief, which is impermissible in law.
10. On the other hand, Mr.T.R.Rajagopal, learned senior counsel for the respondents/plaintiffs
contended that Exs.A.2 and A.16 certified copies of compromise decree are the vital documents which
cannot be simply brushed aside. The defendants who claim the right under Ramanujam by contending that
the suit property has been allotted to Ramanujam in the compromise decree has not taken any care to
file a copy of the compromise decree granted to prove their case, but simply stated that the application filed
by them for the copy has been returned both by the District Court as well as Munsif Court as the original
was not available. Ex.A.33, compromise petition signed by all the parties to the suit, is categorical in its
term that the suit property in S.No.4045 was allotted to the share of Rajagopal, who along with his legal
heirs executed a sale deed in Ex.A.15 in favour of Varadarajan, Subramanian and Muruganandam, who in
turn executed sale deeds in favour of Mahendra Kumar Vora, Jayashree H.Vora, Hansa J.Vora, T.Ashokan
and Minor R.Vijaykumar under Exs.A.10 to A.14. Mahendra Kumar Vora who purchased a portion of the
property from Varadarajan and two others exchanged the same with Hashmukhlal Vora under Ex.A.9,
exchange deed. Likewise, Senthilkumari, the plaintiff in O.S. No.209 of 1996 purchased an extent of 10.96
cents from Rajagopal Naidu and his legal heirs by a sale deed dated 27.01.1994 under Ex.A.1. Thus, the
plaintiffs have derived title and are in possession and enjoyment of the suit property. The decree granted by
the trial Court cannot be assailed. He further contended that the Court, taking into consideration the
desparate attempts made by the defendants in filing suit after suit in respect of the very same property
in various Courts, went into the question of title also and has given a clear finding that the plaintiffs in
O.S. 209 of 1996 and O.S. No.63 of 1995 are entitled to the relief of injunction. The declaratory relief was
granted taking into consideration the defence taken by the defendants. Because of the defence taken and the
attitude of the defendants, the trial Court was forced to analyse the title dispute also and ultimately the
Court held that the plaintiffs in O.S.No.209 of 1996 and 63 of 1995 are entitled to the suit property on the
basis of the compromise decree, sale deeds and other documents and thus granted the relief of declaration
also by directing the plaintiffs to amend the plaint and pay the court-fee, that too, having regard to the
peculiar facts and circumstances of the present case. Pursuant to that the court-fee has also been paid.
Contending thus, he prayed for dismissal of the appeals.
11. Heard the learned senior counsel on either side and perused the materials available on record.
12. From the summation of facts, as stated above, the issue to be decided is whether the plaintiffs in
O.S. Nos.209 of 1996 and 63 of 1995 are entitled to the suit relief. Though the prayer was sought for
permanent injunction, the fact in issue is as to the title, in the sense that the plaintiffs in O.S. No.209 of
1996 and 63 of 1995 contended that they purchased the property from Rajagopal Naidu, who obtained the
same under the compromise decree. The defendants denied the same and traced their title through
Ramanujam under the same compromise decree.
13. Exs.A.2 and A.16 are certified copies of the compromise decree dated 21.07.1937. As seen from
Ex.A.2, the application for issuance of certified copy of the decree was made on 03.02.1995 and Ex.A.2
was issued on 07.02.1995. For Ex.A.16, the copy application was made on 30.01.1942 and Ex.A.16 was
issued on 05.02.1942. There is absolutely no discrepancy whatsoever in respect of these two documents.
They are identical to each other. The relevant portions are extracted hereunder:
“(1) that A schedule properties described hereunder shall be owned absolutely by the plaintiff
as and from this date with absolute power of alienation and that none of the defendants
shall have any right or interest in the same.
(2) that the B schedule properties described hereunder shall be owned absolutely by the
second defendant and he shall enjoy the same as and from this date with full and absolute
st
powers of alienation and that neither the plaintiff nor the 1 defendant shall have any
right or interest in the same and,
(3) that the parties do bear their own costs of this suit.
DESCRIPTION OF PROPERTY
A. Schedule
rh;nt vz; jp. jh. rpe;jhkzp fpuhkj;jpy;
V. br.
jPh;it
1. 3831/2 0.59 eQ;ir 8.7.0
2. 3833 0.33 i\ 4.11.0
3. 3834 0.66 i\ 9.7.0
4. 3857 0.83y; fPH;ghfk; oRky; 37½
5. 3802 0.35y; fPH;ghfk; oRky; 17½
B Schedule
rh;nt vz; jp. jh. rpe;jhkzp fpuhkj;jpy;
V. br.
jPh;it
1. 3857 0.73y; nky;ghfk; oRky; 36½
2. 3802 0.35y; nky;ghfk; oRky; 17½
3. 4045 0.66 eQ;ir jPh;it :U9.7.0
4. 4049 0.22 eQ;ir jPh;it 3.2.0
14. The petition filed by the parties to the suit in O.S. No.198 of 1937 under Order XXIII, Rule 3 of
the Code of Civil Procedure has been marked as Ex.A.33. As per Ex.A.33, ‘A’ schedule properties should
be owned absolutely by the plaintiff in O.S. No.198 of 1937, i.e., Ramanujam Naidu as and from that date
with absolute power of alienation. None of the defendants therein shall have any right or interest in the
same. On the same terminology, ‘B’ schedule property was allotted to the share of Rajagopal Naidu, the
second defendant in that suit. It could be seen from Ex.A.33 that all the parties to the suit, i.e., Ramanujam
Naidu, the plaintiff, Rengasamy Naidu, the first defendant and Rajagopal Naidu, the second defendant have
signed the petition in each and every page upto the last page. In the last page, in addition to the parties’
signature, counsels appearing for the parties have also signed. S.No.4045 and 4049 come under ‘B’
schedule, which has been allotted to Rajagopal Naidu. On behalf of the appellants/defendants, a copy of
the same compromise petition filed under Order XXIII, Rule 3, CPC has been marked as Ex.B.1. In the
Schedule to the same S.No.4045 and 4049 are shown as item No.4 under ‘A’ schedule. On a perusal of the
‘A’ schedule, it is apparent on the face of it that suit property was inserted in the schedule. All other items
of properties in that schedule were identified with full details such as their extent with survey numbers
and boundaries of the properties in all four sides with their respective survey numbers. But so far as item
No.4, ‘A’ schedule property is concerned, only the survey number was stated and not even the extent was
stated.
15. Likewise, ‘B’ schedule shown in Ex.B.1 is filled with all ambiguities. Item No.2 of ‘B’
schedule read as follows :
nkw;go> nkw;go> nkw;go> rpe;jhkzp F:U:g; jpUj;jhe;njhzp fpuhkj;jpy; mad; eQ;irahapUe;J
jw;fhyk; bjd;de;njhg;g[ lt[z; rh;nt 3857> butpd;a{ rh;nt 107/2> ehd;bfy;iy nkw;fpy; 3849> tlf;fpy; 3856>
fpHf;fpy; 3858> bjw;fpy; ciwa{h; nuhL ,jw;Fl;gl;lJ. o 73y; nky;ghfk; o 36 1/2. ,e;j epyj;Jf;F fPH;ghfk;
tHpahfj; jz;zPh; gha;r;rpf;bfhs;s ghj;jpak; cl;gl.
Item No. 4 is the lower part of item No. 2. It reads as under:
nkw;go> nkw;go> nkw;go> rg; o];l;hpf;l;> g[j;J}h; khfhzk;> rpe;jhkzp F:U:g; jpUj;jhe;njhzp
fpuhkj;jpy; mad; eQ;irahapUe;J jw;fhyk; bjd;de;njhg;g[ lt[z; rh;nt 3857> butpd;a{ rh;nt vz; 107/2>
ehd;bfy;iy nkw;fpy; 3842> tlf;fpy; 3856> fpHf;fpy; 3858> bjw;fpy; ciwa{h; nuhL ,jw;Fl;gl;lJ. orpky; 73y;
fPH;ghfk; orky; 36 1/2. ,jw;F nky;g[wk;; tofhy; ghj;jpak; cl;glt[k;.
Item No.2 refers to upper portion of the land in an extent of 36 ½ cents out of 73 cents in survey
No.3857. Item No.4 refers to lower portion in an extent of 36 ½ cents out of 73 cents in the very same
survey No.3857. If the entire extent of 73 cents were agreed to be allotted in the ‘B’ schedule, there is no
necessity for dividing 73 cents into two portions – upper and lower and also two different items (2 and 4) in
‘B’ schedule. Further more, by a mere perusal and reading of the schedule of Ex.B.1 it is manifestly clear
that the schedule is a total mess as the same is having number of corrections, over writings, strikings and
interpolations. In view of the above obvious discrepancies in the schedule to Ex.B.1, we are of the view
that no credibility can be attached to Ex.B.1 and thus we reject the same as incredible.
16. From Exs.A.2 and A.16 which are certified copies of the compromise decree issued by the
competent Court it is evident that S.No.4045 is item No.3 of B schedule to the compromise decree, which
was allotted to Rajagopal Naidu. As per Section 79 of the Indian Evidence Act, the Court shall presume to
be genuine every document purporting to be a certificate, certified copy or other document, which is by law
declared to be admissible as evidence of any particular fact and which purports to be duly certified by any
officer who is duly authorised thereto. Exs.A.2 and A.16 conform with the legal requirements.
 17. In addition to that, the document (Ex.A.16) is also ancient document issued by a competent
Court in the year 1942. There is absolutely no discrepancy whatsoever in Exs.A2 (which was issued in the
year 1995) and A.16 and there is no iota of material to doubt the credibility of the document, Ex.A.16. Of
course as to how those documents came to the possession of the respondents/plaintiffs was questioned by
Mr.AR.L.Sundaresan, learned senior counsel and for that purpose he referred to the oral evidence of P.W.1.
It may be true that in the oral evidence of P.W.1 there are certain inconsistencies as to the possession
and time when it was handed over by the vendor. The mere ipse dixit in the evidence of P.W.1 as to the
time and how he came to possess Exs.A.2 and A.16 would not militate the issue or eschew the admissibility
or credibility of the two documents when legal sanctity has been attached to them as per the Evidence
Act. Hence, we are of the view that Exs.A.2 and A.16 are true and genuine documents and as per the same,
the disputed property in S.No.4045 was allotted in favour of Rajagopal Naidu.
18. Subsequent to the compromise decree, to prove that the said Rajagopal Naidu has asserted title
to the suit property, land acquisition proceedings initiated in respect of a portion of the suit property have
been marked as Exs.A.4 and A.5. They are O.P.Nos.76 of 1958 and 57 of 1958. It is clear from the above
documents that an extent of 5281 sq. ft. in S.No.4045/1 and 4141 sq. ft. in the same survey numbers have
been acquired. In the said proceedings Rajagopal Naidu and three of his legal heirs were parties. It could
be seen from the said proceedings that a compensation amount of Rs.624.94 and Rs.413.17 have been
awarded in respect of the lands acquired in survey No.4045. Further, Rajagopal Naidu, it is evident from
Ex.A.38 dealt with the property in S.No.4045 by executing an indemnity deed in favour of the District
Court for the appointment of one Sankaran Pillai as Amin.
19. Apart from that, Ramanujam Naidu has dealt with the properties allotted to him (A schedule) in
terms of the compromise decree by executing a sale deed on 16.01.1961 in document No.147 of 1961,
under Ex.A.36, by which he conveyed some portion of S.No.3857, which is item No.4 in the A schedule to
the compromise decree, to one Palanichamy Naidu. Ex.A.37 is the mortgage deed by which Ramanujam
Naidu mortgaged the property of an extent of 38 cents in T.S. No.3802, which is item No.5 in the A
schedule to the Compromise decree, to one Vaithialinga Pillai. Ex.A.32 is the sale deed executed by the
said Ramanujam Naidu by which 15 flats in T.S. No.3831/2B, 3833 and 3834, which are items Nos.1 to 3
in the A schedule to the said compromise decree were sold out. Thus, the properties described in A
schedule have been dealt with by Ramanujam Naidu, which establishes the fact that A schedule properties
were allotted to Ramanujam Naidu and B schedule properties, in which S.No.4045 is one of the items, was
allotted to Rajagopal Naidu and thus, Exs.A.32, A.36 and A.37 establish the correctness of Exs.A.2 and
A.16. It further establishes that the parties have acted upon on the basis of Exs.A.2 and A.16.
20. Now coming to the documents relied upon by the appellants/ defendants, Ex.B.1, the
compromise petition filed under Order XXIII, Rule 3 of the Code of Civil Procedure, the genuineness of
which has been dealt with in the earlier portion of this judgment and held to be containing manipulations,
over writings, strikings and absurdity and hence Ex.B.1 cannot in any way advance the case of the
appellants/defendants and the same has to be rejected. Likewise, Ex.B.3, the suit register on which reliance
was placed by the learned senior counsel for the appellants/defendants has also to be rejected for the reason
of manipulation, because as and when suits are filed, the particulars about the names of the plaintiffs,
counsel appearing for the plaintiffs, names of the defendants, counsel appearing for the defendants and the
relief prayed for in the suit are entered in the register. Of course the properties scheduled in the plaint also
entered in the suit registers. After the disposal of the suit, the nature of disposal would be indicated in the
relevant column of the suit register. However, it is peculiar in this case that under Ex.B.3, the schedule of
properties have been divided into ‘A’ and ‘B’ schedules. When the division of A and B schedules, as found
in the copy of the suit register is compared with Ex.A.17, the plaint copy in O.S. No.198 of 1937, no such
division has been found. Hence, the division noted in the certified copy of the suit register under Ex.B.3
could only be regarded as an improvement done for the benefit of the appellants/defendants. The
properties contained in Ex.B.3 suit register are also not co-relatable with the properties in the plaint in
Ex.A.17, in the sense that the number of the survey numbers which are not available in the plaint schedule
(Ex.A.17) have been incorporated in Ex.B.3. Likewise, in the disposal column, it is written that A schedule
property has been allotted to Ramanujam Naidu in which S.No.4045 is included as one of the items. For
the reasons stated above, Ex.B.3 has also to be rejected as a document of manipulation, manipulated for the
purpose of gaining advantage by the appellants.
21. Once we come to the conclusion that the disputed property in S.No.4045 has been allotted to
Rajagopal Naidu, the other documents which are revenue records produced by the appellants/defendants
need not be dealt with in detailed fashion. Ex.B.4, which is inquiry proceedings under Section 5-A of the
Land Acquisition Act in respect of the said land in which Ramanujam appeared in person and objected to
the land acquisition. Mere appearing and objecting to the acquisition of a particular land under Section 5-A
of the Land Acquisition Act, by itself would not give any title to the person objecting the same. A third
party can very well, on behalf of the real owner, object the land acquisition giving valid reasons. Ex.B.2
Survey and Settlement register shows the name of Rengasamy Naidu as the pattadar. Exs.B.9 to B.14 are
revenue records. Entries in these records were changed in the name of the appellants post-suit, cannot be
taken as more credible than Exs.A.2 and A.16. Further, it is well settled proposition that revenue
records would not confer any title. [See Guru Amarjit Singh v. Rattan Chand, (1993) 4 SCC 349; Durga
Das v. Collector, (1996) 5 SCC 618; Dalip Singh v. Sikh Gurdwara Prabhandak Committee, (2003) 10
SCC 352; Suman Verma v. Union of India, (2004) 12 SCC 58.]
22. It is interesting to note that the consistent case of the defendants is that the suit property was
allotted to the share of Ramanujam Naidu and that Ramanujam Naidu executed a Will Ex.B.18 in favour of
Ramadoss, his foster son. As already stated, we are not able to concur with the stand of the
defendants that survey No.4045 was allotted to Ramanujam Naidu. The learned counsel for the
appellants/defendants did not advance any argument with reference to the Will. However, the trial
Court has given a very detailed and categorical finding that the Will has not been proved as required under
law. It is pertinent to mention that the trial Court has criticised the way in which the case has been
projected by the appellants/defendants with reference to the Will on which they claim title to the effect that
in the plaint filed by the defendants in O.S. No.209 of 1996, not even the date and month of the Will was
mentioned. Likewise, there was no mention about the names of the attestors and scribe of the Will and
about their availability or non-availability in a specific manner. A clear-cut denial over the sound disposing
state of mind of the testator has been put forth by the defendants in O.S. No.353 of 1997 in the written
statement by attacking the genuineness of the Will. D.W.1, for the first time stated in her evidence that she
was physically present when the Will was executed by Ramanujam Naidu. But there is no whisper about
the important aspect by way of specific pleading. D.W.1 has not spoken about the non-availability of the
attestors or scribe, when he was examined-in-chief partly on 15.07.1996 and further examination-in-chief
on 17.07.1997 and even at the cross-examination on 17.07.1997, 22.07.1997 and then on 23.07.1997. After
the cross-examination was over, D.W.1 came forward to state by subjecting for further examination on
29.07.1997 that the attestors and the scribe were dead. From the evidence, the trial Court came to the
conclusion that D.W.1 has not participated in the execution of the Will directly by affixing signature on it.
Further, the trial Court has held that no evidence has been adduced to support the claim that attestors and
scribe of the Will were actually dead, and found that it was an after-thought to get over the non-
examination of the attestors and scribe. The trial Court has also found that in Ex.B.18 Will, there is a
mention about the earlier Will dated 01.07.1982 and about the rectification Will dated 05.01.1985 which
are not produced and there was no satisfactory explanation for non-production of the same. Further, it
was found that the allegation that the signature of the attestor and scribe has not been proved to the
satisfaction of the Court by the competent person who claims knowledge about the signature of such
attestors and scribe. Nothing was argued before this Court to reject the same. Hence, for the foregoing
reasons, we are of the view that the appellants have not made any case so as to reverse the factual finding
of the trial Judge, which is based on materials.
23. As regards the other point that the trial Court has erred miserably expanding its jurisdiction in
granting a decree for declaration, we are of the view that technical objections need not been given much
weight, when Procedure Code provides for amendment of pleading at any time. Admittedly, in this
case, the proviso introduced by 2002 amendment is not applicable. Useful reference can be had to the
decision of the Full Bench of this Court in the case of Hi. Sheet Industries v. Litelon Ltd., 2007 (1) LW 32.
24. In this case, the fact in issue is that item No.3 T.S.No.4045 of ‘B’ schedule property was allotted
to Rajagopal Naidu under the compromise decree made in O.S. No.198 of 1937. That was denied and
rather, it was claimed that the above said S.No.4045 was allotted to Ramanujam Naidu and that was item
No.4 in ‘A’ schedule. Thus, the claim is under the compromise decree and the fact in issue is whether the
property was allotted to Ramanujam Naidu or Rajagopal Naidu. The respondents/plaintiffs claim title
under Rajagopal Naidu and the appellants/defendants claim title under Ramanujam Naidu. This is
factually a title suit. The pleadings – the averments in the plaint and written statement have concentrated
only on that issue. Evidence was also let in concentrating on the core issue of title to the suit property.
However, the prayer sought for was only for injunction. Order VI, Rule 17 provides that the Court may at
any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such
terms as may be just, and all such amendments shall be made as may be necessary for the purpose of
determining the real questions in controversy between the parties. So, the Court was vested with the power
to allow the parties to amend the pleadings at any stage of the proceedings. The further requirement of the
provision is that the amendment shall be made as may be necessary for the purpose of determining the real
question in controversy between the parties vide B.K.Narayana Pillai v. Parameswaran Pillai, 2000 (1)
SCC 712.
25. The Privy Council in the case of Ma Shwe Mya v. Maung Mo Hnaung, AIR 1922 PC 249, has
observed that :
“All rules of Courts are nothing but provisions intended to secure the proper administration of
justice and it is, therefore, essential that they should be made to serve and be subordinate to that
purpose, so that full powers of amendment must be enjoyed and should always be liberally
exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be
substituted for another, nor to change by means of amendment, the subject-matter of the suit.”
26. The object of law of pleadings is that the Court and the respective parties should fully know the
case and contentious issue before the parties go in for trial so that the trial may proceed in the well defined
channel.
27. In the case on hand also, the real question in controversy is only title to the suit property based
on which the relief of injunction has been sought for. When the entire plaint is read together, though the
relief sought for is for injunction, while considering the stand taken in the written statement, the dispute
is only in respect of the title. By allowing this amendment no prejudice is caused or stated to have been
caused to the appellants/defendants. Only technical plea was raised. Fairplay in action must inhere in
judicial approach and Court’s approach should be oriented with this view whether substantial justice is
done between the parties or technical rules of procedure are given precedence over doing substantial justice
in Court. A code of procedure is designed to facilitate justice and further its ends; not a penal enactment
for punishment and penalties. —vide Bhagwan Swaroop v. Mool Chand, (1983) 2 SCC 132. The Supreme
Court in the case of Santokh Singh v. Mahant Iqbal Singh, (2000) 7 SCC 215, while considering the case in
a suit for possession, where the declaratory relief has not been prayed for, observed as follows :
“It is correct that such a declaration should have been sought. Normally in the absence of such a
declaration such a suit would not be maintainable. However, in this case, we find that even
though there was no prayer to the effect that the lease deed was not valid and/or void and/or not
binding, the necessary averments are there in the plaint. The appellants thus knew that the lease
deed was being challenged. They met the challenge in their written statement. Thereafter issues,
namely, issues 4 and 5 had been framed. Evidence was led by the parties on those issues.
Arguments were advanced on those issues. Therefore, this question has been agitated by the
parties in all the Courts. Thus even though there was no formal prayer was asked for (sic), no
prejudice has been caused to the appellant inasmuch as he has not been prevented from leading
evidence on this aspect and has not been precluded from raising contentions in this behalf. In our
view, all that was necessary to cure the defect was an amendment by incorporating one prayer.
This could have been done at any stage. In this view of the matter and particularly in view of the
fact that we are in agreement with the findings that the property is a trust property and that the
lease in question was not for consideration or for legal necessity, we see no reason to
interfere.”
The above said observation of the Supreme Court would aptly apply to the facts of the present case.
28. Here is a case in which, we are of the view that the attitude and conduct of the
appellants/defendants have to be taken note of for the purpose of deciding the issue. The appellants are
defendants in O.S. No.209 of 1996 and O.S.No.63 of 1995. They defended the suits as if the property has
been allotted to Ramanujam Naidu and the said Ramanujam Naidu executed a Will in favour of his foster
son Ramadoss Naidu and accordingly to his heirs. Again, when the suits were pending, in a desparation to
get the property somehow or the other, Dhanalakshmi and Ramadoss filed another suit in O.S. No.38 of
1995 (renumbered as O.S. No.353 of 1997) before the District Munsif, Trichy for injunction against the
plaintiffs in O.S.No.63 of 1995 or their predecessors in title. The daughter of Ramadoss Naidu Amutha
along with one Palaniammal filed a suit before the District Munsif, Trichy in O.S. No.866 of 1996
(renumbered as O.S. No.356 of 1997) claiming oral tenancy from the plaintiff in O.S. No.209 of 1996 in
respect of the very same suit property. Then another suit came to be filed in O.S. No.258 of 1996 before
District Munsif, Trichy (renumbered as O.S. No.359 of 1997) on the basis of lease with Vanitha, one of the
daughters of the Ramadoss Naidu and for injunction against the husband of the plaintiff in O.S. No.209 of
1996 and others (Defendants in O.S.No.353 of 1997). Likewise, in suit in O.S. 111 of 1997 (renumbered as
O.S.No.404 of 1997) has been filed by Malarvizhil and Amutha, daughters of Ramadoss Naidu against the
plaintiffs in O.S. No.63 of 1995 as if they are lessees of their own father Ramadoss Naidu of the land. The
desparation of the defendants is manifestly made clear from the filing of suit after suit as stated above. If
the relief of declaration is not granted, it is obvious that several spate of suits would be filed once again by
the appellants resulting in multiplicity of litigation.
29. The Supreme Court, in the case of Bhagwan Swaroop v. Mool Chand, (1983) 2 SCC 132 has
observed that the laws of procedure by themselves do not create any impediment or obstruction in the
matter of doing justice to the parties. On the other hand, the main purpose and object of enacting
procedural laws is to see that justice is done to the parties. In the absence of procedural laws regulating
procedure as to dealing with any dispute between the parties, the cause of justice suffers and justice will be
in a state of confusion and quandary. Difficulties arise when parties are at default in complying with the
laws of procedure. As procedure is aptly described to be the hand-maid of justice, the Court may in
appropriate cases ignore or excuse a mere irregularity in the observance of the procedural law in the larger
interest of justice. It is always to be borne in mind that procedural laws are as valid as any other law and are
enacted to be observed and have not been enacted merely to be brushed aside by the Court. Depending on
the facts and circumstances of a particular case in the larger interests of administration of justice the Court
may and the Court in fact does, excuse or overlook a mere irregularity or a trivial breach in the observance
of any procedural law for doing real and substantial justice to the parties and the Court passes proper orders
which will serve the interests of justice best.
30. In the very same judgment, the Court observed that laws of procedure are devised for
advancing justice and not impeding the same. The Supreme Court in that judgment quoted from the
decision in the case of Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425, wherein it was
observed that a code of procedure is designed to facilitate justice and further its ends; not a penal enactment
for punishment and penalties; not a thing designed to trip people up. This was reaffirmed in the decision in
the case of Kalipada Das v. Bimal Krishna Sen Gupta, (1983) 1 SCC 14.
31. The appellants/defendants are also not in a position to advance any argument to the effect that
because of the action of the Court in granting the declaratory relief by directing the plaintiff to pay the
court-fee, substantial prejudice has been caused to the appellants/defendants. The parties were alive to
the occasion to the effect that they are fighting for title only. In the absence of any prejudice caused or
likely to be caused to the appellants/defendants, the procedure adopted by the Court, when all the relevant
materials available before it, cannot vitiate the proceedings.
32. In somewhat comparable facts, the Supreme Court in the case of Corporation of City of
Bangalore v. M.Papaiah, (1980) 3 SCC 612, has held that for non-seeking of relief of declaration, a suit for
injunction cannot be dismissed. That was a suit filed for decree of perpetual injunction restraining the
Corporation from interfering with the possession of the plaintiff. The case of the Corporation was that
the disputed area was acquired for house on a burial ground under G.O. and compensation was paid to the
plaintiffs out of Municipal funds and land was in possession of the defendants since then. The plaintiff’s
case was that the alleged G.O. was cancelled and the land settled under another G.O. to persons who
subsequently sold it to the plaintiff. The plaintiff also got his name entered into the revenue records. The
suit was decreed by the trial Court, but the decision was reversed in the first appeal. The plaintiff’s second
appeal was allowed by the High Court and the trial Court’s decision was restored. In this factual situation
of the case, the Supreme Court held that the foundation of the claim of the plaintiff was title which was
pleaded in the earlier part of the plaint and for deciding the nature of the suit, the entire plaint has to be read
and not merely, the relief portion. The plaint in that case does not leave any manner of doubt that the suit
has been filed for establishing title of the plaintiff and on that basis, getting an injunction against the
Corporation. The court-fee payable was also assessed accordingly.
 33. The above observations of the Supreme Court perfectly match with the facts of the present case
and thus we find no justifiable reasons to reverse the judgment of the trial Court.
34. For all the above reasons, we are of the view that all the appeals deserve to be dismissed and
are accordingly dismissed. No costs.
Appeals dismissed.

[2008 (1) TNCJ 193 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI-BENCH)
BEFORE:
P.R. SHIVAKUMAR, J.
SAMUTHRAM @ SEMBULINGAM AND OTHERS ...Appellants
Versus
KADALRAJAN AND OTHERS ...Respondents
[S.A. (M.D.) No. 1093 of 1996, decided on 17 July, 2007]
th

(A) Civil Procedure Code, 1908—Section 100—Second appeal—No adverse inference should
be drawn for the non-production of a document which is inadmissible in evidence—Courts
below did not cast the burden of disproving title of plaintiff on the defendants—Courts below
properly marshalled the evidence adduced by the both sides—Recorded finding that the plaintiffs
had established their title to the entire extent shown in the description of item 2 of the suit properties
—Partition deed of 25-5-1953—An ancient document of more than 30 years old—Court below
committed no infirmity or discrepancy in relying on such document in absence of any other concrete
evidence to prove the contents of the said document to be incorrect—Well considered finding—
No interference warranted. (Paras 10 and 11)
(B) Civil Procedure Code, 1908—Order XLI, Rule 27—Additional evidence—No case
established for granting of permission—Application dismissed.
(Para 12)
Counsel.—Mr. M. Muthugeethayan for Mr. Rama Jegadeesan for the appellants; Mr. S.
Venkadeswaran, for the respondents.
JUDGMENT
P.R. SHIVAKUMAR, J.—The defendants in the original suit are the appellants in this second
appeal. The plaintiffs in the original suit are the respondents herein. The respondents herein instituted the
original suit O.S.No.181/1993 on the file of the Additional District Munsif, Srivilliputhur against the
appellants herein for the relief of declaration and permanent injunction in respect of the suit property
comprised in Survey No.935/1.
2. The averments made in the plaint by the respondents herein can be briefly stated as follows:
The suit property was purchased by Ganapathi Ammal, the mother of the plaintiffs from one
Chinnasamy Nadar under a registered sale deed dated 09.03.1987 and was in possession and enjoyment of
the same till 29.08.1988. On 29.08.1988 the said Ganapathi Ammal gifted the said property to the
respondents/plaintiffs. The gift was accepted by the respondents and from the date of gift settlement deed,
the suit property came to be exclusively possessed and enjoyed by the respondents herein. The vendor of
Ganapathi Ammal had earlier purchased the said property from one Sakthivel Nadar, who got it in a
partition that took place in his family. The vendor of Chinnasamy Nadar, namely Sakthivel Nadar is none
other than the brother of the appellants/defendants. The defendants do not have any manner of right or title
over the suit property. The appellants/defendants made a demand for payment of a lump sum and the said
demand was turned down by the respondents/plaintiffs, pursuant to which, the appellants/defendants are
trying to interfere with the respondents’/ plaintiffs’ peaceful possession and enjoyment of the property.
Thereby, they are trying to blackmail the respondents/plaintiffs. On 27.03.1993 and again on 29.03.1993,
the appellants/defendants prevented the respondents/plaintiffs from putting up constructions in the suit
property and hence the suit for declaration of their title and consequential permanent injunction in respect
of the suit property.
3. The case of the appellants/defendants, in brief, is as follows:
There is no dispute regarding the first item of suit property. So far as the second item of suit
property is concerned, the appellants/defendants accept the title of the respondents/plaintiffs to the plot
measuring 33 feet east-west and 18 feet north-south. But in spite of restricting their claim to the above said
measurement, the respondents/plaintiffs have made a claim that their property measures east-west 42 feet
instead of 33 feet. Sakthivel Nadar is the first wife’s son of Sundara Nadar, whereas the
appellants/defendants are the sons of the above said Sundara Nadar through his second wife Rakkammal.
After the death of Sundara Nadar, a partition of the family properties was effected between the above said
Sakthivel Nadar on the one hand and the mother of the appellants/defendants on the other hand. In the said
partition, 3/4th share was allotted to the appellants/defendants and 1/4th share in the family properties was
allotted to the said Sakthivel Nadar as per the division made by the Panchayatdars on 09.08.1953. The
terms of partition were reduced to writing by way of a “Kaithadi Baga Udanpadikkai Pathiram” (ifj;jo ghf
cld;gof;if gj;jpuk;). In the said partition, a plot measuring east-west 7 yards and north-south 6 yards shown
‘ABCD’ in the rough sketch annexed to the written statement, along with a thatched house standing thereon
and another plot lying on the south of east-west common path measuring east-west 11 yards and
north-south 6 yards shown as ‘EFGH’ in the above said rough sketch were allotted to Sakthivel Nadar. In
case Sakthivel Nadar has conveyed the property citing incorrect measurements and conveyed more extent
than what was allotted to him in the partition, such a sale deed could not be a genuine one. The said sale
deed shall not be valid and will not bind the appellants/defendants, so far as the excess measurement
indicated above. When the father of the respondents/plaintiffs Chellaiah Nadar put up an asbestos cattle
shed encroaching upon the common path lying on the north of the appellants’/defendants’ property, a
panchayat was convened on 26.12.1986, in which the said Chellaiah Nadar agreed to remove the
encroachment and executed an agreement to that effect on 25.12.1991. In fact, pursuant to the above said
agreement, the encroachment was removed by Chellaiah Nadar. As he was made to remove the
encroachment, the respondents/plaintiffs developed a grudge against the appellants/defendants and hence
have come forward with the suit for the above said reliefs with false and imaginary allegations
regarding the incidents constituting cause of action as if they were prevented by the appellants/defendants
on 27.03.1993, when they brought the materials for putting up construction in the disputed land. The
appellants/defendants do not have any objection for making any development within the property of the
respondents/plaintiffs measuring east-west 33 feet and north-south 18 feet.
4. The trial Court framed as many as 6 issues and in the trial conducted before the trial Court, one
witness was examined and four documents were marked as Exs.A-1 to A-4 on the side of the plaintiffs,
who are the respondents in this second appeal. On the side of the defendants, who are the appellants in this
second appeal, three witnesses were examined and four documents were marked as Exs.B-1 to B-4. At the
conclusion of trial, on a consideration of pleading and evidence, the trial Court decreed the suit as
prayed for and granted the relief of declaration and permanent injunction in respect of both items of suit
properties. Aggrieved by and challenging the judgment and decree of the trial Court, the appellants
herein/defendants filed an appeal in A.S.No.291 of 1994 on the file of the learned Additional Subordinate
Judge, Srivilliputhur, which was also dismissed by the learned Additional Subordinate Judge,
Srivilliputhur, confirming the judgment and decree of the trial Court. Hence the appellants/defendants have
come forward with this second appeal. In this second appeal projecting the following as the substantial
questions of law, according to the appellants, involved in this second appeal:
“(1) Whether the Courts below are justified in wrongly throwning burden on the
appellants/defendants to prove the case that the plaintiffs have no title to the suit property
in view of the non-production of the partition deed relied upon in the written
statement?
(2) Whether the Courts below are justified in decreeing the suit in favour of the plaintiffs on
the strength of alleged lapses on the part of the defendants in not producing the partition
deed dated 9.8.1953, ignoring the basic principles of law that the plaintiffs have to
establish their title in the suit for declaration and injunction?”
 5. This Court heard the submission made by Mr.M.Muthugeethayan, learned counsel appearing for
the appellants and also by Mr.Venkadeswaran, learned counsel appearing for the respondents and paid its
anxious consideration to the same.
6. Two items of properties have been shown in the plaint schedule. In respect of both items, the
respondents/plaintiffs had prayed for the reliefs of declaration and permanent injunction. So far as the first
item of the suit property is concerned, the title and enjoyment of the respondents/plaintiffs have not
been disputed. The dispute between the parties, as seen from the pleadings, is confined to a portion of the
second item of suit property measuring east-west 9 feet and north-south 18 feet lying in between the house
of the respondents/plaintiffs and the vacant site belonging to the appellants/defendants, which lies
immediately on the east of the second item of suit property.
7. According to the respondents/plaintiffs, the second item of suit property measuring east-west
42 feet and north-south 18 feet was allotted to one Sakthivel Nadar in an oral partition that took place
between himself and the mother of the appellants herein/defendants and that thereafter the said Sakthivel
Nadar sold it to Chinnasamy Nadar from whom the mother of the respondents/plaintiffs purchased it. The
further case of the respondents/ plaintiffs is that they got it from their mother by way of a registered
gift settlement deed. Ex.A-3 is the certified copy of the sale deed dated 25.05.1955 executed by the
above said Sakthivel Nadar in favour of Chinnasamy Nadar. Ex.A-2 is the original registered sale deed
dated 09.03.1987 executed by Chinnasamy Nadar in favour of Ganapathi Ammal, the mother of the
respondents/plaintiffs. Ex.A-1 is the original registered gift settlement deed dated 29.08.1988 executed by
Ganapathi Ammal in favour of her sons, the respondents herein/plaintiffs. In all the three documents, the
second item of the suit property was described to be a plot measuring east-west 14 yards (equal to 42
feet) and north-south 6 yards (equal to 18 feet). There is no dispute regarding the north-south measurement
and the dispute is confined to the east-west measurement. The respondents herein/plaintiffs have traced
their title to the earliest document Ex.A-3 dated 25.05.1995, to show that the second item of suit property
allotted to Sakthivel Nadar in the family partition was of the east-west measurement of 42 feet. The above
said document clearly corroborates the oral evidence of P.W.1 in this regard. On the other hand, the first
appellant/first defendant who was examined as D.W.1 admitted that the partition between Sakthivel Nadar
and the mother of the appellants representing also the appellants took place in the year 1953. But he
has contended in his evidence that the east-west measurement of the property allotted to Sakthivel Nadar
was only 33 feet and not 42 feet. At the same time, D.W.1 would admit that the defendants were allotted a
property which lies immediately on the east of the property allotted to Sakthivel Nadar and that the east-
west measurement of the appellants’/defendants’ property was 33 feet. In support of their contention that
the second item of suit property allotted to Sakthivel Nadar was only 33 feet in length, the
appellants/defendants relied on the evidence of D.Ws.1 to 3 and an unregistered partition deed dated
09.08.1953. A panchayat agreement dated 26.12.1986 marked on the side of the appellants/defendants as
Ex.B-3 was also relied on. Admittedly, the partition deed sought to be relied on by the
respondents/plaintiffs was unregistered. Hence, prima facie the same would not be admitted in evidence. It
is obvious from the records that the appellants/ defendants did not produce the above said
unregistered partition deed, knowing fully well that the same would not be admitted in evidence.
8. But curiously, the learned counsel for the appellants argued that the respondents/plaintiffs who
were having the above said unregistered partition deed in their possession failed to produce the same, in
spite of the fact that the same was referred to in the written statement of the appellants/defendants and that
hence an adverse inference should have been drawn against the respondents/plaintiffs. This Court finds no
substance in the above said contention raised by the learned counsel for the appellants/defendants. There is
no justification in contending that an adverse inference should be drawn for the non-production of a
document which is inadmissible in evidence. The appellants/defendants have attempted to achieve in an
indirect way what they cannot do directly. There is no substance in the above said argument advanced by
the learned counsel for the appellants and hence the said argument has got to be discountenanced. That
apart, the said argument advanced on behalf of the appellants is not in consonance with the first
question of law raised in the appeal. According to the appellants, the Courts below wrongly cast the burden
on the appellants to prove the failure of respondents/plaintiffs title, but in fact it is not so. After going
through the relevant parts of the judgments of the trial Court as well as the first appellate Court, this Court
is not inclined to accept the above said contention raised on behalf of the appellants/defendants. The Courts
below, on an appreciation of evidence adduced on both sides, have given a clear finding that the case of the
plaintiffs regarding the east-west measurement of the second item of suit properties stood proved by the
evidence of P.W.1 and Exs.A-1 to A-3. Likewise, the Courts below have given a clear finding that the
defence plea made by the appellants/defendants to the effect that the east-west measurement of the
second item of suit properties allotted to Sakthivel Nadar in the family partition was 33 feet alone and not
42 feet was not substantiated by reliable evidence. In order to show that the respondents/plaintiffs claimed
title over and above the extent allotted to their predecessor-in-title in the partition, the appellants/
defendants also relied on the evidence of D.Ws.2 and 3 and Ex.B-3-Panchayat Agreement. Ex.B-3 –
Panchayat Agreement does not lend any support to the case of the defendants.
9. Admittedly, the second item of suit property lies on the east and the property abutting the second
item of suit property on the east belongs to the appellants/defendants. Admittedly on the north of the above
said properties, there is an east-west common passage. From Ex.B-3- Panchayat Agreement, it is obvious
that the respondents/plaintiffs, while erecting a cattle shed in the second item of suit properties in and
around 1986, had encroached upon a portion of the above said east-west passage, pursuant to which, a
panchayat was convened and the father of the respondents/plaintiffs agreed to remove the encroachment
on or before 25.12.1991 and subsequently, the time was extended till the end of December 1993. It is also
not in dispute that pursuant to the said panchayat agreement, the encroachment made on the common
passage was subsequently removed by the respondents/plaintiffs. From Ex.B-3, it is found that the said
passage running east-west on the north of the second item of suit properties and the property belonging to
the appellants/defendants is 12 feet wide. The said document contains no clue regarding the east-west
length of the second item of suit properties. There is no controversy regarding the north-south
measurement of the second item of suit properties. As such, the Courts below have rightly held that Ex.B-3
will not, in any way, advance the case of the appellants/defendants. On the other hand, reliance was made
also on the report and plan of the Advocate Commissioner which were marked as Exs. C-1 and C-2. It is
quite clear from the said documents that the east-west length of the second item of suit property is 42 feet
and that the space left on the eastern side by the plaintiffs while constructing their house also forms part of
the second item of suit property allotted to Sakthivel Nadar in the family partition.
10. It is the admitted case of the appellants/defendants that the property allotted to Sakthivel Nadar,
the predecessor-in-title of the respondents/ plaintiffs and the property allotted to the
appellants/defendants are abutting each other and that there is no other property in between the two. While
so, the report and plan of the Advocate Commissioner clearly show that the disputed portion of the second
item of suit property is part and parcel of the property allotted to Sakthivel Nadar. The
appellants/defendants have also admitted that there is no deficiency in the east-west measurement of their
plot and that the entire length of 33 feet is intact. The rough sketch prepared and produced by the
defendants, marked as Ex.B-4, will also clearly show that the east-west measurement of the second item
of property is 42 feet and beyond that 42 feet the plot of the appellants/defendants measuring 33 feet in
length situates.
11. The above said discussions will clearly show that the Courts below did not cast the burden of
disproving title of the plaintiffs on the defendants; that the contention of the appellants that the Courts
below decreed the suit in favour of the plaintiffs on the strength of the alleged lapses on the part of the
defendants in not producing the partition deed dated 09.08.1953 is untenable and that in fact, the Courts
below have properly marshalled the evidence adduced on both sides and came to the conclusion that the
plaintiffs had established their title to the entire extent shown in the description of item 2 of the suit
properties and that the defendants’ plea that only a part of the second item of suit property (33 x 18) alone
belonged to the respondents/plaintiffs could not be accepted. When the respondents/plaintiffs were able to
produce documents dating back to 25.05.1953 to establish that a plot measuring 42 feet and 18 feet,
described as the second item of suit property was allotted to Sakthivel Nadar, the predecessor-in-title of the
respondents/plaintiffs. The said document is an ancient document of more than 30 years old. In the absence
of any other concrete evidence to prove the contents of the said document to be incorrect, there is no
infirmity or discrepancy in relying on the said document to accept the contention of the
respondents/plaintiffs in this regard. The well considered concurrent findings of the Courts below regarding
the east-west length of the second item of suit property cannot be interfered with and in fact there is no
reason, whatsoever, justifying any such interference in this appeal. The appellants have miserably
failed in substantiating their appeal on the substantial questions of law alleged by them to be involved in
this appeal. The Courts below have not committed any error in applying the provisions of law and legal
propositions. There is no merit in the appeal and the same deserves to be dismissed with costs.
12. Along with the appeal the appellants have also filed a petition under Order XLI, Rule 27, C.P.C.
seeking permission to produce additional documentary evidence in this second appeal. The documents
sought to be produced is the xerox copy of the alleged unregistered partition deed dated 09.08.1953. The
non-admissibility of the said document to prove the terms of admitted partition has been pointed out supra.
In addition to that, the petitioners (appellants) have not established a case for granting permission under
Order XLI, Rule 27, C.P.C for production of additional evidence. The conditions provided therein have not
been proved to exist. Hence, the said petition also deserves to be dismissed.
13. In the result, this Second Appeal is dismissed with costs and C.M.P.No.10684 of 1996 is also
dismissed.
Second appeal dismissed.

[2008 (1) TNCJ 199 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI-BENCH)
BEFORE:
P.R. SHIVAKUMAR, J.
THIRUMENI ...Appellant
Versus
ARULMIGHU VINAYAKAR AND DHROWPATHI
AMMAN TEMPLES STATUES, THROUGH ITS
EXECUTIVE OFFICER MANICKAM ...Respondent
[S.A. (M.D.) No. 1776 of 1996, decided on 10 August, 2007]
th

(A) Civil Procedure Code, 1908—Section 100—Second appeal— Notice to quit was perfectly
valid in accordance with Section 106 of T.P. Act, 1882—When a tenant sets up title in himself and
denies the title of the landlord, that itself will result in the forfeiture of his tenancy rights—Not be
entitled to a notice of termination under Section 106 of the T.P. Act, since the termination in case of
forfeiture is automatic—Question relating to the validity of notice not raised at the earliest
opportunity—Deemed to have been waived by tenant—Could not be allowed to agitate in the appeal
for the first time—Finding of the lower appellate Court is just and proper—No interference
warranted.
(Paras 15, 16, 18 and 19)
(B) Transfer of Property Act, 1882—Section 106—Notice under—When a tenant is not
entitled for. (Para 16)
(C) Chennai City Tenants’ Protection Act, 1921—Benefits conferred—Tenant of
property belonging to the temple which is a public religious institution—Cannot have any of the
benefits conferred by the Act. (Para 20)
Case law.—AIR 1977 SC 1120; AIR 1984 Ker 214; AIR 1972 SC 2091.
Counsel.—Mr. K.S. Vamsidhar, for the appellant; Mr. N.C. Ashok Kumar, for the respondent.
Important Point
Tenant having suffered forfeiture of tenancy right by denying the title of the landlord and denying
the tenancy itself, had mode himself ineligible to get the benefits of the provision under the City Tenants’
Protection Act, 1921.
JUDGMENT
P.R. SHIVAKUMAR, J.—This second appeal is directed against the judgment and decree of the
First Additional Subordinate Judge, Trichirappalli dated 12.02.1993 made in A.S.No.230 of 1991 by which
the judgment and decree of the trial Court (District Munsif, Thuraiyur) passed in O.S.No.3555 of 1979 was
confirmed.
2. The respondent/plaintiff temple filed the suit for the following reliefs:
(i) Directing the appellant/defendant to deliver vacant possession of the suit property to the
plaintiff or in the alternative, declaring the plaintiff’s title to the suit property and as a
consequential relief directing the defendant to deliver possession of the suit property to the
plaintiff;
(ii) For a direction to the appellant/defendant to pay a sum of Rs.350/- either as arrears of rent or
as damages for use and occupation; and
(iii) For payment of future mesne profits from 01.09.1979.
3. According to the respondent/plaintiff temple, the appellant/defendant was permitted to occupy
the suit site on a monthly rental basis by the previous trustee of the temple and the agreed rent was Rs.10/-
per mensum. After the appointment of a fit person to administer the affairs of the temple, who took charge
on 01.10.1976, the appellant/defendant failed to pay the rent for the above said site in spite of a number of
reminders and the same made the fit person to issue a notice on 10.08.1977 terminating the tenancy and
directing the appellant/defendant to vacate the premises by the end of August 1977, namely
31.08.1977. The appellant/defendant, who received the notice, sent a reply dated 24.08.1977 denying the
title of the plaintiff temple and setting up title in himself alleging that he had purchased the suit site from
the previous trustee on 05.02.1975. Contending that the above said sale deed executed in violation of the
provisions of the Hindu Religious and Charitable Endowments Act, 1959 is null and void and hence will
not bind the plaintiff institution, the respondent/plaintiff has filed the above said suit for the above said
reliefs.
4. The suit was resisted by the appellant/defendant by filing a written statement containing the
following averments:
There was suppression of facts and the plaintiff had come to the Court with a false case to deprive
the defendant of his legitimate right. Originally the father of the appellant/defendant was the lessee who
took the suit site on lease from the hereditary trustee of the temple about 50 years prior to the filing of the
suit and put up constructions for his use and occupation as his residence. After the death of his father, the
appellant/defendant continued as a tenant of the suit site, remodelled the superstructure and was using the
eastern portion of the superstructure as his residence and was carrying on his welding business in the
western portion. Meanwhile, on 05.02.1975 the hereditary trustee of the plaintiff temple sold the suit
site to the defendant for a valuable consideration of Rs.3,100/- for binding and necessary purpose of the
temple. After the said sale, the appellant/defendant became the owner of the suit site also and thereafter, the
jural relationship of landlord and tenant did not continue. Therefore, there was no subsisting lease or
tenancy to be terminated by the issue of a notice. The plaintiff temple also lost the right to demand any rent.
In any event, the appellant/defendant, being the owner of the superstructure, was entitled to the
benefits of the City Tenants’ Protection Act, 1921. Based on the said allegations, the appellant/defendant
had prayed for the dismissal of the suit in its entirety.
5. The trial Court framed as many as six issues and conducted trial in which the Executive Officer
in charge of the plaintiff temple was examined as P.W.1 and four documents were marked as Exs.A-1 to A-
4 on the side of the plaintiff. Two witnesses including the appellant/defendant were examined as D.W.1
and D.W.2 and three documents were marked as Exs.B-1 to B-3 on the side of the appellant/defendant. The
report and plan submitted by the Advocate Commissioner appointed by the trial Court were marked as
Court documents Exs.C-1 and C-2.
6. After hearing arguments advanced on both sides, the learned trial Court (District Munsif,
Thuraiyur) came to the conclusion that the sale deed executed by the former trustee of the plaintiff temple
in favour of the defendant was null and void and hence the defendant had not acquired any title in respect
of the suit site. The trial Court also held that the notice terminating tenancy was valid and that the claim of
the defendant to the benefits under the provisions of the City Tenants’ Protection Act, 1921 was not
available to him and hence decreed the suit as prayed for with cost.
7. The said judgment and decree of the trial Court was challenged by the appellant/defendant before
the First Additional Subordinate Judge, Trichirappalli in A.S.No.230 of 1991. The learned First Additional
Subordinate Judge, Trichirappalli, besides concurring with the findings of the trial Court regarding the
validity of the sale deed executed in favour of the defendant by the erstwhile trustee and the statutory notice
issued under Section 106 of the Transfer of Property Act, 1882 and the finding of the trial Court regarding
the defendant’s claim of entitlement to the protection under the provisions of the City Tenants’ Protection
Act, 1921, has also given a finding to the effect that even assuming that the statutory notice under Section
106 of the Transfer of Property Act, 1882 issued by the plaintiff was not proper, there was waiver on the
part of the appellant/defendant and hence he was not entitled to raise the question of validity of
the said notice at the appellate stage. The learned appellate Judge also held that by setting up title in himself
and denying the plaintiff’s title, the appellant/defendant had lost his right to claim the benefits under the
City Tenants’ Protection Act, 1921 and hence dismissed the appeal with cost, confirming the
judgment and decree of the trial Court.
8. Challenging the said judgment and decree of the First appellate Court, by which the judgment
and decree of the trial Court stands confirmed, the appellant/defendant has come forward with this second
appeal.
9. This Court heard the arguments advanced by Mr.K.S.Vamsidhar, learned counsel on behalf of the
appellant and also by Mr.N.C.Ashok Kumar, learned counsel on behalf of the respondent and also perused
the records, including the judgments of the lower Courts.
10. Admittedly the suit vacant site measuring east-west 23 feet and north-south 43 feet
originally belonged to the respondent/plaintiff temple and initially the father of the defendant, then, after
his life time, the appellant/defendant happened to be the tenant, in respect of the vacant site till 05.02.1975,
the date of execution of the sale-deed Ex.B-1 by the then trustee of the plaintiff temple in favour of the
appellant/defendant. It is also not in controversy that the superstructure standing thereon belonged to the
appellant/defendant and after the date of Ex.B-1 sale deed, the defendant stopped payment of rent for the
vacant site to the plaintiff temple. Meanwhile, the fit person appointed to manage the affairs of the
plaintiff temple issued a notice under Ex.A-1 dated 11.08.1977 terminating the tenancy and directing the
defendant to deliver possession of the suit vacant site by the end of 31.08.1977. For the above said
notice, the appellant/defendant issued a reply notice under Ex.B-3 dated 25.08.1977 denying the existence
of landlord-tenant relationship between the plaintiff temple and the defendant any longer after the date of
Ex.B-1 sale deed. It is also not in dispute that the tenancy was on a monthly basis at a monthly rent of
Rs.10/-. Soon after the receipt of the above said reply notice, the fit person filed the original suit on behalf
of the plaintiff.
11. It was the specific contention of the plaintiff that Ex.B-1 sale deed allegedly executed by the
former trustee of the plaintiff temple is not valid in the eye of law and the same is null and void, in the light
of the provisions contained in Section 34 of the Tamil Nadu Hindu Religious and Charitable
Endowments Act, 1959. For the sake of convenience, Section 34 of the Act is extracted here under:
“Alienation of immovable trust property.—(1) Any exchange, sale or mortgage and any lease for
a term exceeding five years of any immovable property, belonging to, or given or endowed for the
purposes of, any religious institution shall be null and void unless it is sanctioned by (the
Commissioner) as being necessary or beneficial to the institution:
Provided that before such sanction is accorded, the particulars relating to the proposed transaction
shall be published in such manner as may be prescribed, inviting objections and suggestions with
respect thereto; and all objections and suggestions received from the trustee or other persons
having interest shall be duly considered by (the Commissioner)”
12. The trial Court as well as the first appellate Court held that Ex.B-1 sale deed relied on by the
appellant/defendant in support of his claim that he had become the owner of the suit site also was null and
void in view of the above said provision. Though the said finding of the Courts below is stated to be
erroneous in one of the grounds set out in the grounds of appeal, the same has not been framed as a
substantial question of law involved in this appeal by the appellant himself. That apart, the learned counsel
for the appellant, while advancing arguments on behalf of the appellant in this second appeal, has
conceded that the finding of the Courts below regarding the validity of the sale deed executed by the trustee
in respect of the property belonging to the temple cannot be successfully challenged and that the lower
Courts have correctly held the sale to be null and void applying the provisions found in Section 34 of the
Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.
13. It is nobody’s case that the Tamil Nadu Hindu Religious and Charitable Endowments Act,
1959 is not applicable to the plaintiff temple. In fact, in accordance with the provisions of the said Act only,
fit person has been appointed. It is also the admitted case of the appellant/defendant that the displaced
trustee who executed Ex.B-1 sale deed in favour of the appellant was a hereditary trustee and that the
plaintiff temple is a public temple having a hereditary trustee. Section 34 of the Tamil Nadu Hindu
Religious and Charitable Endowments Act, 1959 clearly lays down the law that any alienation of the
immovable properties belonging to the Public religious institution shall be null and void, if such alienation
of the above said property is made without the prior sanction of the Commissioner, H.R. & C.E.
Admittedly, before executing Ex.B-1 sale-deed, no sanction was obtained from the competent authority for
the same. Therefore the Courts below have rightly held that Ex.B-1 sale deed is null and void and that the
same had not put an end to the title of the plaintiff temple to the suit site. No interference is warranted in
the second appeal with the said finding of the lower Courts and the same deserves to be confirmed.
14.1. “(i) Whether the notice to quit is valid in law? and
(ii) Whether the finding of the lower appellate Court that the plaintiff was not entitled to
protection under the City Tenants’ Protection Act is correct in law?”—are the two other issues
raised by the appellant in this appeal as the substantial questions of law involved in the
second appeal.
14.2. The trial Court, after holding that the tenancy was a month to month tenancy terminable by the
issue of a 15 days notice terminating the tenancy with the end of an English Calendar month and that the
same was properly done by the fit person of the plaintiff temple by issuing Ex.A-1 - notice terminating the
tenancy by the end of the English Calendar month August 1977, i.e. by 31.08.1977. The said finding of the
trial Court was challenged before the lower appellate Court on the ground that the tenancy was sought to be
terminated forthwith, even though the appellant/defendant was directed to vacate and hand over possession
by the end of the Calendar month and hence, the notice to quit was not in accordance with the letter and
sprit of Section 106 of the Transfer of Property Act, 1882. The above said aspect was dealt with by the
learned First Additional Subordinate Judge, Tiruchirapalli (lower appellate Court) in detail. After referring
to various judgments of the High Court as well as Supreme Court, the lower appellate Court came to the
conclusion that the intention of the landlord in issuing the notice should be culled out from the contents of
the notice as to whether the tenancy was terminated forthwith or the same was terminated by the end of the
Calendar month by which the tenant was asked to vacate and hand over possession. By adopting such a
method, the lower appellate Court came to the conclusion that the tenancy was terminated by the end of
the Calendar month and not forthwith. In support of the above said proposition, the learned lower appellate
Judge has relied on the judgment of the Honourable Supreme Court in Bhagabandas Agarwalla v.
Bhagwandas Kanu reported in AIR 1977 SC 1120, in which the Honourable Supreme Court has made the
following observation:
“Now, it is settled law that a notice to quit must be construed not with a desire to find faults in it,
which would render it defective, but it must be construed ut res magis valeat quam pereat. “The
validity of a notice to quit”, as pointed out by Lord Justice Lindley, L.J. in Sidebotham v. Holland,
(1895) 1 QB 378 “ought not to turn on the splitting of a straw”. It must not be read in a hyper-
critical manner, nor must its interpretation be affected by pedagogic pendantism or over refined
subtlety, but it must be construed in a common sense way.”
15. For proper appreciation, the relevant portion of the notice is hereby extracted:
“,jdhy; ,e;j Tenancy a[k; ,jd; K:yk; uj;J bra;ag;gLfpwbjd;Wk;> jhq;fs; ,e;j ,lj;ij 31.8.77 jP Koa
fhypbra;J vd;fl;rpf;fhuh;trk; RthjPdk; bfhLf;f ntz;Lbkd;Wk;> thlifghf;fpiaa[k; bfhLf;f
ntz;Lbkd;Wk;> ,y;yhtpl;lhy; jq;fs; nghpy; RthjPdj;jpw;Fk; thlif ghf;fpf;Fk; jhth bra;J rpyt[ld; ghpfhuk;
njlg;gLk; vd;gija[k; mwpat[k;”
The words ‘,jd; K:yk; uj;J bra;ag;gLfpwbjd;Wk;’ cannot be interpreted to mean that the
tenancy was terminated with effect from the date on which the notice was issued. What was meant by the
plaintiff by issuing the said notice is that the tenancy was terminated by the issue of the said notice. “With
effect from on which date the tenancy was terminated?” —will be the next question that arises for
consideration. The answer is found in the next line of the notice by which the tenant was required to vacate
and hand over possession by the end of 31.08.1977. A conjoint reading of both the sentences will give a
clear picture that the tenancy was terminated by 31.08.1977, namely by the end of an English Calendar
month. Ex.A-1 notice was issued on 11.08.1977. The very next day itself, namely on 12.08.1977 itself, the
same was received by the appellant/defendant. Clear 15 days’ time was granted for vacating the suit
site. It is quite obvious from the above said facts that Ex.A-1 notice was issued in strict compliance with
Section 106 of the Transfer of Property Act, 1882. Therefore, this Court endorses its approval to the finding
rendered by the learned First Additional Subordinate Judge, Trichirapalli (first appellate Court) that Ex. A-
1 notice to quit was perfectly valid in accordance with Section 106 of the Transfer of Property Act, 1882.
16. The further observation made by the learned Additional Subordinate Judge (first appellate
Court) is that assuming Ex.A-1 notice to be not in accordance with the requirements of Section 106 of
the Transfer of Property Act, even then the appellant/defendant could not claim the benefit of absence of
such a valid notice as the tenancy in his favour stood forfeited under Section 111(g) of the Transfer of
Property Act, 1882 and that the moment he relied on Ex.B-1 - sale deed to set up title in himself and denied
not only the title of the plaintiff temple but also the jural relationship of landlord and tenant, his rights
under the tenancy came to an end. When a tenant sets up title in himself and denies the title of the landlord,
that itself will result in the forfeiture of his tenancy rights and thereafter, he shall not be entitled to a notice
of termination under Section 106 of the Transfer of Property Act, 1882, since the termination in case of
forfeiture is automatic.
17.1. The learned lower appellate Judge has also rightly observed that the right to be served with a
notice to quit under Section 106 of the Transfer of Property Act, 1882 is a benefit conferred upon the tenant
and that such a benefit can be waived by the tenant/lessee; that when the tenant/lessee has not chosen
to take any defence in his written statement regarding the validity of the notice to quit, the same would
amount to waiver of notice and that thereafter at a belated stage, say in the appellate stage, he cannot be
allowed to take such a stand. In support of the above said finding, the learned lower appellate Judge has
referred a judgment of the Karnataka High Court in M/s.Sudarshan Trading Co. Ltd. v. L.D.’Souza
reported in AIR 1984 Karn 214 and a judgment of the Honourable Supreme Court in Gauri Shankar v.
Hindustan Trust Ltd. reported in 1972 SC 2091.
17.2. In Gauri Shankar v. Hindustan Trust Ltd. reported in AIR 1972 SC 2091, when no plea had
been taken in the original written statement that a valid notice to terminate the contractual tenancy had not
been served, and subsequently, after a lapse of 8 years, an amendment sought for before the trial
Court itself by the defendant to introduce such a plea was allowed, the same was held by the Honourable
Supreme Court improper as the gross delay and laches on the part of the defendant in raising such a plea
should have been taken into consideration by the trial Court, while dealing with the petition for
amendment. The relevant passage from the judgment of the Honourable Supreme Court is extracted here
under:
“..... Ultimately when the suit for eviction was filed in 1959 it dragged on for several years. In the
written statement which was originally filed no plea was taken that a valid notice to terminate the
contractual tenancy had not been served and, therefore, the petition for eviction was not
maintainable. The respondent waited for 8 years before seeking an amendment to include a plea
on the absence of such a notice. The trial Court did allow the amendment but in our opinion no
such amendment should have been allowed on account of the gross delay and laches on the part of
the respondent in raising such a plea. In such matters it must be remembered that if a technical
plea of the nature sought to be raised had been raised at an earlier stage the appellant could have
withdrawn the petition for eviction with liberty to file another petition after serving the requisite
notice. By not raising that plea for nearly 8 years a great deal of prejudice was caused to the
appellant....................
In our judgment the course of the litigation between the parties had taken and the manner in which
the plea was sought to be raised by an amendment after eight years of the institution of the
eviction petition and further the abandonment of any contention based on that plea before the
Rent Control Tribunal were more than sufficient to persuade the Court that any argument based on
the absence of a valid notice should not have been allowed.”
17.3. In M/s.Sudarshan Trading Co. Ltd. v. L.D.’Souza reported in AIR 1984 Karn 214, a Division
Bench of the Karnataka High Court, following the above said judgment of the Honourable Supreme Court,
has also made the following observation:
“The same considerations, in our opinion, apply in this case. Even on the assumption that there
was a month to month tenancy it would cause prejudice to the respondent, if appellant is permitted
to raise this ground of invalidity of the notice at this distance of time.”
 18. This Court is of the considered view that the lower appellate Court has correctly come to the
conclusion that the appellant/defendant should be deemed to have waived his right to get a notice to quit
under Section 106 of the Transfer of Property Act, 1882 and proceeded on the assumption that Ex.A-1-
notice was in accordance with Section 106 of the Transfer of Property Act, 1882 and that hence, the
validity of the said notice could not be agitated in the appeal for the first time. The finding of the lower
appellate Court that the tenancy right of the appellant/defendant stood forfeited under Section 111(g) of the
Transfer of Property Act, 1882 by his assertion of title in himself and denial of the plaintiff’s title does not
deserve any interference in this appeal and there is no reason, whatsoever, to interfere with the same.
19. For all the reasons stated above, this Court comes to the conclusion that the above said first
substantial question of law projected by the appellant/defendant has been correctly decided by the lower
Court and that hence, there is no scope for any interference, whatsoever, with the findings of the trial Court
and the lower appellate Court in this regard.
20. “Whether the finding of the lower appellate Court that the plaintiff was not entitled to the
protection under the City Tenants’ Protection Act is correct in law?”-is the next issue projected as a
substantial question of law in this second appeal. The said defence is no longer available to the
appellant/defendant in view of the amendment brought to the City Tenants’ Protection Act, 1921 by Tamil
Nadu Act 2 of 1996 introducing proviso “f” to sub-section (3) of Section 1 of City Tenants’ Protection Act,
1921. The proviso reads thus:
“nothing contained in this Act shall apply to tenancies in respect of any land owned by any
religious institution or religious charity belonging to Hindu, Muslim and Christian or other
religion”.
By virtue of the proviso, all the properties belonging to the public religious institutions and public
religious charities are exempted from the said Act. Therefore, the appellant/defendant who was a tenant in
respect of the property belonging to the plaintiff temple which is a public religious institution, cannot have
any of the benefits conferred by the Chennai City Tenants’ Protection Act, 1921.
21. The other finding of the lower appellate Court that the appellant/defendant having suffered
forfeiture of tenancy rights by denying the title of the landlord and denying the tenancy itself, had made
himself ineligible to get the benefits of the provisions under the City Tenants’ Protection Act, 1921 is based
on sound reasons and no interference can be made in this second appeal regarding the said finding also.
Moreover, the said question has become academic in view of the amendment introduced to the City
Tenants’ Protection Act, 1921 by the Tamil Nadu Act 2 of 1996 providing explanation “f”—Section 1(3)
whereby all the properties belonging to public religious institutions and public religious charities stand
exempted from the said Act.
22. For all the reasons stated above, this Court comes to the conclusion that there is no discrepancy
or infirmity in the judgment of the lower appellate Court confirming the judgment and decree of the trial
Court and that there is no scope for any kind of interference with the same in the second appeal. There is no
merit in the second appeal and the same deserves to be dismissed.
23. In the result, this Second Appeal is dismissed. There is no order as to payment of costs.
Appeal dismissed.

[2008 (1) TNCJ 208 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI-BENCH)
BEFORE:
K. CHANDRU, J.
INDIRA GANDHI COLLEGE FOR WOMEN
COMMITTEE, REP. BY ITS SECRETARY ...Petitioner
Versus
THE STATE OF TAMIL NADU, REP. BY ITS SECRETARY
INFORMATION AND TOURISM DEPARTMENT KURALAGAM,
 CHENNAI AND OTHERS ...Respondents
[W.P. (M.D.) No. 1480 of 2007 and M.P. (M.D.) Nos. 1, 3 and 4 of 2007, decided on 10th July, 2007]
(A) Constitution of India, 1950—Article 226—Land Acquisition Act, 1894—Sections 4 (1) and
6—Acquisition of house and the surrounding land—To establish a memorial in a fitting manner for
the legendary “Thevar” at the place in Thirunagar where he breathed last—Invoking of writ
jurisdiction by purchaser of the property—Petitioner being a land owner cannot raise all kinds of
objections—Not open to question the public purpose because the State being convinced that there is a
public demand—Historical facts in justification of establishing a memorial in memory of
“Thevar”—Unless the purpose is held to be not public purpose, not open to persons like petitioner to
oppose such a move and try to argue that the memorial could be located elsewhere—Duty of every
citizen envisaged under Article 51-A highlighted.
(Paras 5 and 6)
(B) Land Acquisition Act, 1894, (State Amendment)—Section 4 (1-A)—Notification
under, by State Government—Compensation estimated to be Rs. 26 Lakhs—Competency to
issue notification—State Government has power to acquire land and also has issued a notification—
By delegating the power on Commissioner, State does not get denuded of its plenary powers—No
prejudice has been caused to the petitioner by issuance of notification by State Government.
(Para 21)
(C) Practice and procedure—Mere non-quoting of the relevant provisions or misquoting of
the relevant section does not invalidate the Government order.
(Para 22)
(D) Constitution of India, 1950—Article 226—Acquisition proceedings—For public purpose—
Running of school is also a public purpose and to defeat the said purpose any other public purpose
can be pressed into service by the State—Discussed—Contention raised not accepted.
(Paras 24 to 29)
Case law.—1979 (3) SCC 431; 1990 (3) SCC 60; AIR 1968 SC 432; AIR 1998 Mad 180; 1997 (4)
SCC 186.
Counsel.—Mr. K.M. Vijayan, Senior Counsel for Mr. B. Saravanan, for the petitioner; Mr. K.
Balasubramanian Addl. Govt. Pleader for respondents 1 to 5; Mr. M.V. Venkataseshan for respondent 6.
Important Point
Mere non-quoting of the relevant provisions or misquoting of the relevant section does not
invalidate the Government order. So long as such power of the Government exists in terms of exercising
power under Section 17 (4) and the said power is exercised in terms of the circumstances justifying the
exercising of the power, the petitioner cannot find any fault with the same.
JUDGMENT
K. CHANDRU, J.—The short question that arises for consideration is, whether the attempt of the
State Government from establishing a memorial in remembrance of Pasumpon Muthuramalinga Thevar in
the house in which he lived at Tirunagar, Madurai District can be thwarted at the instance of the petitioner,
who became a subsequent owner of the house and the surrounding lands and are also running a fee based
Matriculation School.
2. The first respondent/State expressed its intention of establishing a memorial in a fitting manner
for the legendary Posumpon Murthuramalinga Thevar (popularly known as “Thevar”) at the place in
Thirunagar where he breathed last. The Information and Tourisim (Memorial) Department issued
G.O.Ms.No.229 Department dated 1.12.2005 issuing notification for the acquisition of the land. The said
notification was issued under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter called as “the
Central Act”).
3. The petitioner, who happened to be the purchaser of the said property (purchased in the year
1991) in which the house of Thevar was situated, is running a Matriculation Higher Secondary School,
which is named as Indira Gandhi Memorial Matriculation Higher Secondary School. Apart from several
legal objections raised by the petitioner, the factual objections raised are that there are several other places
where a memorial can be established and there is a doubt whether at all a public purpose is involved in
seeking for the premises by the State and whether the State can pick and choose a place where Thevar had
hardly lived not for very long.
4. Before going into the legal issues, the other issues raised by the learned senior counsel appearing
for the petitioner should be first dealt with.
5. The petitioner being a land owner cannot raise all kinds of objection with reference to the issue
on hand. The only question that they can raise is that their land should not be acquired except by legal
process. It is not open to them to question the public purpose because the State being convinced that there
is a public demand and hence, they having a duty imposed on them, wanting to establish a memorial in
remembrance of Thevar.
6. In this context, it is relevant to refer to Article 51-A (a) and (b) of the Constitution by which it is
the fundamental duty of every citizen to cherish the noble ideals which lead this country from its
enslavement by a colonial power. The said article of the Constitution requires reproduction and it is as
follows:
“51-A. Fundamental duties.—It shall be the duty of every citizen of India—
(a) to abide by the Constitution and respect its ideals and institutions, the National
Flag and the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national struggle for
freedom.”
7. It is also necessary to highlight certain historical facts in justification of establishing a memorial
in memory of Thevar.
Thevar was born on 30.10.1908 to Ukkirapandi Thevar and Indirani Ammal in Posumpon Village in
Ramanathapuram District. At a very young age, he was sucked into the national movement. During the
colonial rule, he relentlessly fought for the abolition of the notorious Criminal Tribes Act. It is at his
instance, an All India Conference was called at Tripura, giving a national call to the colonial Government
to withdraw the Criminal Tribes Act by which Act the citizens of this country only because of their birth
were made as criminal tribes and subjected to inhumane treatment and humiliation. In that respect, All
India Conference held in 1934 is a mile stone and it is an historical event. The said Act came to be
abolished later due to powerful pressure. Thevar was a moving spirit behind the said agitation.
8. As the people were afraid to attend any meeting addressed by popular national leaders those days,
Thevar gave his support and solidarity despite the threat from the colonial Government. He presided over a
meeting addressed by Veer Sarvarkar at Madurai. In the election held in 1937, he was elected as a MLA
of Ramanathapuram District to the Legislative Assembly of the then Madras Presidency.
9. The people of Tamil Nadu will not forget all the leaders of national movement and who were also
involved in eradication of social evils such as untouchability. Mr. Vaithianatha Iyer, a leading advocate of
Madurai wanted to get entry into the famous Meenakshiamman Temple, Madurai along with dalits, whose
entry was prevented till then. It was the solid support rendered by Thevar. The said feet was accomplished
th
despite resistance by the then orthodoxy of Madurai. Since that day, i.e. 8 July, 1939, has become a
signal day in annals of the history of eradication of social evils. That event forced the Government to bring
a legislation providing for Temple entry to all sections of the Hindu population.
10. The election of Nethaji Subash Chandra Bose as the President of the Indian National Congress
became such a contentious issue in the Tripura conference. Due to the support of Thevar, among the
persons, Nethaji got elected as a President on 11.3.1937 of the Congress Party despite opposition and
counter campaigning by none other than Mahathma Gandhi. Thevar was imprisoned for 18 months in
Trichy jail, which increased his popularity and support base in the Southern parts of Tamilnadu. During
1938-39, his support to the Trade Union agitation in the city of Madurai, Textile Mills run by colonials
such as Harvey Mills (popularly known as Madura Coats) led to the establishment of free Trade Unions and
workers were freed from the clutches of captive unions.
11. Thevar had the unique distinction of getting elected in every election without even visiting the
constituencies in which he was contesting. He was elected during the general elections in the year 1937,
1946, 1952, 1957, 1962. He had distinction of getting twice elected both as MLA and MP. Even in the
Indian National Congress movement for Zamindari Abolition, Thevar has relentlessly campaigned
though he hailed from a family of landed gentry. In 1962 general election, he once again got elected as
Member of Parliament and there was a major political change.
12. Thereafter, he was taken ill and was under constant treatment. Despite medical attention, he
breathed his last on 29.10.1963 in the place known as Tirunagar Bungalow where he was staying. The
news of his death brought millions of people to the suburban of Madurai, which shows his continuous
popularity and respect that got through during his four decades of public service.
[For sources see: 1. Unions in Conflict by Eamon Murphy (1981), Australian National
University Publication. 2. Mudisuda Mannar Pasumpon Muthuramalinga Thevar by
A.R.Perumal (2006)[Kumaran Publication]
th
13. In this context, the counter affidavit filed by the 4 respondent (Revenue Divisional Officer,
Madurai) paragraph 14 is relevant, which is extracted below:
“14. ... Besides the averment of the petitioner School that setting up memorial for Pasumpon
Muthuramalinga Thevar is not public purpose on the very face of it is totally false and
devoid of truth. As the aura that surrounds the name Pasumpon Muthuramalinga Thevar
is clear evidence of the overwhelming popularity of this great personality and of the few
from these parts, who adorned the portals of fame by his unflinching drive, dint of
honesty, sincerity and hard work and his tireless strivings towards achievement of
independence from the foreign oppression immortalised him and gained him untold
glory, fame and his is the household name for several lakhs of people who not only adore
him but also he is held aloft on a high pedestal equating him with the innumerable deities
which adorn every street corner in this famous city of Pandiyas. His clarion call echoes
in the minds of more than 30 to 35 percent of people drawn from three different sects
predominantly having domicile over the Southern Tamilnadu. Hence, the decision
announced by the Hon’ble Chief Minister on the floor of the Assembly drew lot of cheers
from the public and constructing a memorial commemorating his achievements especially
in the house where he resided last, is a great mark of respect and tribute that can be
shown to a leader of his qualities.”
14. It is pity that the State has so far not come forward to think of paying tributes to the son of the
soil and it was only on the advent of the centenary of Thevar, they are thinking of putting up a memorial
and the first respondent has chosen the Tirunagar Bungalow to set up the Memorial where Thevar had
breathed his last.
15. When the State invokes the provisions of the Land Acquisition Act, publishes the notification
under Section 4(1) of the Central Act and declares the public purpose, unless the purpose is held to be not
public purpose, it is not open to the persons like the petitioner to oppose such a move and try to argue that
the memorial could be located else where. With this background, the other arguments addressed by the
learned senior counsel can be dealt with.
16. The learned senior counsel drew attention of this Court to the additional affidavit filed by
the petitioner as the first ground of submission, which is found in paragraph 6 of the additional affidavit
dated 21.6.2007, which is as follows:
“6. It is also further relevant to point out that in fact, the respondents is not vested with any
powers to invoke the provisions of the Land Acquisition Act, 1894 since for acquisition
of land for construction of Memorial, the Government ought to have invoked the
provision of the Tamilnadu Requisitioning and Acquisition of Immovable Act, 1956
which excludes the Schools from the acquisition proceedings. Since the above Act has
received the Presidential assent under Article 254(2) of the said Act overrides the Central
Act in this regard.”
17. However, the learned Additional Government Pleader opposed the petitioner raising any legal
issue in an additional affidavit without giving any opportunity to the State to meet that argument. Since the
issue involves a question of law, this Court feels the petitioner can raise that issue also. Pursuant to the
averments made, the learned senior counsel stated that in the light of the State enactment of 1956, the
Central Act stand excluded. When further questioned, the learned senior counsel submitted that he was not
making any general argument about the total eclipse but the present public purpose where a memorial is
sought to be set up in favour of one person for which there is no provision under the Central Act. If at all,
the State could only rely upon the State enactment. In this regard, the learned senior counsel submitted
that the definition of public purpose under Section 3(f) of the Central Act, does not specifically refers to
any memorial but the State enactment under Section 2(f), where the definition of premises is widely
defined. If the State undertakes the acquisition under 1956 Act, the petitioner has valuable defence in
terms of Section 3(2) wherein several exceptions are provided including running of a School. Therefore,
the petitioner’s valuable objection provided under statutory provisions cannot be taken away by the
Central Act. An enactment made by the Parliament in terms of the entries in the List III of Schedule
VII of the Constitution can be held to be repugnant to the State legislation made under an entry in List II
of Schedule VII so as to bring it within the scope of Article 254 (2), it must be established that both the
legislations are intended to operate in the same field.
18. The Court cannot presume unconstitutionality on the part of any Legislation and the attempt of
the Court must be to uphold both the Legislations unless such a construction does violate the
intention behind the legislation. In the present case, the attempt by the petitioner is to look at the two
legislations (both Central or State) from the point of view of the public purpose involved in the acquisition.
Section 3 (f) of the Central Act only gives inclusive definition of public purpose and does not exhaust all
categories of acquisition. Therefore, by any stretch of imagination, the Central legislation cannot be
compared with the State legislation and both can operate in their respective fields. The question of any
apparent repugnancy does not arise for this Court to hold that the Central legislation is excluded as the field
is occupied by the State Act.
19. In this context, it is relevant to refer to the judgment of the Hon’ble Supreme Court in
M.Karunanidhi v. Union of India, 1979 (3) SCC 431 in paragraph 8 of the said judgment, it has been
observed as follows:
“8. It would be seen that so far as Clause (1) of Article 254 is concerned it clearly lays
down that where there is a direct collision between a provision of a law made by the
State and that made by Parliament with respect to one of the matters enumerated in the
Concurrent List, then, subject to the provisions of Clause (2), the State law would be
void to the extent of the repugnancy. This naturally means that where both the State
and Parliament occupy the field contemplated by the Concurrent List then the Act passed
by Parliament being prior in point of time will prevail and consequently the State Act will
have to yield to the Central Act. In fact, the scheme of the Constitution is a scientific
and equitable distribution of legislative powers between Parliament and the State
Legislatures. First, regarding the matters contained in List I, i.e. the Union List to the
Seventh Schedule, Parliament alone is empowered to legislate and the State Legislatures
have no authority to make any law in respect of the Entries contained in List I, Secondly,
so far as the Concurrent List is concerted, both Parliament and the State Legislatures are
entitled to legislate in regard to any of the Entries appearing therein, but that is subject to
the condition laid down by Article 254(1) discussed above. Thirdly, so far as the
matters in List II, i.e. the State List are concerned, the State Legislatures alone are
competent to legislate on them and only under certain conditions Parliament can do so. It
is, therefore, obvious that in such matters repugnancy may result from the following
circumstances:
1. Where the provisions of a Central Act and a State Act in the concurrent List are fully
inconsistent and are absolutely irreconcilable, the Central Act will prevail and the
State Act will become void in view of the repugnancy.
2. Where however, a law passed by the State comes into collision with a law passed by
Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of
the repugnancy and the provisions of the Central Act would become void provided
the State Act has been passed in accordance with Clause (2) of Article 254.
3. Where a law passed by the State Legislature while being substantially within the scope
of the entries in the State List entrenches upon any of the Entries in the Central List the
 constitutionality of the law may be upheld by invoking the doctrine of pith and
substance if on an analysis of the provisions of the Act it appears that by and large the
law falls within the four corners of the State List and entrenchment, if any, is purely
incidental or inconsequential.
4. Where, however, a law made by the State Legislature on a subject covered by the
Concurrent List is inconsistent with and repugnant to a previous law made by Parliament,
then such a law can be protected by obtaining the assent of the President under Article
254(2) of the Constitution. The result of obtaining the assent of the President would be
that so far as the State Act is concerned, it will prevail in the State and overrule the
provisions of the Central Act in their applicability to the State only. Such a state of
affairs will exist only until Parliament may at any time make a law adding to, or
amending, varying or repealing the law made by the State Legislature under the
proviso to Article 254.
(emphasis added).”
20. If these principles are followed, the question of repugnancy between the two legislations does
not arise. The other contention of the learned senior counsel is that, in the present notification issued by the
State under Section 4 (as per the Amendment Act of Tamil Nadu Act 16 of 1997) makes it clear that the
notification ought to have published by the Commissioner of Land Administration and not by the
State Government. The amendment reads as follows:—
Section 4(1-A): The notification under sub-section (1) shall be published by—
(a) the Collector in respect of land not exceeding forty acres in extent the value of which
does not exceed rupees twenty-five lakhs;
(b) the Commissioner of Land Administration in respect of land not exceeding seventy-five
acres in extent the value of which exceeds rupees twenty-five lakhs, but does not
exceed rupees fifty lakhs; and
(c) the Government in other cases.”
21. Therefore, the learned senior counsel argued that since compensation in the present case has
been estimated to be Rs.26 lakhs (approx.), only the Commissioner for Land Administration should have
given a notification and not the Government as in the present case. This argument is fallacious because the
State Government has power to acquire land and also has issued a notification under Section 4(1). By
delegating the power of the State, it does not get denuded of its plenary powers. The State Government
might have given the notification as at the time of the notification, the precise figures regarding the
compensation may not be available. On this score, the petitioner cannot have any grievance. In the present
case, it was the State Government which gave notification and by that notification no prejudice has been
caused to the petitioner.
22. Thereafter, the learned senior counsel argued that there is a flaw in the notification. While in
the notification under Section 6 only Section 17(1) of the Central Act is referred to. Whereas it is Section
17(4), by which the land owners were required to be informed in terms of dispensing with compliance with
Section 5-A of the Act. G.O.Ms.No.229 Information and Tourism Department (Memorail) dated 1.12.2005
issued under Section 4(1) clearly expresses the intention of the Government to dispense with Section 5-A
proceeding which is found in the last paragraph of the said order. Mere non-quoting of the relevant
provisions or misquoting of the relevant section does not invalidate the Government Order. So long as
such power of the Government exists in terms of exercising power under Section 17(4) and the said power
is exercised in terms of the circumstances justifying the exercising of the power, the petitioner cannot find
any fault with the same. The Supreme Court vide its decision in Director General of Police A.P. v.
K.Ratnagiri reported in 1990 (3) SCC 60 while dealing with a wrong provision in a suspension order of a
Government servant took a similar view. The following passage in para 7 is relevant:
“A wrong wording in the order does not take away the power if it is otherwise available.”
23. Thereafter, the learned counsel argued that in the errata issued by the State by Letter dated
14.2.2006 wherein once again the mistake has been made. However, it is seen from the said notification
issued and published in the Government Gazette dated 22.2.2006, the said notification is in Tamil whereas
the original notification is in English. A perusal of the file shows that the said amendment was issued only
to the abstract found in the original G.O. In Para (1) the preamble to the exercise of power is mentioned
as Section 17(1) and this does not alter the legal situation for the very same reason mentioned above.
24. The last submission of the learned senior counsel is that the running of School is also a public
purpose and to defeat the said purpose, no other public purpose can be pressed into service by the State and
therefore, the acquisition proceedings are invalid.
25. In this respect, it is necessary to refer to certain decisions of the Supreme Court and of this
Court which have a bearing on the said contention. In the judgment of the Supreme Court in Abdul
Hussain Tayabali v. State of Gujarat, AIR 1968 SC 432, the contention that when a particular land is
already used for one public purpose, the Legislature could not have intended to empower the
Government to destroy that purpose and to substitute any other place in their public purpose was not
accepted. The following passage found in paragraph 15 is on this point:
“15. As regards proposition No.4, the only argument urged was that when a particular land is
being already used for one public purpose in this case the manufacture of “sagol”, a
building material made from lime, the Legislature could not have intended to
empower the Government to destroy that purpose. We need only say that a similar
argument was urged in Somavathi’s Case, (1963) 2 SCR 774: AIR 1963 SC 151 and
rejected by this Court.”
26. Almost an identical contention came to be rejected by a Division Bench of this Court vide its
decision in General Manager, Southern Railway, Madras v. Chintadripet Boys Higher Secondary School
and others, AIR 1998 Mad 180. In that case, a private school had a lease over the property of the
Government and was used as a play ground. When the said land was required for the construction of
railway line under Mass Rapid Transport System (MRTS) at Chennai, the School succeeded in its attempt
before the learned single Judge. On appeal by the railway, a Division Bench of this Court has held in
paragraph 9(f), which is as follows:
“9. (f) MRTS is a vital scheme aimed at removing traffic congestion in the Metropolitan city
of Madras. The said scheme is implemented in the city by the Metropolitan Transit
Project (Railways) after clearance by the Planning commission. As the land in question
was rightly resumed by the Corporation of Madras for a more important purpose in
accordance with condition Nos.3 and 4 of the lease deed the contention of Mr.
Kathirvelu, learned counsel for the school that it is not open to the Corporation to resume
possession unilaterally and hand over the same to the Railways, has no merit since the
impugned order cancelling the lease was passed strictly in terms of the conditions
stipulated therein. Therefore, it is futile on the part of the school to allege that the
Railways and the Corporation of Madras are estopped by the principles of promissory
estoppel and that they have no right in the plot of land used as a play ground, when in fact
there was no such promise as alleged by the School.” (Emphasis added)
27. Once again the Supreme Court vide its judgment relating to Dharam Pal Goel (D) by Lrs. v.
State of Haryana and others, (1997) 4 SCC 186, more so dealt with a similar situation under the Central
Act. The following passage found in paragraphs 2 and 3 are relevant wherein the contentions raised were
found:
“2. ... The appellant constructed a school building in October 1985 on the land. The
respondents had issued a notification on 30.1.1989 under Section 4(1) of the Land
Acquisition Act (for short “the Act”) for public purpose, namely, for development of the
sectors. Declaration under Section 6 of the Act was published on 25.1.1990.
Thereafter, the appellant filed a writ petition in the High Court contending that the
acquisition of the land for the public purpose was not correct since the appellant intended
to serve another public purpose, namely, establishing a school for the children of the
locality. The High Court dismissed the writ petition. Thus, this appeal by special
leave.
 3. When the matter had come up on 10.5.1996 for hearing, this Court directed that an officer
to be named by the respondents would make an inspection and submit a detailed report as
to the actual land needed for the school building and for playground and to ascertain to
what extent reasonable land is required to be released for the purpose of school and play
ground causing no disturbance to the scheme already evolved. In furtherance thereof, an
inspection was made and on the basis thereof a decision was taken by the Director of
Urban Estates, Haryana which has been communicated to the learned counsel for the
respondents.”
28. Repelling the contention, the Hon’ble Supreme Court in para 5 observed as follows:
“5. In the light of the extract of the report, the only question for consideration is whether the
land purchased by the appellant serves any public purpose and is, therefore, required to
be denotified from the acquisition? It is seen that the report indicates that the School
is situated in between the National Highway and adjacent to the proposed buffer road.
The object of locating a buffer road is to facilitate plantation of the trees to contain
pollution caused by the vehicular traffic. Though the alignment needs 165' of land in
view of the green belt or non-buildable area, 135' wide road has been set apart. The rest
of the land requires to be acquired and therefore, that part of the land cannot be released
from acquisition. In view of the fact that the officers of the respondents have inspected
the place and given a detailed report, we find that it may not be expedient to give any
direction to the respondents to delete a part of the land belonging to the appellant.”
29. Therefore, the said contention based on a public purpose being defeated by another public
purpose cannot be accepted. Lastly, the learned senior counsel submitted that the smooth functioning and
the future development of the School will be hit by the establishment of a memorial. This argument has no
legal basis. Besides that the respondents in their affidavits have stated that the existing space is enough to
run the Higher Secondary school.
30. With reference to the disturbance caused by establishment of a memorial, it is relevant to refer
to the letter of the petitioner School to the State Government dated 8.1.2007 wherein they themselves have
admitted that every year Thevar Jayanthi is celebrated by the School management and on that day, the
School declares holiday and public are allowed to come and pay respects to the portrait of Thevar kept in
the School. If any memorial is established it will add prestige to the School and it will have a new
identity in that locality.
31. Further, the impleaded respondents have established a Trust for the purpose of cherishing the
memorial Thevar. In their affidavit, they have stated that the place lies only in the North-Western corner of
the School and in no way it will cause disturbance to the School.
32. Under the circumstances, there is no substance in the arguments advanced on behalf of the
petitioner. The writ petition fails and the same will stand dismissed. No costs. Consequently, M.P.
(MD)Nos.1, 3 and 4 of 2007 are closed.
Petition dismissed.

[2008 (1) TNCJ 218 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI-BENCH)
BEFORE:
P.R. SHIVAKUMAR, J.
V.K. BHEEMARAJA ...Appellant
Versus
THE DEITY OF MAYURANATHASWAMY
DEVASTHANAM PREMISES, PETHAVANALLUR,
 RAJAPALAYAN THROUGH ITS EXECUTIVE OFFICER ...Respondent
[S.A. (M.D.) No. 235 of 1997, decided on 18 July, 2007]
th

Civil Procedure Code, 1908—Section 100—Second appeal—Against judgment and decree

reversing the judgment and decree passed in the original suit—Legality of—Dispute between lessor
and lessee—Properties belong to public religious and charitable endowments—Protection under the
City Tenants’ Protection Act, 1921 not available to lessee—Lease is governed by the terms of the
contract between lessor and lessee—Lease hold rights were granted by virtue of a sanction order
passed by the Deputy Commissioner under H.R. and C.E. Act, 1959—Specific condition incorporated
in the order granting sanction that no permanent superstructure should be erected in the leased land
— Lessee cannot be allowed to contend that such a condition can be ignored in the right of
protection available under Section 108 of the T.P. Act, 1882—Letter dated 28-1-1991 informing
lessor that all the temporary structures were removed and the suit property itself was levelled for
putting up temporary new constructions—Suit instituted on 26-3-1991—No question of limitation
intervened in the matter— Defendant started putting up permanent superstructure just before the
institution of the suit and completed the constructions during the pendency of the suit—Finding
based on the report and plan of the Advocate Commissioner submitted in the suit—Finding on the
question of fact—Neither perverse nor illegal—Lower appellate Court correctly dealt with the
matter—No interference is warranted, second appeal dismissed.
(Paras 8, 10 to 14)
Counsel.—Mr. Balasubramania Iyer, for the appellant; Mr. P.T.S. Narendravasan, for the
respondent.
JUDGMENT
P.R. SHIVAKUMAR, J.—The defendant in the original suit is the appellant in this second appeal.
2. The suit property is an extent of 16 cents of land comprised in Survey No.276 A/1 in
Rajapalayam Town, Virudhunagar District. The respondent Devasthanam is the owner of the said property.
After getting necessary permission from the Deputy Commissioner of Hindu Religious and Charitable
Endowments, Madurai in his proceedings Oo.Mu.20556/78 dated 17.10.1978, the said property was leased
out as a vacant site to the appellant herein/defendant for a period of one year starting from 01.07.1978 to
30.06.1979. The sanction order of the Deputy Commissioner of Hindu Religious and Charitable
Endowments, Madurai has been marked as Ex.A-1. The rent for the said period was fixed at Rs.720/-. In
the above said order according sanction for the lease to be granted in favour of the appellant
herein/defendant, three conditions were incorporated, out of which, the third condition is to the effect that
no superstructure of permanent in nature should be erected in the above said property by the lessee.
Pursuant to the above said order, lease deeds and renewal lease deeds happened to be executed from time to
time till the dispute arose in the month of January 1991. Two of such documents are Exs.A-2 and A-3.
Complaining that the appellant/defendant was making arrangements to put up permanent structures
violating the above said condition on which the lease was granted, the present suit was filed by the
respondent/plaintiff Devasthanam represented by its Executive Officer, for permanent injunction not to
put up any superstructure of permanent in nature and for a mandatory injunction for the removal of the
superstructures put up by the appellant/defendant.
3. The suit was resisted by the appellant/defendant by filing a written statement, denying the
allegations that there was an attempt made by him to put up any new superstructure and contending that all
the superstructures had been put up even ten years prior to the date of institution of the suit and that no new
superstructure was sought to be put up. The further contention raised on behalf of the defendant was that
since the lease was in respect of a vacant site, the appellant/defendant was entitled to the benefit of the
provisions of City Tenants’ Protection Act, 1921; that the nature of the building put up by the
appellant/defendant was irrelevant, in view of the condition found in Section 108 of the Transfer of
Property Act, 1882 and that in the event of termination of lease, the lessee shall have a right to remove the
structures put up by him or the superstructures also will vest with the landlord in case the lessee chooses to
surrender possession along with the superstructure without removing the same.
4. The trial Court framed as many as four issues and conducted trial in which P.W.1 was examined
as the sole witness on the side of the plaintiff and Exs.A-1 to A-3 were marked. Likewise, D.W.1 was
examined as the sole witness and Exs.B-1 to B-6 were marked on the side of the defendants. The report
filed by the Advocate Commissioner and the rough sketch prepared by him were marked as Exs.C-1 and C-
2. At the conclusion of trial, on an appreciation of evidence, the trial Court came to the conclusion that the
respondent/plaintiff was not entitled to the reliefs of permanent injunction and mandatory injunction
as prayed for in the plaint, non-suited the respondent/plaintiff and dismissed the suit with cost by its
judgment and decree dated 25.10.1993.
5. As against the said judgment and decree of the trial Court, the respondent herein/plaintiff in
the suit preferred an appeal in A.S.No.107 of 1994 on the file of the learned Principal District Judge,
Kamarajar District, as it was then called (presently Virudhunagar District) at Srivilliputhur. The appellate
Court, relying on the amendment made to the City Tenants’ Protection Act, 1921, by which the properties
belonging to public religious institution were exempted from the purview of the said Act held that the
appellant/defendant was not entitled to the benefit of the said Act. Regarding the other issues, the learned
appellate Judge found that the lessee, according to the terms of contract, was not entitled to put up any
permanent structure without the consent of the landlord and that the lessee, namely the appellant herein/
defendant was making arrangements to put up permanent structures in the suit property at the time of filing
of the suit and completed the construction after institution of the suit. Based on such finding of fact, the
learned appellate Judge held the respondent herein/plaintiff in the suit entitled to the reliefs of
permanent injunction and mandatory injunction as prayed for in the plaint and thus, reversed the judgments
of the trial Court and decreed the suit as prayed for.
6. Aggrieved by and challenging the judgment of the learned Principal District Judge, Srivilliputhur,
the appellant herein/defendant in the suit has brought forth this second appeal before this Court.
7. This Court heard the arguments advanced by Mr.Balasubramania Iyer, learned counsel appearing
for the appellant and also by Mr.P.T.S.Narendravasan, learned counsel appearing on behalf of the
respondent. This Court also perused the materials available on record, including the judgments of the lower
Courts and paid its anxious consideration to the same.
8. Admittedly, the appellant/defendant is a lessee under the respondent/plaintiff in respect of 16
cents of vacant site. Since the property belongs to the plaintiff Devasthanam, as per the provisions of the
Hindu Religious and Charitable Endowments Act, 1959, sanction was accorded by the Deputy
Commissioner of Hindu Religious and Charitable Endowments, Madurai in his proceedings
Oo.Mu.20556/78 dated 17.10.1978 for granting a lease of the said property in favour of the
appellant/defendant for a period of one year from 01.07.1978 to 30.06.1979 and the annual rent fixed was
Rs.720/-. Sanction order passed by the Deputy Commissioner, Hindu Religious and Charitable
Endowments is Ex.A-1. Pursuant to the sanction order, lease deeds and renewal lease deeds happened to be
executed. Two of such deeds are produced and marked on the side of the plaintiffs as Exs.A-2 and A-3.
Subsequently, rent was increased from Rs.720/- to Rs.900/- per annum. Admittedly, present annual rent is
Rs.900/-. We are not concerned with the validity of the lease deeds, as the same is not the subject-matter of
dispute in the case on hand. It is an admitted case of both parties that the respondent is the landlord and the
appellant is the lessee in respect of the vacant site. The dispute in this case between the parties to the
litigation is with reference to the applicability of the provisions of City Tenants’ Protection Act, 1921 and
the right of the lessee to put up superstructures of permanent nature in the lease hold land. Though the suit
was defended by the appellant/defendant mainly on the ground that the appellant/defendant, being the
lessee of vacant site, was entitled to the protection of the provisions of City Tenants’ Protection Act, in
view of an amendment brought to the said Act by the Legislature, of course subsequent to the filing of the
suit, the said defence is no longer available to the appellant/defendant. Mr.Balasubramania Iyer, learned
counsel for the appellant also fairly conceded that the appellant/defendant shall not be entitled to the
protection under the City Tenants’ Protection Act, 1921, as the properties belonging to public religious and
charitable endowments have been taken away from the purview of the Act by the above said amendment.
9. So far as the next contention is concerned, the defence taken by the appellant/defendant seems to
be two folded. They are:
(i) No new construction was sought to be put up as pleaded by the plaintiff in the plaint and the
superstructures found in the suit property were in existence for more than 10 years prior to
the date of filing of the suit; and
 (ii) The said superstructures either permanent or temporary could be removed by the lessee at the
time of termination of the lease and even in case the lessee chooses to surrender possession of
the property to the landlord without removing the superstructures, the superstructure will
become vested with the landlord and hence the prayer for injunction or mandatory injunction
should be rejected as misconceived.
10. The appellant/defendant got the lease hold right, by virtue of a sanction order passed by the
Deputy Commissioner of Hindu Religious and Charitable Endowments, the competent authority to grant
sanction of leases in respect of immovable properties belonging to the public religious institutions coming
within the purview of the Hindu Religious and Charitable Endowments Act, 1959. A specific condition was
incorporated in the order granting sanction that no permanent superstructure should be erected in the land
leased out. That being so, the appellant/defendant cannot say that the nature of superstructure either put up
already or to be put up by the lessee is quite irrelevant. In support of the said contention of the
appellant/defendant, the reference made to Section 108 of the Transfer of Property Act, 1882 is also
inappropriate. The lease is governed by the terms of the contract between the lessor and lessee. A lessee
cannot be allowed to contend that since there is some protective clause under Section 108 of the Transfer of
Property Act, 1882 and no harm will be caused to the lessor, the condition mutually agreed upon need not
be respected or need not be given effect to. Having accepted a condition that no superstructure of
permanent nature will be put up in the suit property, the lessee cannot be allowed to contend that such a
condition can be ignored in the right of the protection available under the above said Section 108 of the
Transfer of Property Act, 1882.
11. It is the further contention of the appellant that the learned appellate Judge failed to record a
finding as to the nature of constructions put up by the appellant/defendant and hence the judgment of the
appellate Court has to be interfered with. A faint attempt was also made on behalf of the appellant to show
that in the absence of any finding regarding the age of the building, the question of limitation for the grant
of mandatory injunction for the removal of the superstructures could not be conveniently answered and that
in view of the specific contention raised by the appellant/defendant that the buildings were in existence for
more than ten years, the respondent/plaintiff should have been non-suited on the question of limitation also.
Though the defendant had taken a stand in the written statement that the buildings in existence at present
were constructed even ten years before the date of institution of the suit, there are materials to show that all
the buildings that were in existence prior to the date of suit were demolished and removed and new
structures were sought to be put up which, according to the appellant/defendant, are only temporary in
nature. This submission was made on behalf of the appellant after the learned counsel for the respondent
drew the attention of the Court to Ex.B-6 – letter written by the appellant/defendant dated 28.01.1991
informing the respondent/plaintiff that all the temporary structures were removed and the suit property
itself was levelled for putting up temporary new constructions and contended that the said letter would
amply prove that the superstructures now available in the suit property are of new origin.
12. In view of the admission found in Ex.B-6, the above said question of limitation does not arise in
the instant case. Admittedly, the property was made a vacant site as on the date of Ex.B-6 namely
28.01.1991. Therefore, any superstructure found in the suit property as on today should have been
erected only subsequent to the above said date. The suit has been instituted on 26.03.1991, i.e. within two
months from the date of Ex.B-6. Therefore, the above said contention of the learned counsel for the
appellant that the respondent/plaintiff should be non-suited for the relief of mandatory injunction on the
ground of limitation has got to be discountenanced.
13. The next contention raised by the learned counsel for the appellant is that without giving a
definite finding as to the nature of the building erected by the appellant/defendant, the learned appellate
Judge has chosen to grant the relief of permanent injunction as well as mandatory injunction. It is true that
the respondent/plaintiff cannot succeed in the suit, if the plaintiff is not able to prove that the superstructure
put up by the appellant/defendant is permanent in nature. But the above said contention of the learned
counsel for the appellant has got to be discountenanced for the simple reason that there is deemed
admission on the part of the appellant/defendant that the superstructure put up by him is permanent in
nature. Specific averment has been made in the plaint that the defendant was making attempts and in fact
proceeding with the construction of a building of permanent nature violating the condition on which the
lease was granted in favour of the defendant. This aspect was not disputed in unambiguous terms by the
defendant in his written statement. The entire allegation in the written statement proceeds on the
assumption that the superstructure was permanent in nature aged more than ten years and no new
superstructure was sought to be put up. Therefore, the argument advanced by the learned counsel for the
appellant/defendant can be discountenanced on that score alone. In addition to that, there are ample
evidence in the form of evidence of P.W.1 and the report and plan submitted by the Advocate
Commissioner appointed by the trial Court and marked as Exs.C-1 and C-2. Upon a proper appreciation of
the above said evidence alone, the learned appellate Judge has come to the conclusion that the
defendant started putting up permanent superstructures just before the institution of the suit and
completed the constructions during the pendency of the suit. The well considered finding of the
learned appellate Judge on a question of fact cannot be interfered with in this second appeal. The said
finding of the appellate Judge cannot even be stated to be perverse to elevate such a question of fact to the
level of a substantial question of law.
14. Under the above said facts and circumstances of the case, this Court is of the considered view
that no substantial question of law has arisen in this second appeal and that the questions of law
propounded on behalf of the appellant/defendant have been correctly decided by the lower appellate
Court warranting no interference of this Court in the second appeal. There is no scope, whatsoever, for
interference with the judgment of the learned appellate Judge. There is no merit in the second appeal and
the same deserves to be dismissed.
15. In the result, this second appeal is dismissed with costs.
Second appeal dismissed.

[2008 (1) TNCJ 223 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI-BENCH)
BEFORE:
P.D. DINAKARAN, J.
K. RATHINAM ETC. ...Petitioners
Versus
THE COMMISSIONER OF POLICE, MADURAI
CITY POLICE AND OTHERS ...Respondents
[W.P. Nos. 2247, 2595 to 2597 of 2004, decided on 23rd July, 2007]
Constitution of India, 1950—Article 226—Tamil Nadu Police Standing Orders—Order 749
(2)—Station Check Register of K.D.’s and Rowdies—Including the names in—Justification for—
Without going into the merits of the case not proper for the writ Court to consider the validity of
including the name in the Station Check Register—Proper to direct to decide the pending
representation—Direction issued accordingly.
(Paras 4 to 6)
Case law.—1992 Supp. (2) SCC 84.
Counsel.—Mr. K. Murugesan, for the petitioner; Mr. R. Janakiramulu Special Government
Pleader, for the respondents.
JUDGMENT
P.D. DINAKARAN, J.—The petitioners seek a writ of declaration, declaring that the insertion of the
names of the petitioners in the “Station Check Register of K.D.’s and Rowdies” of the third respondent is
illegal, unjust and against natural justice and to consequently direct the respondents to remove the name of
the petitioners from the “Station Check Register of K.D.’s and Rowdies” of the third respondent.
2. According to the petitioners, the respondents are not justified in including the names of the
petitioners in the “Station Check Register of K.D.’s and Rowdies” as the Police Standing Order No.749(2)
of the Tamil Nadu Police Standing Orders is not, in any way, attracted to the case of the petitioners.
3. Police Standing Order No.749(2) of the Tamil Nadu Police Standing Orders reads as under:
“PSO.740. Suspects.
(1) ****
 (2) The following persons may be classified as rowdies and Rowdy Sheets (Form No.112)
may be opened for them under the orders of the Superintendent or Sub-Divisional
Officer.
(a) Persons who habitually commit, attempt to commit or abet the commission of offences
involving a breach of peace.
(b) Persons bound over under Sections 106 and 107, Criminal Procedure Code.
(c) Persons who have been convicted under Section 75 of the Madras City Policy Act or
twice in two consecutive years under Section 3 Clause 12 of the Town Nuisance Act.
(d) Persons who are illicit distillers and known purveyors of liquor.
Persons either convicted under Section 49-A of the Madras City Police Act, 1888 (Madras Act III
of 1888) or under Section (4) of the Madras Gaming Act, 1930, (Madras Act III of 1930) or
reasonably suspected to be habitually committing or abetting the commission of.”
4. The main grievance of the petitioners, as put forth by the learned counsel for the petitioners is
that in spite of the representations sent by the petitioners to the first and second respondents to remove their
names from the “Station Check Register of K.D.’s and Rowdies”, the respondents have not considered
the same till date and the human dignity and personal liberty granted under Articles 14 and 21 of the
Constitution of India are infringed.
5. In my considered opinion, without going into the merits of the case, it may not be proper for this
Court to decide whether the names of the petitioners could be included in “Station Check Register of
K.D.’s and Rowdies” or not and whether the Police Standing Order No.749(2) of the Tamil Nadu Police
Standing Orders is attracted or not. The above view is also supported with a decision of the Apex Court in
Chaman Lal v. State of U.P. and others reported in 1992 Supp. (2) SCC 84, wherein the Apex Court
confirming the orders of the High Court refusing to quash the History sheet observed that the aggrieved
party may approach the superior authority seeking their intervention in such matters, who may consider
such representation according to law and pass appropriate orders.
6. Under such circumstances, except to direct the respondents to consider of the representations
of the petitioners and pass appropriate orders on merits within four weeks from the date of receipt of copy
of this order, no further orders are required in these writ petitions. These writ petitions are disposed off
accordingly. No costs. Consequently, W.P.M.P.No.2301 of 2004 is closed.
Petitions disposed off.

[2008 (1) TNCJ 225 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI-BENCH)
BEFORE:
P.D. DINAKARAN AND P.R. SHIVAKUMAR, JJ.
K. CHIDAMBARA MANICKAM ...Appellant
Versus
SHAKEENA ETC. ...Respondents
[W.A. (M.D.) Nos. 145 and 146 of 2007 and M.P. (M.D.) Nos. 1 + 1 and 2 + 2 of 2007, decided on 10th
August, 2007]
(A) Securitisation and Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002—Purpose and scope of.
(Paras 9.2 and 9.3)
(B) Practice and procedure—Liquidity of finances and flow of money is essential for any
healthy and growth-oriented economy—Law should not be in derogation of the rights which are
guaranteed to the people under the Constitution—Procedure should be fair, reasonable and valid.
(Para 9.5)
(C) Constitution of India, 1950—Article 226—Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002—Sections 13 (4), 13 (8) and 17—Security
Interest (Enforcement) Rules, 2002, Rule 9(7)—Writ petitions—Invoking jurisdiction—
When entire proceedings under Section 13 (4) of the Act have come to an end and become final by
issuance of sale certificate under sub-rule (7) of Rule 9 of the Rules—Proper course for the
borrowers would be to prefer an appeal before the Appellate Tribunal under the Act.
(Para 10.7)
(D) Registration Act, 1908—Sections 17 (1) and 17 (2), (xii)—Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002—Section 13 (4)—
Security Interest (Enforcement) Rules, 2002, Rule 9 (7)—Registration of—Sale certificate issued
under Rule 9 (7)—Need not be registered under the provisions of the Registration Act.
(Para 10.20)
(E) Securitisation and Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002—Sections 35 and 37— Comparative study of—Sale already effected satisfying
the conditions contemplated under Section 13 (8) of the Act, shall, by virtue of Section 35, prevail
over such other rights, much less the right of redemption conferred under Transfer of Property Act,
1882, which is protected under Section 37 of the Act—Sections 35 and 37 of the Act have to be read
conjointly to achieve the object of the Act—But not to defeat the same—No conflict between them.
(Paras 12.4 and 12.5)
Case law.—2004 (4) SCC 311; 1977 (3) SCC 247; 2006 (5) CTC 753; 1994 (1) LW 491;
MANU/SC 2834/2007; AIR 1989 Ker 79; 1984 Supp. SCC 196.
Counsel.—Mr. AR. L. Sundaresan Senior Counsel for Mrs. AL. Ganthimathi, for the appellant; Mr.
R.S. Ramanathan for respondent 1; Mr. F.B. Benjamin George for respondents 2 and 3.
Important Point
Sale of the secured asset in public auction as per Section 13 (4) of SARFAESI Act which ended in
issuance of a sale certificate as per Rule 9 (7) of the Rules is a complete and absolute sale for the purpose
of SARFAESI Act and same need not be registered under the provisions of the Registration Act.
JUDGMENT
P.D. DINAKARAN, J.—These writ appeals have been preferred by the appellant against the
common order dated 09.03.2007 of the learned Single Judge made in W.P.(MD)Nos.634 and 635 of 2006.
2. Brief facts, sans unnecessary details, leading to the filing of these writ appeals are stated herein
under:-
2.1. The first respondent in both the writ appeals, who have obtained a loan of Rs.10,00,000/- each
from the second respondent/bank, are hereinafter referred to as “borrowers”. As they defaulted in
repayment, the second respondent/bank issued notices dated 19.10.2004 and 01.12.2004 under
Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (for brevity, “SARFAESI Act”) to the borrowers, calling upon them to
discharge the loan within sixty days.
2.2. As the borrowers have not complied with the said demand, the second respondent/Bank,
alleging that as on 31.10.2004, a sum of Rs.10,72,483/- was due from each of them, directed the borrowers
to discharge the loan amounts with interest at the rate of 11.75% per annum within a period of sixty days.
In replication, the borrowers by representations dated 10.12.2004 and 30.12.2004 requested the second
respondent/bank to consider their case for one time settlement. The borrowers invoking Section 17 of the
SARFAESI Act filed S.A.Nos.21 and 22 of 2005 before the Debts Recovery Tribunal II, Chennai,
challenging the said notices issued by the second respondent/Bank, but the same were dismissed on
28.09.2005.
2.3. In view of the default in discharging the loans by the borrowers, the second respondent/bank,
exercising its powers under Section 13(4) of the SARFAESI Act issued the impugned notice dated
14.11.2005 informing the borrowers that constructive possession of the secured assets were taken over by
them on 09.02.2005 and the same would be brought for sale after the expiry of 30 days from that date, by
way of public auction.
2.4. In the absence of any headway by the borrowers in repayment, the third respondent, who is
the authorised officer of the second respondent bank, brought the property for public auction on
19.12.2005.
2.5. On 02.01.2006, the borrowers, however, approached the second respondent/bank and
deposited three cheques for a total sum of Rs.25,21,445/- to discharge the amount due and payable in
respect of the notices issued to them. The second respondent/Bank, by informing the borrowers that the
secured assets have already been sold and the sale was to be confirmed on or before 17.01.2006, returned
the cheques on 04.02.2006.
2.6. The borrowers filed I.A.Nos.13 and 14 of 2006 for condoning the delay in filing petitions to
restore S.A.Nos. 21 and 22 of 2005 and also filed petitions to restore S.A.Nos. 21 and 22 of 2005 and for
stay of the confirmation of the auction sale. The Debts Recovery Tribunal II, Chennai, by an order dated
10.01.2006, recording the submission of the second respondent/bank that the auction purchaser had paid the
entire sale consideration and sale certificate was issued to him on 06.01.2006, dismissed the applications of
the borrowers with liberty to pursue their remedies.
2.7. The borrowers, thereafter, sent a lawyer’s notice dated 13.01.2006 by enclosing a Demand
Draft for a sum of Rs.25,00,000/- drawn in favour of the second respondent/bank. The second
respondent/bank, after receiving the demand draft, without setting aside the sale, sent another notice dated
18.01.2006 to the borrowers, directing them to remove the articles found in the secured assets within three
days.
2.8. Contending that when the borrowers had paid the entire loan amount, the second
respondent/bank cannot proceed with taking of possession of the secured assets, the borrowers filed
W.P(MD)Nos.634 and 635 of 2006 for issue of Writ of Certiorarified Mandamus to call for the records of
the respondent in respect of the auction of their properties held in pursuance to the auction notice dated
14.11.2005, to quash the same and to direct the second and third respondents to receive the amount
paid by them.
2.9. The second and third respondents filed a detailed common counter denying the case of the
borrowers.
2.10. The appellant herein, who is the auction purchaser, got himself impleaded as 3 rd respondent in
both the writ petitions and contested the case pleading his right over the properties purchased in the public
auction.
2.11. Learned Single Judge, after hearing the counsel on either side, accepting the argument of the
learned counsel for the borrowers that, the borrowers, by exercising their right of redemption under
Section 60 of the Transfer of Property Act, have approached the second respondent for
repayment of entire loan dues before the completion of the sale by registration of sale documents, allowed
the writ petitions, as prayed for. Hence, these writ appeals.
3. We have heard Mr.AR.L.Sundaresan, learned senior counsel appearing for the
appellant/auction purchaser, Mr.R.S.Ramanathan, learned counsel appearing for the first
respondents/borrowers and Mr. F.B.Benjamin George, learned counsel appearing for respondents 2 and
3/the secured creditor.
4.1. Mr.AR.L.Sundaresan, learned senior counsel appearing for the appellant submits that the
borrowers, having invited a conditional order from Debts Recovery Tribunal II, Chennai directing them to
pay a sum of Rs.1,50,000/- for staying all further proceedings pursuant to notice under Section 13(2) of the
SARFAESI Act, have not complied with the order and allowed the applications to be dismissed on
28.09.2005 for non-prosecution, are not liable to maintain the writ petitions.
4.2. The learned senior counsel for the auction purchaser/appellant, contends that when there is
no provision under the SARFAESI Act empowering the secured creditor, either to cancel or set aside the
sale certificate already issued to the auction purchaser, the further course open to the borrowers is to file an
appeal before the Tribunal as provided under SARFAESI Act and therefore, when there is an effective
alternative remedy available under SARFAESI Act, the writ petitions themselves are not maintainable.
 4.3. The next submission of the learned senior counsel for the appellant is that once the borrowers
failed to pay or tender the entire dues to the second respondent/bank before the date fixed for sale, viz.,
19.12.2005, and allowed the second respondent to proceed with the sale as per the provisions contained in
sub-section (8) of Section 13 of the SARFAESI Act, it is not open to them to seek for cancellation or
setting aside of the sale certificates issued to the appellant/auction purchaser on 06.01.2006 by approaching
the secured creditor, who has no power under the Act to cancel such sale certificate already issued, at a
belated stage and therefore, the prayer of the borrowers is liable to be rejected.
4.4. It is the further contention of the learned senior counsel that the provision contained in Section
13(8) of the SARFAESI Act is not in derogation of Section 60 of the Transfer of Property Act as the
validity of the said provision of SARFAESI Act has been upheld by the Supreme Court in the decision in
Mardia Chemicals Limited v. Union of India, 2004 (4) SCC 311 and therefore, if the contention of the
borrowers is accepted, it would defeat the entire object for which SARFAESI Act was enacted by the
Parliament. Argued that if the sale certificates issued to the bona fide purchasers in the public auction as per
the provisions of the law are sought to be cancelled at a belated stage, it would cause great prejudice to
those who have invested huge sums for purchasing the properties in public auction and the very
purpose of auctioning would become redundant.
4.5. The learned senior counsel for the appellant has submitted that if the dues of the secured
creditor together with all costs, charges and expenses incurred are tendered to the secured creditor before
the date fixed for sale or transfer, under Section 13(8) of the SARFAESI Act, the secured asset shall not be
sold or transferred by the bank or financial institutions and no further steps shall be taken in that regard. In
this case, the borrowers have failed to discharge their liability in full before the date fixed for sale,
and therefore, the second respondent/bank brought the property for public auction on 19.12.2005, the sale
was confirmed in favour of the highest bidder, sale certificate was issued on 06.01.2006 and thus, the
sale has become absolute and complete.
4.6. The learned senior counsel further submitted that the appellant was the highest bidder in the
public auction, whose bid was accepted and he has also paid the entire sale consideration within the time
stipulated and the sale certificate was also issued to him. Once the sale certificate was issued, the
registration of sale is only a formality and it cannot be contended that the sale or transfer has not been
effected and once the sale certificate is issued, there is no provision under the SARFAESI Act to set aside
the sale and the sale would become final and is binding on the parties.
5.1. The learned counsel for the borrowers has submitted that even prior to the issuance of the sale
certificate to the appellant herein on 06.01.2006, the borrowers have sent three cheques for Rs.25,21,246/-
on 02.01.2006 to the second respondent bank, but by letter dated 02.01.2006, the second respondent bank
stating that the mortgaged property was sold in the auction and the highest bidder has paid 25% of the
amount and the mortgaged property will be transferred to the successful bidder immediately after the
payment of the remaining amount, returned the cheques on 04.01.2006, and the same is in contravention
to the provisions of Section 13(8) of the SARFAESI Act.
5.2. The further contention of the learned counsel for the borrowers is that under Section 13(8) of
the SARFAESI Act, if the dues of the second respondent together with all costs, charges and expenses
incurred are tendered to them before the date fixed for sale or transfer, the secured asset shall not be sold
or transferred by the bank or financial institutions to the asset reconstruction company and no further steps
shall be taken in that regard. Learned counsel for the first respondent took a firm stand that the words
employed in Section 13(8) of the SARFAESI Act that “.....for sale or transfer....” and “.....Sold or
transfer...” indicate that even though auction was over and sale certificate was issued, till the transfer of
possession is effected by registration, the dues of the secured creditor together with all costs, charges and
expenses incurred by him are tendered has to be accepted by the second respondent/bank. But, even though
the first respondent tendered three cheques for a sum of Rs.25,21,246/- on 02.01.2006, the second
respondent/bank returned the cheques and therefore, the sale in favour of the appellant herein cannot be
contended as valid.
5.3. The learned counsel for the borrowers further argued that the right of redemption which is
embodied in Section 60 of the Transfer of Property Act is available to the mortgagor unless it has been
extinguished by the act of the parties. It cannot be held that the mortgagor lost the right of redemption just
because the property was put to auction. The mortgagor has a right to redeem unless the sale of the property
was complete by registration in accordance with the provisions of the Registration Act. He added that even
if there is some difference regarding amount, it cannot be said that right of redemption of property is
completely lost. He has also placed reliance upon the decision reported in Mardia Chemicals Limited v.
Union of India, 2004 (4) SCC 311 and Narandas Karsondas v. S.A.Kamtam and another, 1977 (3) SCC
247.
5.4. The learned counsel for the borrowers further contends that when they approached the second
respondent/bank and deposited three cheques for a total sum of Rs.25,21,445/- to discharge the amount due
and payable, the second respondent/ bank informed the borrowers that the mortgaged property has already
been sold and the sale was to be confirmed and returned the cheques on 04.02.2006, and this act of the
second respondent/bank is arbitrary, unreasonable, amounts to unjustified enrichment and is opposed to
equity, justice and good conscience.
6.1. Learned counsel appearing for respondents 2 and 3 has submitted that the borrowers have
obtained various loans from the second respondent/bank, but they have defaulted in repayment. Hence, the
second respondent/bank issued notice dated 19.10.2004 under Section 13(2) of the SARFAESI Act, calling
upon the borrowers to discharge the loan amount within a period of sixty days. Since the borrowers have
not complied with the said notice, the second respondent/bank exercising its powers under Section 13(4) of
the SARFAESI Act took possession of the property on 09.02.2005 and issued another notice dated
14.11.2005, calling upon the borrowers to pay the arrears within 30 days, failing which the property would
be brought for auction. On 14.11.2005, the second respondent/bank issued necessary advertisement in
newspapers fixing the auction date as 19.12.2005 in terms of Rule 9 of the Security Interest
(Enforcement) Rules, 2002 (hereinafter referred to as “the Rules”). The respondents 2 and 3,
therefore, followed the procedure contemplated under law.
6.2. The learned counsel for respondents 2 and 3 has submitted that the provisions of SARFAESI
Act, as per Section 35, shall have effect notwithstanding anything inconsistent therewith contained in any
other law for the time being in force and by virtue of Section 13(4) read with Section 13(6), the
mortgaged assets shall vest with the bank free from all encumbrances. He has also placed reliance upon the
decision reported in Transcore v. Union of India, 2006 (5) CTC 753.
6.3. The learned counsel for respondents 2 and 3 has submitted that the borrowers, challenging the
possession notice dated 09.02.2005, by invoking Section 17 of the SARFAESI Act filed S.A.Nos.21 and
22 of 2005 before the Debts Recovery Tribunal II, Chennai which were subsequently dismissed on
28.09.2005. The auction was held on 19.12.2005, in which the appellant has offered highest amount of
Rs.42,51,000/-, which was accepted and he paid 25% and on 04.01.2006, he paid the entire balance amount
and on 06.01.2006, sale certificate was issued to him. He added that the borrowers sent three cheques for a
sum of Rs.25,27,446/- on 02.01.2006. As the mortgaged property was sold in the auction and the highest
bidder paid 25% of the amount, the second respondent/bank returned the cheques to the borrowers. With
regard to the Demand Draft for a sum of Rs.25 lakhs sent by the borrowers along with a lawyer’s notice
dated 13.01.2006, learned counsel for respondents 2 and 3 has submitted that the same was received by
them only on 17.01.2006 i.e., after the confirmation of sale made on 06.01.2006, however the same was not
encashed.
7. We have carefully considered the rival submissions of the learned counsel for the appellant and
the respondents.
8. The core and primal points that arise and require to be answered in these appeals are that:
(i) Whether the sale of the secured asset in public auction as per Section 13(4) of SARFAESI
Act, which ended in issuance of a sale certificate as per Rule 9(7) of the Security Interest
(Enforcement) Rules, 2002 (in short “the Rules”) is a complete and absolute sale for the
purpose of SARFAESI Act or whether the sale would become final only on the registration of
the sale certificate?
(ii) Whether the action of the second respondent in not accepting the amounts paid by the
borrowers and not cancelling the sale certificate before the registration of the sale is in
derogation of Section 60 of the Transfer of Property Act, in view of the Section 37 of
SARFAESI Act? and
(iii) Whether Section 35 of the SARFAESI Act has the effect of overriding Section 37 of the
SARFAESI Act?
 9.1. Before delving deep into the issues to be decided, it would be relevant to say about the object
and purpose for which SARFAESI Act was enacted by the Parliament.
9.2. The prime propellant for the promulgation has been, of course, the worrisome state of the
financial sector, where the snag of bad debt has almost snowballed into a crisis. The SARFAESI Act,
however, also aims to smoothen the debts recovery process by enabling secured creditors to resort to self-
help in certain specified circumstances. The SARFAESI Act is arguably the last in the set of measures that
the Government has initiated over the past few years for curbing the evil of non-performing assets (NPAs),
as the amnesty scheme announced for settlement, the setting up of Debts Recovery Tribunals, etc. failed
to provide any comprehensive solution.
9.3. SARFAESI Act is enacted to regulate securities and reconstruction of financial assets and
enforcement of security interest and for matters connected therewith. The Act enables the Banks and
Financial Institutions to realise long term assets, manage problems of liquidity, asset liability mismatch and
to improve recovery of debts by exercising powers to take possession of securities, sell them and thereby
reduce non-performing assets by adopting measures for recovery and reconstruction. The Act further
provides for setting up of asset reconstruction companies which are empowered to take possession of
secured assets of the borrower including the right to transfer by way of lease, assignment or sale.
The said Act also empowers the said asset reconstruction companies to take over the management of the
business of the borrower.
9.4. The Constitutional validity of SARFAESI Act has been upheld in the case of Mardia
Chemicals Limited v. Union of India, 2004 (4) SCC 311. In the said judgment, the Supreme Court has held
that in cases where the secured creditor has taken action under Section 13(4), it would be open to any
person, including the borrower to file an appeal under Section 17 of the Act.
9.5. Taking note of the fact that liquidity of finances and flow of money is essential for any healthy
and growth oriented economy, that law should not be in derogation of the rights which are guaranteed to
the people under the Constitution, that the procedure should be fair, reasonable and valid, and keeping
in mind the above avowed object of the SARFAESI Act, we proceed to deal with the points raised for
consideration.
10.1. Point (i): Whether the sale of the secured asset in public auction as per Section 13(4) of
SARFAESI Act, which ended in issuance of a sale certificate as per Rule 9(7) of the Rules is a complete
and absolute sale for the purpose of SARFAESI Act or whether the sale would become final only on the
registration of the sale certificate.
10.2. In this case, admittedly, the notices under Section 13(2) of the Act were issued to the
borrowers on 19.10.2004 and on 01.12.2004 requiring them to pay the outstanding dues within 60 days.
As the borrowers did not settle the dues, sale notices, as provided under Section 13(4) of the Act, were
issued on 14.11.2005 stating that constructive possession of the secured assets was taken over by the
second respondent/secured creditor on 09.02.2005 and also informing that to realise the dues the
secured assets would be brought for sale after expiry of 30 days from the date thereof. It is not disputed
that the said notices were received by the borrowers and the sale was held on 19.12.2005.
10.3. It is the case of the borrowers that even prior to the issuance of the sale certificate to the
appellant herein on 06.01.2006, they have sent three cheques for Rs.25,21,246/- on 02.01.2006 to the
second respondent/bank, which were returned on 04.01.2006, which is in contravention to the provisions
of Section 13(8) of the SARFAESI Act. For better appreciation of the said contention, Section 13(8) of
SARFAESI Act needs extraction and it reads as under.—
“Section: 13(8): If the dues of the secured creditor together with all costs, charges and expenses
incurred by him are tendered to the secured creditor at any time before the date fixed for sale
or transfer, the secured asset shall not be sold or transferred by the secured creditor, and no
further step shall be taken by him for transfer or sale of that secured asset.”
(emphasis supplied)
10.4. Sub-section (8) of Section 13 of the Act gives an opportunity to the borrowers to redeem the
property given in security to the secured creditor by paying the dues on or before the date fixed for sale, in
the instant case, on or before 19.12.2005, and if the payment is made, the secured creditor shall not proceed
with the sale or transfer. But, in the case on hand, the borrowers did not come forward to settle the dues on
or before 19.12.2005, viz., the date fixed for sale. The borrowers approached the secured creditor, by way
of three cheques to the value of 25,21,446/- only on 02.01.2006, i.e., after the sale was confirmed and
therefore, got concluded by the authorised officer in favour of the appellant, who is the highest bidder and
therefore, the secured creditor rightly returned those cheques on 04.01.2006 stating that the sale was
already over and sale certificate alone was to be issued, which would be done shortly. Subsequently, the
sale certificate came to be issued by the third respondent/authorised officer on 06.01.2006 as per sub-rule
(7) of Rule 9 of the Rules.
10.5. When the matter stood thus, on 13.01.2006, the borrowers sent a letter dated 13.01.2006 to the
authorised officer, enclosing a demand draft for Rs.25,00,000/- drawn in favour of the second
respondent/Bank and requested the authorised officer to set aside the sale certificate. However, the
authorised officer refused to accept the demand drafts and returned the same stating that sale certificate had
already been issued and there is no scope for setting aside or cancelling the sale certificate. Thereafter, the
borrowers have approached this Court seeking to quash the auction notice dated 14.11.2005 and for a
consequential direction to receive the amount paid by the borrowers towards the loan account and release
the properties from the mortgage.
10.6. For an in depth analysis of this point, some additional relevant facts need emphasis. On
issuance of notices under Section 13(2) of the Act, the borrowers approached the Debts Recovery
Tribunal under Section 17 of the Act. The Tribunal, as a pre-condition to stay the said notices, directed the
borrowers to pay a sum of Rs.1,50,000/- in each case and as the borrowers failed to pay the amount, the
petitions filed by them were dismissed by the Tribunal. Thereafter, the borrowers did not pursue the matter
further before the Tribunal. Later, when the sale was completed, the borrowers again approached the
Tribunal to restore the original petitions dismissed for default along with petitions to condone the delay
and when the matter came up before the Tribunal on 10.01.2006, the Tribunal dismissed the petitions filed
by the borrowers recording the statement of the second respondent/Bank that sale has already
completed and sale certificate was issued to the highest bidder/appellant herein. At this stage, instead of
filing an appeal before the Appellate Tribunal, the borrowers have come before this Court by way of
filing writ petitions, seeking the relief referred supra.
10.7. At the outset, it is to be stated that nothing survives in the notice dated 14.11.2005 to
adjudicate, as, on the date of filing of the writ petitions, the entire proceedings under Section 13(4) of the
Act have come to an end and become final, by issuance of sale certificate under sub-rule (7) of Rule 9 of
the Rules on 06.01.2006. The writ petitions have been prepared and signed by the parties only on
19.01.2006. In such circumstances, the proper course for the borrowers would be to prefer an appeal before
the Appellate Tribunal against the order of the Tribunal dated 10.01.2006 under the provisions of the
SARFAESI Act. The borrowers, however, have approached this Court invoking Article 226 of the
Constitution of India.
10.8. The learned Single Judge, accepting the argument of the learned counsel for the borrowers
that though they have sent three cheques for Rs.25,21,246/- on 02.01.2006 i.e. prior to the issuance of sale
certificate on 06.01.2006, the second respondent has returned those cheques, in contravention of sub-
section (8) of Section 13 of the Act on the ground that sale was already over and confirmation of the
same was to be made shortly, allowed the writ petitions.
10.9. In our considered view, the borrowers should have approached the secured creditor or the
authorised officer before the date fixed for sale and not after the sale, as provided under sub-section (8) to
Section 13 of the SARFAESI Act. As discussed earlier, only if the borrowers approach the secured creditor
or the authorised officer before the date fixed for sale or transfer and tender or pay all the dues to the
secured creditor, the section creates a bar on the secured creditor or authorised officer to proceed further
with the proposed sale or transfer. In this case, admittedly, the date fixed for the sale was 19.12.2005.
But, even according to the version of the borrowers, they approached the secured creditor only on
02.01.2006. In such circumstances, the contention of the learned counsel for the borrowers is without any
basis and contrary to the provisions contained in sub-section (8) of Section 13 of the Act.
10.10. The contention of the learned senior counsel appearing for the appellant/auction purchaser is
that once sale certificate is issued to the auction purchaser after accepting his bid and confirming the sale
on him, as per the provisions of the Act and Rules, the auction purchaser becomes the absolute owner of
the property and all the rights in relation to that property vest with the auction purchaser and no registration
is required as the sale certificate has been issued by the authorised officer of the secured creditor in the
proceedings under SARFAESI Act.
10.11. The crux of the contention of the learned senior counsel for the appellant is that after
issuance of sale certificate, the borrowers, who allowed their property being sold in public auction, cannot
claim the right of redemption placing reliance under Section 60 of the Transfer of Property Act, which right
they should have exercised before the initiation of proceedings or before the date fixed for sale.
10.12. The learned Single Judge, agreeing with the argument advanced by the learned counsel for
the borrowers that the right of redemption which is embodied in Section 60 of the Transfer of Property Act
is available to the mortgagor, unless it has been extinguished by the act of parties and until the sale is
complete by registration, and that the mortgagor does not lose their right of redemption, came to the
conclusion that the sale takes complete shape only after it gets registered and it does not come to end by
issuance of a sale certificate. But, after considering the relevant provisions in the Registration Act,
1908, we are not in agreement with the conclusion arrived by the learned Single Judge in allowing the writ
petitions.
10.13. Part-III of the Registration Act speaks of the registration of documents. Section 17(1) of
the Registration Act enumerates the documents which require compulsory registration. However, sub-
section (2) of Section 17 sets out the documents to which clauses (b) and (c) of sub-section (1) of Section
17 do not apply. Clause (xii) of sub-section (2) of Section 17 of the Registration Act reads as under:
“Section:17(2)(xii) - any certificate of sale granted to the purchaser of any property sold by public
auction by a Civil or Revenue Officer.”
10.14. A Division Bench of this Court in Arumugham, S. & 2 others v. C.K.Venugopal Chetty & 5
others, 1994 (1) LW 491, held that the property transferred by Official Assignee, under order of Court,
does not require registration under Section 17 of the Registration Act. The Division Bench has held as
follows:
“Under Ex.D-7, the Court permitted the Official Assignee to transfer to the guarantor the assets of
the insolvent that are in excess. Being a transfer by order of Court, the document does not require
registration under Section 54 of the Transfer of Property Act, since Section 2(d) of the Transfer of
Property Act says that nothing in the Act (except Section 57 and Chapter IV) applies to transfers
by orders of Court. The document in question does not require registration and there was a
valid conveyance of the 2nd defendant’s 1/4th share to G.”
10.15. When the effect and validity of the sale certificate issued to a purchaser of a property sold
in public auction came up for consideration before the Supreme Court in the recent decision in B.Arvind
Kumar v. Government of India and others, MANU/SC/2834/2007, the Supreme Court, after referring to
Section 17(2)(xii) of the Registration Act, held that when a property is sold in public auction in pursuance
of an order of the Court and the bid is accepted and the Court confirms the sale in favour of the purchaser,
the sale becomes absolute and the title vests in the purchaser. The relevant portion of the judgment of
the Supreme Court is as under:
“10. ... When a property is sold by public auction in pursuance of an order of the Court and
the bid is accepted and the sale is confirmed by the Court in favour of the purchaser,
the sale becomes absolute and the title vests in the purchaser. A sale certificate is issued
to the purchaser only when the sale becomes absolute. The sale certificate is merely the
evidence of such title. It is well settled that when an auction purchaser derives title on
confirmation of sale in his favour, and a sale certificate is issued evidencing such sale and
title, no further deed of transfer from the Court is contemplated or required. In this
case, the sale certificate itself was registered, though such a sale certificate issued by a
court or an officer authorized by the Court, does not require registration. Section 17(2)
(xii) of the Registration Act, 1908 specifically provides that a certificate of sale granted
to any purchaser of any property sold by a public auction by a civil or revenue officer
does not fall under the category of non-testamentary documents which require
registration under sub-sections (b) and (c) of Section 17(1) of the said Act. We,
therefore, hold that the High Court committed a serious error in holding that the sale
certificate did not convey any right, title or interest to plaintiff’s father for want of a
registered deed of transfer.”
 (emphasis supplied)
10.16. In this case, the authorised officer of the secured creditor, exercising the power conferred on
him by SARFAESI Act, pursuant to the proceedings initiated by him brought the secured assets of the
borrowers for sale in public auction, and, in view of the default in repayment of the loan, confirmed the sale
in favour of the highest bidder, the appellant herein and issued the sale certificate on 06.01.2006.
10.17. The ratio laid down by the Division Bench of this Court in Arumugham, S. & 2 others v.
C.K.Venugopal Chetty & 5 others and the Supreme Court in B. Arvind Kumar v. Government of India
and others, referred supra, squarely applies to the case on hand and we, therefore, have no incertitude to
hold that the sale which took place on 19.12.2005 has become final when it is confirmed in favour of the
auction purchaser and the auction purchaser is vested with rights in relation to the property purchased
in auction on issuance of the sale certificate and he has become the absolute owner of the property.
Further, as held by the Division Bench of this Court in Arumugham, S. & 2 others v. C.K. Venugopal
Chetty & 5 others and the Supreme Court in B. Arvind Kumar v. Government of India and others, referred
supra, the sale certificate issued in favour of the appellant does not require any registration in view of
Section 17(2)(xii) of the Registration Act as the same has been granted pursuant to the sale held in public
auction by the authorised officer under SARFAESI Act.
10.18. The finding of the learned Single Judge that the sale is not complete without registration
of sale certificate, therefore, is not sustainable in law and the same is liable to be set aside.
10.19. If the argument of the borrowers that even after the issuance of the sale certificate, prior to
registration, they are entitled to redeem the property is accepted, it would make the provisions of the
SARFAESI Act redundant and the very object of the SARFAESI Act enabling the Banks and Financial
Institutions to realise long term assets, manage problems of liquidity, asset liability mismatch and to
improve recovery of debts by exercising powers to take possession of securities, sell them and thereby
reduce non-performing assets by adopting measures for recovery and reconstruction would fail and would
open a pandora’s box for the litigations upsetting the sale confirmed in favour of the bona fide auction
purchasers, who invested huge money.
10.20. In view of our finding on this point, we hold that the sale of the secured asset in public
auction as per Section 13(4) of SARFAESI Act, which ended in issuance of a sale certificate as per Rule
9(7) of the Rules is a complete and absolute sale for the purpose of SARFAESI Act and same need not be
registered under the provisions of the Registration Act.
11.1. Point (ii): Whether the action of the second respondent in not accepting the amounts paid
by the borrowers and not cancelling the sale certificate before the registration of the sale is in
derogation of Section 60 of the Transfer of Property Act, in view of the Section 37 of SARFAESI Act?
11.2. To decide this point, a reference to Section 37 of SARFAESI Act, which reads as follows, is
apposite:
“Section:37 - Application of other laws not barred.—The provisions of this Act or the rules made
thereunder shall be in addition to, and not in derogation of the Companies Act, 1956 (1 of 1956),
the Securities Contracts (Regulation) Act, 1956 (42 of 1956), the Securities and Exchange
Board of India Act, 1992 (15 of 1992), the Recovery of Debts Due to Banks and Financial
Institutions Act, 1993 (51 of 1993) or any other law for the time being in force.”
(emphasis supplied)
11.3. It is the contention of the learned counsel for the borrowers that when the provisions of
SARFAESI Act are not in derogation of the other laws for the time being in force, as per Section 60 of the
Transfer of Property Act, the borrowers being the mortgagors are entitled to the right of redemption
available to them before the sale is completed by a registered deed and in this case as the borrowers have
approached the second respondent/Bank with a demand draft for Rs.25,00,000/- on 13.01.2006 for
discharge of the loan and when the sale certificate issued on 06.01.2006 was not registered, the second
respondent should have accepted the payment and released the mortgage and re-delivered the possession of
the property and failure to do so is against the provisions of Section 37 of SARFAESI Act.
 11.4. We have more than one reasons to reject the said contention of the learned counsel for the
borrowers.
11.5.1. Firstly, as held by us, while answering point (i) the sale in this case has become absolute
and complete on the date when the sale was confirmed on the appellant/auction purchaser and he is
vested with all the rights in relation to the property purchased by him in the public auction on issuance of
sale certificate on 06.01.2006, i.e., prior to the date on which the borrowers have approached the second
respondent for repayment, contrary to the provisions of Section 13(8) of the SARFAESI Act.
11.5.2. Secondly, the sale certificate issued in this case does not require any registration as per
Section 17(2)(xii) of the Registration Act, 1908 and our said view is fortified with the decisions of the
Division Bench of this Court in Arumugham, S. & 2 others v. C.K. Venugopal Chetty & 5 others and the
Supreme Court in B. Arvind Kumar v. Government of India and others, referred supra.
11.5.3.1. Thirdly, it is true that the borrowers have the right of redemption as provided under
Section 60 of the Transfer of Property Act, 1882, in view of Section 37 of SARFAESI Act and to
substantiate the said stand, the learned counsel for the borrowers relies on the decision of the Supreme
Court in Narandas Karsondas v. S.A.Kamtam and another, (1977) 3 SCC 247, wherein it is held that the
mortgagor has a right to redemption unless the sale of the property was complete by registration in
accordance with the provisions of the Registration Act.
11.5.3.2. With great respect, we are of the view that the decision of the Supreme Court in Narandas
Karsondas v. S.A. Kamtam and another, referred supra, is not applicable to the facts of this case. Even as
held by the Supreme Court in Narandas Karsondas v. S.A. Kamtam and another, referred supra, the right
of the mortgagor to redemption continues only till such time the sale of the property was complete by
registration. In this case, our finding, following the decision of the Division Bench of this Court in
Arumugham, S. & 2 others v. C.K. Venugopal Chetty & 5 others and the Supreme Court in B. Arvind
Kumar v. Government of India and others, referred supra, is that the sale in this case has become
absolute and complete by the issuance of sale certificate on 6.1.2006. Further, Section 17(2)(xii) of the
Registration Act, 1908 does not require registration of a sale certificate granted to any purchaser of any
property sold in public auction by a civil or revenue officer and it is the finding of the Supreme Court in B.
Arvind Kumar v. Government of India and others, referred supra, that the sale certificate issued by a civil
or revenue officer in respect of a property sold in public auction does not fall under the category of non-
testamentary documents which require registration under sub-sections (b) and (c) of Section 17(1) of the
Registration Act, 1908.
11.5.4. Fourthly, the right to redeem the mortgage, as provided in Section 60 of the Transfer of
Property Act, is, of course, a very valuable right possessed by the mortgagor. At the same time, such a
right to redeem the mortgage can be exercised before it is foreclosed, or the estate is sold. It has been held
that the mortgagor can adopt the course provided under Section 60 of the Transfer of Property Act only
before the mortgagee has filed a suit for enforcement of the mortgage and not thereafter, vide Poulose
and another v. State Bank of Travancore, AIR 1989 Ker 79. In this case, as discussed earlier, the
borrowers approached the second respondent/Bank only after initiation of the proceedings under Section
13(4) of the SARFAESI Act, and that too after the property was sold in public auction and the sale was
confirmed in favour of the appellant.
11.6. We, accordingly, find no irregularity or illegality in the procedure followed by respondents 2
and 3.
12.1. Point (iii): Whether Section 35 of the SARFAESI Act has the effect of overriding Section 37
of the SARFAESI Act?
12.2. A comparative study of Sections 35 and 37 of the SARFAESI Act, which read as under, is
indispensable to decide this point:
“Section 35. The provisions of this Act to override other laws.—The provisions of this Act shall
have effect, notwithstanding anything inconsistent therewith contained in any other law for
the time being in force or any instrument having effect by virtue of any such law.”
“Section 37. Application of other laws not barred.—The provisions of this Act or the rules made
thereunder shall be in addition to, and not in derogation of the Companies Act, 1956 (1 of 1956),
 the Securities Contracts (Regulation) Act, 1956 (42 of 1956), the Securities and Exchange
Board of India Act, 1992 (15 of 1992), the Recovery of Debts Due to Banks and Financial
Institutions Act, 1993 (51 of 1993) or any other law for the time being in force.”
12.3. The Apex Court has also upheld the validity of the SARFAESI Act in the case of Mardia
Chemicals Ltd. v. Union of India, 2004 (4) SCC 311, except sub-section (2) of Section 17.
12.4. As per Section 37 of the SARFAESI Act, the provisions of this Act shall be “in addition to”
and “not in derogation of” any other law for the time being in force. There is no ambiguity in the
understanding the legislative intent behind the framing of this section.
12.5. On behalf of the borrowers it is contended that a right of redemption available to them before
the sale is completed by way of a registered deed under the Transfer of Property Act, a law for the time
being in force, is not taken away by the introduction of the SARFAESI Act, by virtue of Section 37 of the
SARFAESI Act, as the provisions of the SARFAESI Act and the Rules framed thereunder shall be in
addition to and not in derogation of the right of redemption conferred under the Transfer of Property Act.
But, we have already rendered a finding that the registration of sale certificate as per Section 17(2)(xii) of
the Registration Act is not mandatory for the completion of the sale pursuant to the public auction and
issuance of the sale certificate under the scheme of the SARFAESI Act. Assuming, the right of redemption
conferred under the Transfer of Property Act is protected under Section 37 of the SARFAESI Act, and
independently available without reference to the registration of the sale certificate under Section 17(2)
(xii) of the Registration Act, the sale already effected satisfying the conditions contemplated under Section
13(8) of the SARFAESI Act, shall, by virtue of Section 35 of the SARFAESI Act, prevail over such other
rights, much less the right of redemption conferred under Transfer of Property Act, which is protected
under Section 37 of the SARFAESI Act, in view of the non-obstante clause provided under Section 35 of
the SARFAESI Act, because a non-obstante clause provided under Section 35 of the SARFAESI Act
makes it clear that even though there are inconsistencies to such other rights conferred under any other law
for the time being in force that are protected under Section 37 of the SARFAESI Act, the action initiated
under the provisions of the SARFAESI Act shall have the overriding effect as per Section 35 of the
SARFAESI Act, because SARFAESI Act is a special Act which aims to accelerate the growth of economy
of our country empowering the lenders, namely Nationalised Banks, Private Sector Banks and other
Financial Institutions to realise their dues from the defaulted borrowers who are very lethargic in repayment
of the loans borrowed by them, by exercising their right of expeditious attachment and foreclosure for the
enforcement of security and therefore, Sections 35 and 37 of the SARFAESI Act have to be read conjointly
to achieve the object of the SARFAESI Act, but not to defeat the same and therefore, we do not see any
conflict between them.
12.6. That apart, a non-obstante clause is a legislative device which is usually implied to give
overriding effect to certain provisions over some contrary provisions that may be found either in the
same enactment or some other enactment, that is to say, to avoid the operation of all contrary provisions,
vide Union of India v. G.M.Kokil, 1984 Supp. SCC 196.
12.7. For the reasons aforesaid, point (iii) is answered in affirmative.
Resultantly, these appeals are allowed and the order of the learned Single Judge dated 09.03.2007
made in W.P(MD)Nos.634 and 635 of 2006 is set aside and the writ petitions are dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.