[2008 (1) T.N.C.J.

481 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE:
G. RAJASURIA, J.
THE DIVISIONAL MANAGER, THE ORIENTAL
INSURANCE CO. LTD., THENI TOWN ...Appellant
Versus
S. THANGAVEL AND OTHERS ...Respondents
[C.M.A. (MD) No. 1616 of 2007 and M.P. (MD) No. 1 of 2007, decided on 3 January, 2008]
rd

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

Sustainability—Age of claimants 34 and 30—Death of minor—Award of Rs. 5,000/- each
towards loss of love and affection—Total Rs. 10,000/- —Rs. 5,000/- awarded towards
funeral expenses—Rs. 5,000/- towards transport expenses—Deduction of 1/3 rd amount from
notional income—Award of Rs. 1,50,000/- towards loss of income—Compensation assessed
Rs. 1,80,000/- —Interest applied @ Rs. 7.5% p.a.—Appeal partly allowed—Compensation
awarded by Tribunal reduced from Rs. 2,37,500/- to Rs. 1,80,000/- with 7.5% p.a. interest.
(Paras 10 to 12)
Case law.—2005 (1) T.A.C. 609 SC; 1996 (4) SCC 362; 2007 (5) SCC 428—relied upon;
2007 (3) TAC 16 (SC); Civil Appeal No. 4725 of 2005 decided on 8.11.2006; 2005 (2) TAC 297
(SC); 2006 (1) TAC 1 (SC)—referred.
Counsel.—Mr. K. Bhaskaran, for the appellant; No appearance, for the respondents.
Important point
Out of the notional income 1/3 amount has to be deducted towards the expenditure which
rd

the deceased would have incurred for maintaining himself had he been alive.
JUDGMENT
G. RAJASURIA, J.—This appeal is focussed as against the judgment and decree dated
26.03.2007, passed in M.C.O.P.No.48 of 2006, on the file of the Motor Accidents Claims
Tribunal, Sub-Court, Periyakulam.
2. Heard the learned counsel for the appellant. Despite printing the name of the
respondents no one appeared.
3. The challenge in this civil miscellaneous appeal is relating to the quantum of
compensation awarded by the Tribunal, vide judgment dated 26.03.2007, to a tune of
Rs.2,37,500/-(Rupees Two Lakhs and Thirty-seven Thousand and Five Hundred only) on the
following sub-heads:
(i) For Loss of Income - Rs. 2,25,000.00
(ii) For Transport Expenses - Rs. 500.00
(ii) For Funeral Expenses - Rs. 2,000.00
(iv) For Love and Affection - Rs. 10,000.00
Total - Rs. 2,37,500.00

4. The nitty gritty, the gist and kernel of the grievances of the appellant as found set out in
the grounds of appeal could be portrayed thus:
 A boy of 10 years old met with an accident and died leaving behind the claimants as his
parents, who are aged about 34 and 30 respectively and the deceased boy was a V Standard
Student at the relevant time of the accident. The Tribunal awarded a compensation of
Rs.2,37,500/-.
5. Being aggrieved by and dissatisfied with the said award, the appellant insurance
company filed this appeal on the following main grounds inter-alia thus:
The Tribunal even though has chosen the notional income of the deceased as Rs.15,000/-
presumably by taking a cue from the second schedule appended to the Motor Vehicles Act, yet it
did not choose to deduct 1/3 income towards the expenditure which the deceased would have
incurred for maintaining himself had he been alive. The multiplier 15 chosen is also on the higher
side.
6. During trial, on the side of the claimants P.W.1 was examined and Exs.P.1 to 7 were
marked and there was no oral or documentary evidence adduced on the side of the respondents.
7. Point for consideration is as to whether the compensation awarded is just and proper?
8. Point: The learned counsel for the appellant by placing reliance on the recent decision
of the Honourable Apex Court in (i) Kaushlya Devi v. Shrikaran Arora reported in 2007(3)
T.A.C. 16 (SC) and (ii) unreported judgment in Appeal (Civil) No.4725 of 2005 (New India
Assurance Co. Ltd. v. Satender and Ors.) dated 08.11.2006, would develop his arguments
to the effect that the Honourable Apex Court in the 1st decision cited supra awarded only a
compensation of Rs.1,00,000/- relating to the death of a boy of 10 years old and under the
second decision cited above the Honourable Apex Court awarded a sum of Rs.1,80,000/-,
relating to the death of a boy of 9 years old. He would also submit that even though the
Honourable Apex Court in its decision in Manju Devi v. Musafir Paswan, reported in 2005(1)
T.A.C. 609 (S.C.) relating to the death of a boy of 13 years old awarded a compensation of
Rs.2,25,000/-, yet the concept relating to deduction of 1/3 rd amount was not taken into
consideration, however in the subsequent decisions of the Honourable Apex Court the position is
different.
9. At this juncture I would like to highlight as to how to construe the ratio-decidendi of a
decision of the Honourable Apex Court. If the Honourable Apex Court render a judgment on a
contentious issue certainly that would constitute ratio-decidendi, which would be binding on
all the Courts below. However in Manju Devi v. Musafir Paswan reported in 2005(1) T.A.C.
609 (S.C.) the Honourable Apex Court without deciding any specific issue relating to deduction
of 1/3rd towards expenditure which the deceased would have incurred for maintaining himself,
awarded compensation. In U.P. State Road Transport Corporation v. Trilok Chandra reported in
(1996) 4 SCC 362 the Honourable Apex Court mandates that such 1/3rd of the income
should be deducted. Now the latest decisions of the Honourable Apex Court as highlighted supra
mandate deduction of such 1/3rd from the income of the deceased. Hence, for the aforesaid
reasons I disagree with the view taken by the Tribunal that 1/3 rd amount should not be deducted
towards the expenditure which the deceased would have incurred for maintaining himself had he
been alive. Even though Motor Vehicles Act is a benevolent legislation, yet the principles
relating to interpretation of statues should be necessarily followed and evidence should be
demanded by the Court before awarding compensation under any sub-head. To point out one
such decision I would like to refer to the decision in Oriental Insurance Co. Ltd. v. Meena
Variyal reported in (2007)5 SCC 428. Hence, I am of the considered opinion that out of the
notional income 1/3rd amount has to be deducted towards the expenditure which the deceased
would have incurred for maintaining himself had he been alive.
10. Considering the age of the claimants as 34 and 30 which are above 30 and below 35,
and that there are imponderables involved in case of this nature involving death of minor as
highlighted in the decisions second cited supra, the multiplier can be accepted as such.
Towards loss of love and affection a sum of Rs.5,000/- each was awarded which could be
enhanced to Rs.10,000/- (Rupees Ten Thousand only) each. Towards funeral expenses a sum of
Rs.2,000/- was awarded which could be enhanced to Rs.5,000/- (Rupees Five Thousand only).
Towards Transport Expenses awarding a sum of Rs.5,000/- (Rupees Five Thousand only) could
be appropriate. As such the compensation awarded is modified as under:
(i) For Loss of Income
Rs.15,000/- x 15 x 2/3 - Rs. 1,50,000.00
(ii) For Transport Expenses - Rs. 5,000.00
(iii) For Funeral Expenses - Rs. 5,000.00
(iv) For Love and Affection - Rs. 20,000.00
Total - Rs. 1,80,000.00

11. The learned counsel for the appellant would convincingly argue that the interest
awarded was 9% p.a., but it should only be 7.5% p.a. in commensurate with the decisions of the
Hon’ble Apex Court in Tamil Nadu State Transport Corporation Ltd. v. S.Rajapriya and others
reported in 2005(2)TAC 297 (SC) and in New India Assurance Co. Ltd. v. Charlie and another
reported in 2006(1)TAC 1 (SC). Hence, the interest awarded is reduced to 7.5% p.a. instead of
9% p.a.
12. In the result, this appeal is partly allowed and the compensation awarded by the
Tribunal is reduced from Rs.2,37,500/-(Rupees Two Lakhs and Thirty-seven Thousand and Five
Hundred only) to Rs.1,80,000/- (Rupees One Lakh and Eighty Thousand only). The rate of the
interest awarded by the Tribunal at 9% p.a. is reduced to 7.5% p.a. In other aspects the award
shall hold good.
Consequently, connected M.P.(MD) No.1 of 2007 is closed. No costs.
Appeal partly allowed.

[2008 (1) T.N.C.J. 484 (Mad)]

MADRAS HIGH COURT
BEFORE:
S.J. MUKHOPADHAYA AND M. VENUGOPAL, JJ.
M/S. SUN T.V. LTD. REP. BY ITS
MANAGING DIRECTOR AND OTHERS ...Appellants
Versus
DINAMALAR (A PARTNERSHIP CONCERN) AND ANOTHER ...Respondents
[O.S.A. No. 255 of 2007 and M.P. No. 1 of 2007, decided on 4th January, 2008]
(A) Civil Procedure Code, 1908—Order XXXIX, Rule 1— Temporary injunction
—Grant of—Prima facie case made out for grant in the manner as was sought for—
Inference of.
(Paras 5, 7 and 8)
(B) Civil Procedure Code, 1908—Order II, Rule 2— Objection—Relating to
suppression of fact or maintainability of second suit—No specific finding could be recorded
without taking into account the evidence placed during trial—Trial Judge rightly
refused to express any opinion at the preliminary stage.
 (Paras 6 and 8)
Case law.—2006 (2) LW 377—referred.
Counsel.—Mr. P.S. Raman, S.C. for, Mr. B.K. Girish Neelakandan, for the appellants;
Mr. K.V. Subramanian, SC, for Mr. M.A. Abdul Wahab, for the respondents.
Important point
No opinion could be expressed by the Court on the mere objection relating to suppression
of fact or maintainability of the second suit, without taking into consideration the evidence as
may be placed during trial.
JUDGMENT
S.J. MUKHOPADHAYA, J.—The respondents are the plaintiffs, who preferred the suit, C.S.
No.666/07 for direction on defendants (appellants herein) to pay the plaintiff a sum of Rs.10
Lakhs as damages for the defamation and for permanent injunction restraining the defendants
from in any manner publishing/telecasting or broadcasting the news depicting Mr. Ramesh as
“Dinamalar Ramesh” or “Owner of Dinamalar” either by way of picture, sound or scroll methods
in their TV channel, namely, Sun TV, Sun Group TV Network, etc.
2. In an application for grant of ad-interim injunction, in the manner as sought for in
the suit, learned Judge, by impugned order, made following observation and passed ad-interim
injunction :—
“21. ..... I do not find that at this stage, it is advisable to get into the merits and
demerits of the claims of the parties. The plaintiff has no objection in the
publication of any news items except in cases where the narration is of such a
nature to cause damage to the image of the plaintiff. I do not find any illegality
or irrationality in such a plea. Considering the same, I hold that the plaintiff
is entitled to an order of injunction which is restricted only to the extent of
descriptive manner of depicting the said Ramesh as the son of the partner of the
plaintiff firm or prefixing the name of the plaintiff’s newspaper to the name of
Ramesh.”
3. According to learned counsel for the appellant, Mr. Ramesh is the son of Dr. R.
Krishnamurthy, who is one of the partners of the 1st plaintiff, Dinamalar. The said 1st plaintiff,
Dinamalar, has already preferred an earlier suit, C.S. No.626/07 for same cause of action and
prayed for permanent injunction restraining defendants 1 to 4 of the suit, who are also defendants
in the subsequent suit (C.S. No.666/07), their men, agents, servants, representatives, etc., from
and in any way interfering with the business of the plaintiff, Dinamalar, either by making any
publication or any telecast in Sun TV, Sun News, Dinakaran or in Tamil Murasu against the
plaintiffs, its internal affairs, its partners, employees under the guise of publishing or telecasting
calling it as news item, thereby attempting to ruin the business of the plaintiff.
In the said suit, though interim injunction was sought for with similar prayer as made in
the present case, no interim order of injunction has been passed and mere notice has been issued
on the defendants. Subsequent suit, i.e., the present one, C.S. No.666/07 has been preferred by
the same 1st plaintiff, Dinamalar, through another partner and claimed for damages and similar
permanent order of injunction, suppressing the fact relating to filing of the earlier suit in which
notice has been issued. Learned counsel for the appellant, in fact, assailed the institution of the
second suit, apart from interim order of injunction as issued in the said suit, on the following
grounds :—
(a) The 1st plaintiff, Dinamalar, being common to both the suit, consequently, non-
disclosure of earlier suit in the present suit amounts to suppresio veri / suggestio
falsi and, therefore, relief of interim injunction should not have been granted in
the subsequent suit;
 (b) The 1st plaintiff, Dinamalar, having sued the defendant for bare permanent
injunction, having disclosed in the first suit that they have suffered damages, are
barred from filing the second suit without taking leave under Order II, Rule 2
of the Code of Civil Procedure; and
(c) The defendants (appellants herein) are part of the Press and Electronic Media,
publication of any news item cannot be restrained by passing interim order of
injunction pursuant to an interlocutory application in a defamatory suit.
He placed reliance on a Bench decision of this Court in R.Rajagopal @ R.R.Gopal @
Nakkheeran Gopal & Anr. v. J. Jayalalitha and Anr. reported in 2006 (2) LW 377. That case
arose out of a suit for defamation and the appeal was preferred against order granting injunction.
In the said case, Division Bench observed that though the expression “freedom of press is not
used in Article 19, it is included as one of the guarantees under Article 19 (1) (a); right to publish
and freedom of press is enshrined under Article 19 (1) (a) are sacrosanct and only parameters of
restrictions are provided under Article 19 (2); freedom of speech and expression of opinion is of
paramount importance in a democratic Constitution, which envisages changes in the composition
of Legislatures and Governments, and must be preserved”. In the said case, it was held that the
order of single Judge amounted to a gag order or censorship of press.
4. Learned counsel for the respondents/plaintiffs, while tried to suggest that there are
separate cause of action and separate relief has been sought for in two different suits, submitted
that the plaintiffs are entitled to sue the defendants for damages. Referring to news items
published in newspaper “Dinakaran” as well as in the TV channel, it was submitted that false
news were made against the plaintiff firm depicting an ex-employee as one of the partners son. It
is stated that false allegation against the plaintiffs had prejudiced the business of the applicant and
in such circumstance, a prima facie case having made out, taking into consideration the balance
of convenience and irreparable loss, learned Judge rightly passed the impugned order.
5. We have noticed the rival contentions as also the order dated 8th August, 2007, passed
by learned Judge in the interlocutory application as was preferred by respondents/plaintiffs. It has
been accepted by respondents/plaintiffs that Mr. Ramesh is the son of Dr. R. Krishnamurthy,
who is one of the partners of Dinamalar. It is also admitted at Bar that a free printing or
electronic media/press is independent to report and highlight any fact, if not distorted and if
not issued to malign any individual person, including a partnership firm or company. It is
admitted by counsel for the appellants/defendants that Mr. Ramesh himself do not prefix or
suffix the word “Dinamalar”, i.e., the name of the newspaper/partnership firm before or after his
name. Therefore, the printing or electronic media/press cannot prefix or suffix name of a
newspaper or a partnership firm before the name of Mr. Ramesh. It has not been disputed by
learned counsel for the appellants/defendants that Mr. Ramesh is not the owner of “Dinamalar”
and, therefore, no publicity can be given by any Press through printing or electronic media
showing Mr. Ramesh as owner of ‘Dinamalar’. Such fact having admitted, we are of the view
that the respondents/plaintiffs has made out a prima facie case for grant of temporary injunction,
particularly in the manner as they have sought for.
6. So far as the question relating to suppression of fact relating to earlier suit or taking
leave under Order II, Rule 2 of the Code of Civil Procedure is concerned, we are of the view that
no specific finding could have been given by learned Judge, without taking into consideration the
evidence as may be placed during trial and merely on the basis of the submission made by the
parties. Therefore, learned Judge rightly refused to express any opinion with regard to such
objection relating to suppression of fact or maintainability of the second suit in absence of leave
under Order II, Rule 2 of the Code of Civil Procedure.
 7. So far as impugned order dated 8th August, 2007, passed by learned single Judge is
concerned, we have noticed the submission as made by counsel for the appellants/defendants that
learned single Judge, while held that the plaintiff is entitled to an order of injunction, which is
restricted to prefixing the name of the plaintiff newspaper to the name of Mr. Ramesh, also
observed that the plaintiff is entitled to an order of injunction to the extent of descriptive manner
of depicting the said Mr. Ramesh as the son of the partner of the plaintiff firm.
Learned counsel appearing on behalf of the respondents/plaintiffs accepted that no such
injunction was sought for to the extent of descriptive manner of depicting the said Ramesh as the
son of the partner of the plaintiff firm. This is also clear from the relief as sought for in the main
suit and application for interim injunction as was preferred in C.S. No.666/07. We, therefore,
hold that the order of injunction passed by learned Judge dated 8th August, 2007, so far as it
relates to restricting the appellants/defendants to the extent of descriptive manner of depicting the
said Ramesh as the son of the partner of the plaintiff firm is uncalled for and, thereby, we set
aside such part of the observation and order of injunction as issued by learned single Judge.
8. Considering the facts of the case and the stand taken by the parties, we hold that the
respondents/plaintiffs is entitled to an order of injunction, which is restricted only to the extent of
prefixing the name of plaintiff newspaper to the name of Mr.Ramesh and/or depicting the said
Ramesh as the owner of Dinamalar. Recording the submissions, the injunction granted by
learned single Judge dated 8th August, 2007, is modified to the extent above. The rest of the
issues as may be raised, including leave obtained or not or the maintainability of the second suit
may be gone into at the time of the trial. The appeal stands disposed of with the aforesaid
observations. Consequently, connected miscellaneous petition is closed. There shall be no order
as to costs.
Appeal disposed of.

[2008 (1) T.N.C.J. 489 (Mad)]

MADRAS HIGH COURT
BEFORE:
M. VENUGOPAL, J.
M/S. VIVIDH HI-FAB REP. BY ITS PARTNER ...Petitioner
Versus
M/S. GEN ENERGY SYSTEMS INDIA LTD. ...Respondent
[C.R.P. (N.P.D.) No. 229 of 2004 and C.M.P. No. 1974 of 2004, decided on 26 December,
th

2007]
Civil Procedure Code, 1908—Sections 47 and 151—Execution of decree—Objection
against—Decree passed found to be without jurisdiction, is nullity and void—Dismissal of
execution petition—Legality of—Executing Court cannot go beyond the decree except
where the decree is void ab initio or without jurisdiction— Application to set aside ex
parte decree dated 31.12.2002 pending before the original Court—Orders are awaited from
the concerned Court—Taking note of the event—To promote substantial cause of justice
and to prevent aberration of justice, Executing Court can wait for four months—No
prejudice will be caused to the parties—Executing Court directed to wait for four
months due to the pendency of the matter. (Paras 15 to 18)
Case law.—AIR 2004 SC 4377; 2004 (1) SCC 287; AIR 1999 SC 246; 1999 (9) SCC 198;
AIR 1976 KNT 56.
Counsel.—Mr. G. Thangapandian, for the petitioner; Mr. G. Sundaram, for the
respondent.
 Important point
Executing Court can take into consideration, the subsequent events.
JUDGMENT
M. VENUGOPAL, J.—The civil revision petitioner/decree holder is the plaintiff in the suit
O.S.No.582 of 2002 on the file of Civil Judge (Sr.Div.), Vadodara. The respondent is the
defendant/judgment debtor in the suit who has filed E.A.No.4714 of 2003 in E.P.No.757 of 2003
in O.S.No.582 of 2002 on the file of learned IX Assistant Judge, City Civil Court, Chennai.
2. The civil revision petitioner/decree holder/ respondent has obtained a decree on
31.12.2002 on the file of 3rd Joint Civil Judge (Sr.Div.), Vadodara against the Judgment
Debtor/respondent who filed E.A.No.4714 of 2003. The decree in O.S.No.582 of 2002 was
transmitted to City Civil Court, Chennai for its execution.
3. The respondent/judgment debtor has preferred E.A.No.4714 of 2003 in E.P.No.757 of
2003 in O.S.No.582 of 2002 on the file of learned IX Assistant Judge, City Civil Court, Chennai
under Sections 47 and 151 of Civil Procedure Code praying to declare that the decree passed on
31.12.2002 in Summary Special Suit No.582 of 2002 issued by the Joint Civil Judge, Vadodara is
null and void and is incapable of execution.
4. In the counter filed by the civil revision petitioner/respondent/ plaintiff/decree holder, it
is inter-alia mentioned that the respondent/ applicant/ defendant/judgment debtor has not taken
any steps to set aside the decree passed on 31.12.2002 by the trial Court and that the decree has
been passed by a competent Court and that it is a valid and executable decree and that the
issue of jurisdiction and question of fact regarding the terms of contract cannot be urged before
the Executing Court and that the application is liable to be dismissed.
5. The learned IX Assistant Judge, City Civil Court, Chennai in the order dated 11.11.2003
passed in E.A.No.4714 of 2003 in E.P.No.757 of 2003 in O.S.No.582 of 2002 has held that “a
Court at Vadodara has no jurisdiction to try this case and hence, the decree passed without
jurisdiction is nullity and void and unexecutable in the Executing Court” and resultantly allowed
the application in dismissing the execution petition.
6. The learned counsel for the revision petitioner/respondent/ plaintiff/decree holder
urges that the order dated 11.11.2003 passed by the learned IX Assistant Judge in E.A.No.4714 of
2003 in E.P.No.757 of 2003 in O.S.No.582 of 2002 (transmitted decree from Vadodara) is illegal
in view of the fact that the Executing Court cannot go behind the tenor of the decree and that the
decree will become a nullity only if a decree was passed by a Court which lacks inherent
jurisdiction and that the Vadodara Civil Court has inherent jurisdiction by means of pecuniary
and cause of action.
7. It is further contended on behalf of the civil revision petitioner/decree holder/plaintiff
that the respondent/applicant/judgment debtor has failed to appear before the concerned Court
when Court notice was served on it and having failed to raise his objections in the suit
proceedings, it cannot take a plea before the Executing Court.
8. On behalf of the civil revision petitioner/decree holder/plaintiff reliance is placed on the
decision AIR 2004 SC 4377 (Balavant N.Viswamitra v. Yadav Sadashiv Mule) wherein it is
observed as follows:
“(A) Civil P.C. (5 of 1908), Section 47, Order XXI, Rule 58—Inexecutable decrees—
Irregular or wrong decrees or orders—Are not necessarily null and void—
Suit for possession—Proceedings initiated against heirs of deceased tenant
—Notice terminating tenancy sent to heirs and legal representatives of
deceased by registered post which had come back—Notice under certificate of
posting did not come back—Notice was, affixed on suit premises—From the
record, it is also clear that defendants were aware of proceedings and they had
 engaged counsel who was present when plaintiff was examined—Thereafter,
with permission of Court, counsel withdrew his appearance because he had no
instructions in matter from defendants and a decree was passed—Decree having
been passed by competent Court having jurisdiction over subject matter—Is not
null and void—Cannot be objected in execution proceedings.”
9. He further cited (2004) 1 SCC 287 (Rafique Bibi v. Sayed Waliuddin) wherein it is held
as follows:
“B. Civil Procedure Code, 1908, Sections 47 and 33—Decree—”Illegal decree” and
“null/void decree”—Executability of—Difference in—Powers of Executing
Court in this regard—Remedy in case of “nullity”—Held, if “nullity” of decree,
for want of jurisdiction, is patent on face of the decree then Executing Court may
take cognizance of the nullity—Else normal rule that Executing Court cannot go
behind the decree prevails—Remedy in case of “illegality”—Held, is to have it
set aside in a duly constituted legal proceedings or by a superior Court, failing
which command of decree must be obeyed—Decree passed by a Court of
competent jurisdiction cannot be denuded of its efficacy by any collateral
attack or in incidental proceedings—Rent Control and Eviction—Execution
of eviction decree—Plea of nullity/illegality—Change in law during pendency of
suit—Effect.”
10. The learned counsel for the civil revision petitioner/decree holder/plaintiff pressed into
service the decision AIR 1999 SC 246 (Bhawarlal Bhandari v. M/s. Universal H.M.L.
Enterprises) wherein it is held thus:
“(A) Arbitration Act (10 of 1940), Section 14—Award—Filing of—Award decree not
shown to be passed without jurisdiction—Respondent judgment-debtor not filing
objections—Award decree becoming final—Plea by judgment-debtor in
execution proceedings to ignore the decree as being nullity—Not tenable.”
11. The civil revision petitioner/decree holder/plaintiff earlier preferred C.R.P.
(NPD).229 of 2004 before this Court and in C.M.P.No.1974 of 2004, this Court has passed orders
on 12.02.2004 directing the respondent/judgment debtor to deposit a sum of Rs.3,00,000/-
to the credit of E.P.No.757 of 2003 on the file of IX Assistant City Civil Court, Chennai.
12. According to the learned counsel for the respondent/judgment debtor/applicant, the
Court at Vadodara has no jurisdiction to pass a decree in the present case on account of
conditions specified in the purchase order dated 03.03.1999 made between the parties which
fixed the competent Court within the limits of Chennai and that the Executing Court can hear
objections that the decree is a nullity and this can be decided under Section 47 of the Civil
Procedure Code.
13. According to the learned counsel for the respondent/judgment debtor/defendant, the
admitted claim is only Rs.30,000/- and that in the application to set aside the decree dated
31.12.2002 passed in O.S.No.582 of 2002 by the 3rd Joint Civil Judge (Sr.Div), Vadodara, the
orders are awaited.
14. This Court has noticed the respective contentions of the parties.
15. In general, the Executing Court should not interfere with the decree and execute the
decree as its stands in the considered opinion of this Court. As a matter of fact, the Executing
Court can take into consideration, the subsequent events as per decision (1999) 9 SCC page
198, 199. Moreover, no Executing Court can go beyond the decree except where the decree is
void ab initio or without jurisdiction.
 16. In AIR 1976 KNT 56 it is observed that “the Executing Court cannot challenge
jurisdiction of Court which passed the decree”. Admittedly, the respondent/judgment
debtor/defendant has filed an application to set aside the decree at Vadodara before the
concerned Court and that orders are awaited thereto. Before passing of the decree on 31.12.2002
in O.S.No.582 of 2002 on the file of 3rd Joint Civil Judge, (Sr.Div), Vadodara, it appears that the
respondent/judgment debtor/ applicant has not raised the issue of jurisdiction or lack of
jurisdiction. Only after passing of the decree dated 31.12.2002 in O.S.No.582 of 2002 the
application to set aside the decree has been filed by the respondent/judgment debtor/applicant.
Inasmuch as the orders are awaited from the concerned competent Court at Vadodara in the
application filed by the respondent/judgment debtor/applicant, taking note of the events and
without expressing any opinion on the merits of the case, this Court is of the considered view that
to promote substantial cause of justice and to prevent aberration of justice, the Executing Court
can wait for four months as to the verdict in the said application by the concerned Court at
Vadodara and till such time, this Court opines no prejudice will be caused to either parties and in
that view of the matter, the civil revision petition is allowed.
17. In fine, the civil revision petition is allowed. The order passed by the learned IX
Assistant City Civil Court, Chennai dated 11.11.2003 made in E.A.No.4714 of 2003 in
E.P.No.757 of 2003 in O.S.No.582 of 2002 is set aside. The Executing Court is directed to wait
for four months as to the verdict in the application to set aside the ex parte decree pending
before the concerned competent Court at Vadodara and till such time, this Court opines no
prejudice will be caused to either parties and thereafter, the Executing Court shall proceed with
the matter pending before it in the manner known to law.
18. Considering the facts and circumstances of the case, the parties are directed to bear
their respective costs. Consequently, connected miscellaneous petition is closed.
Petition allowed.

[2008 (1) T.N.C.J. 493 (Mad)]

MADRAS HIGH COURT
BEFORE:
M. VENUGOPAL, J.
C.M. DEVARAJ ...Petitioner
Versus
V. NARASIAH NAIDU ...Respondent
[C.R.P. (N.P.D.) No. 903 of 2004 and C.M.P. Nos. 7136 and 7137 of 2004, decided on 4th
January, 2008]
(A) Tamil Nadu Buildings (Lease and Rent Control) Act, 1960—Section 10 (3) (a) (i)
—Eviction petition—Landlord bona fide requiring the premises for his own occupation—
Benefit of protection under Section 10 (3) (i) and 10 (4)(i) claimed by tenant—
Granted—Eviction petition dismissed—Appeal against—Allowed—Eviction ordered—
Legality of—Benefit of Section 10 (4) of the Act was not available to tenant when he was
transferred from Chennai to Madurai—Finding recorded by the Lower Appellate Court—
During pendency of revision tenant have retired—Subsequent event—Court can certainly
take note of—Finding of Rent Controller in regard to bona fide requirement construed as
ab initio—Matter remitted to the Rent Controller to go into the issue of bona fide
requirement of landlord and deal with the matter de novo.
(Paras 13 to 16)
(B) Tamil Nadu Buildings (Lease and Rent Control) Act, 1960—Section 10 (3)(a)(i)—
Scope of—Use of expression “is not occupying a residential building of his own”—Meaning
of—Landlord is not occupying a residential building of which he is the absolute owner.
(Para 8)
(C) Tamil Nadu Buildings (Lease and Rent Control) Act, 1960—Section 10 (4)—
Scope of—Prescribes a mandatory direction fettering the Rent Controller to pass any
eviction against the person who comes within the ambit of the provision. (Para 9)
Case law.—1976 TLNJ 106; 1969 (2) SCJ 123; AIR 1971 SC 442; 1971 MLJ 488;—
referred.
Counsel.—M/s. N. Jayabalan, for the petitioner; M/s. V. Chandra-kanthan, for the
respondent.
Important point
When there is a mandatory direction prohibiting the Court to pass any eviction order
against a person who comes squarely under Section 10 (4) of the Tamil Nadu Buildings (Lease
and Rent Control) Act, 1960, the finding on other issues regarding the bona fides must be
construed as ab initio void.
JUDGMENT
M. VENUGOPAL, J.—The revision petitioner is the tenant. The respondent/landlord has
filed a petition before the learned Rent Controller, Ambattur (District Munsif, Ambattur) under
Section 10(3)(a)(i) of the T.N. Buildings (Lease and Rent Control) Act, 18 of 1960 and as
amended by Act 1973 bona fide requiring the petition premises for his own occupation and for
evicting the revision petitioner/tenant from the petition premises and directing him to vacate and
deliver vacant possession of the same.
2. The civil revision petitioner/tenant filed a detailed counter in the rent control
proceedings specifically stating that is employed as a Senior Officer in the Tamil Nadu
Cooperative Milk Producers Federation Limited, which is classified as a Essential Service and as
such he is entitled to protection under Section 10(3)(i) and 10(4)(i) of the Rent Control Act.
3. The learned Rent Controller after considering the oral and documentary evidence let
in on both sides came to the conclusion that the petition premises is required bona fide for the
occupation of respondent/landlord/ petitioner and held that the civil revision petitioner/
respondent/tenant is entitled to get the benefit under Section 10(4)(i) of the Act and resultantly
dismissed the petition.
4. The respondent/landlord preferred the appeal R.C.A.No.7 of 2002 before the learned
Appellate Authority viz., Sub-Judge, Poonamallee under Section 23 of Tamil Nadu Buildings
(Lease and Rent Control) Act, 1960 as amended by Act 23/73 and 1/1980 and the learned
Appellate Authority by his order dated 11.12.2003 has allowed the Rent Control Appeal
without costs in setting aside the order and decree passed by the learned Rent Controller and
ordered eviction by giving a direction to the civil revision petitioner/tenant/respondent to put the
respondent/landlord/ petitioner in possession of the petition premises within two months from the
date of the order.
5. The learned counsel for the civil revision petitioner/tenant urges that the learned
Appellate Authority has not given any finding regarding bona fide requirement of the landlord
and that there is no discussion in the order of the Appellate Authority as to the requirement of
bona fide of the landlord and that the subsequent development in the matter is that the civil
revision petitioner/tenant has retired from service after attaining the age of superannuation
pending civil revision petition and therefore, prays for allowing the civil revision petition.
6. Contending contra, the learned counsel for the respondent/landlord/petitioner submits
that when the learned Appellate Authority viz., Sub-Judge, Poonamallee has allowed the Rent
Control Appeal by his order dated 11.12.2003, he has impliedly confirmed the order dated
03.08.2002 passed by the learned Rent Controller, Ambattur (District Munsif, Ambattur) in
respect of the bona fide requirement of the landlord in the Rent Control Proceedings in
R.C.O.P.No.29 of 1999 and therefore, the order of the learned Appellate Authority does not
suffer from any infirmity in the eye of law.
7. It is further represented on behalf of the revision petitioner/ tenant that as per Section
23 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 any person aggrieved by an
order passed by the Controller can file an appeal before the Appellate Authority having
jurisdiction in the matter and in that perspective, the revision petitioner/tenant is legally
competent to prefer an appeal viz., the present R.C.A.No.7 of 2002 and in the said appeal, the
revision petitioner/tenant is legally entitled to canvass the issue of bona fide requirement of the
landlord, which was not admittedly adverted to specifically by the learned Appellate Authority
viz., Sub-Judge, Poonamallee in R.C.A.No.7 of 2002 dated 11.12.2003.
8. Generally, as per Section 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent
Control) Act, 1960, the respondent/landlord/petitioner is bound to establish that he is not
occupying residential building of his own or that of the members of his family in the Town or
City. As a matter of fact, the expression ‘is not occupying a residential building of his own’
means that the landlord is not occupying a residential building of which he is the absolute owner.
9. It is relevant to point out that Section 10(4) of the Tamil Nadu Buildings (Lease and
Rent Control) Act, 1960 prescribes a mandatory direction fettering the Rent Controller to pass
any eviction against the person who comes within the ambit of Section 10(4) of the Act. In this
connection, it is useful to refer to the decision in 1976 TLNJ page 106 at page107
(M.Govindarajulu v. N.Jayaraman) wherein it is inter-alia held that ‘when there is such a
mandatory direction prohibiting the Court to pass any eviction order against that person who
comes squarely under Section 10(4) of the Act, the finding on other issues regarding the bona
fides must be construed as ab initio void’.
10. In 1969 (2) S.C.J. at page 123 the Hon’ble Supreme Court has observed that ‘it is clear
that before a Court can be held to have jurisdiction to decide a particular matter it must not only
have jurisdiction to try the suit brought but must also have the authority to pass the orders sought
for. It is not sufficient that it has some jurisdiction in relation to the subject-matter of the suit. It’s
jurisdiction must include the power to hear and decide the question at issue, the authority to hear
and decide the particular controversy that has arisen between the parties.’
11. In AIR 1971 SC 442 (Gangappa Gurupadappa Gugwad v. Rachawwa) it is held as
follows:
“It is open to a Court not to decide all the issues which may arise on the pleadings before
it if it finds that the plaint on the face of it is barred by any law. If, however, final
decision in any matter at issue between the parties is based by a Court on its decisions on
more than one point, each of which by itself would be sufficient for the ultimate decision,
the decision on each of these points operates as res judicata between the parties.”
12. In 1971 (I) MLJ page 488 (Sri Rajagopal Transports (P) Ltd., Tiruchirapalli v. The
Presiding Officer, Labour Court, Madurai and others) it is held thus:
“In industrial disputes, there is a specific interdict on tribunals to entertain and adjudicate
upon disputes, to be cautious in cases where the question of jurisdiction is raised. If once
such a tribunal comes to the conclusion that it has no jurisdiction to entertain and a
 fortiori to adjudicate upon the subject before it, then the ban becomes operative and it has
no further right to deal with the subject-matter. If however it considers further its finding
can be treated as an equation of non est. The want of jurisdiction in matters tried by the
quasi-judicial or judicial tribunals, is one which goes to the core of the matter and if its
absence is unchallenged, then there is no foundation for such tribunals to proceed further,
hear parties and record findings on the so called merits of the case.”
13. The learned Appellate Authority viz., Sub Judge, Poonamallee was of the view that the
protection under Section 10(4) of the Act which was available to the civil revision
petitioner/tenant, when he was employed as Senior Officer in Tamil Nadu Milk Cooperative
Producers Federation Limited, notified for the Government as an essential service was not
available to him when he was transferred from Chennai to Madurai and in that view ordered
eviction of the revision petitioner/ tenant and allowed the rent control appeal filed by the
landlord.
14. During the pendency of civil revision petition before this Court, the civil revision
petitioner/tenant is said to have retired, as informed by the learned counsel for the
petitioner/tenant, a subsequent development of which this Court can certainly take note of in the
eye of law.
15. In view of the fact that there is a prohibition under Section 10(4)(i) of the Tamil Nadu
Buildings (Lease and Rent Control) Act, 1960, the finding on the point in regard to bona fide
requirement of the landlord by the learned Rent Controller in R.C.O.P.No.29 of 1999 dated
03.08.2002 should be construed as ab initio void and in view of the subsequent development
during the pendency of civil revision petition that the civil revision petitioner/tenant has retired
from service, this Court in the interest of justice, remits the matter back to the learned Rent
Controller, Ambattur (District Munsif, Ambattur) to go into the issue of bona fide requirement of
the respondent/landlord/petitioner in respect of the residential building for his own occupation
and deal with the matter de novo and decide the R.C.O.P.No.29 of 1999, after giving due
opportunity to both parties to adduce oral and documentary evidence in the manner known to
law and in that view, the civil revision petition is allowed. Resultantly, the order of the learned
Rent Controller in R.C.O.P.No.29 of 1999 dated 3.8.2002 and the order passed by the learned
Appellate Authority in R.C.A.No.7 of 2002 dated 11.12.2003 are set aside.
16. Since the rent control proceedings is of the year 1999, the learned Rent Controller is
directed to dispose of the same within a period of four months from the date of receipt of a copy
of this order. Having regard to the facts and circumstances of this case, the parties are directed to
bear their own costs. Consequently, connected miscellaneous petition is closed.
Petition allowed.

[2008 (1) T.N.C.J. 498 (Mad)]

MADRAS HIGH COURT
BEFORE:
G. RAJASURIA, J.
THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE
COMPANY LTD., DIVISIONAL OFFICE, TIRUNELVELI ...Appellant
Versus
MURUGAN AND ANOTHER ...Respondents
[C.M.A (MD) No. 1538 of 2007, decided on 2 January, 2008]
nd

(A) Motor Vehicles Act, 1988—Section 173—Compensation—Award of Rs. 2,00,000/-

—Sustainability of—Permanent disability of 20%—Compensation comes to Rs. 40,000/- —
Rs. 20,000/- awarded towards pain and sufferings—Rs. 4,500/- towards nutritious food—Rs.
1,000/- towards transport expenses—Injured a fruit vendor—For three months injured
might not have been able to perform his work as fruit vendor—Rs. 15,000/- awarded
towards loss of income during treatment period compensation modified to Rs. 80,500/- —
Interest awarded @ 7.5% p.a. (Paras 3, 9 to 11)
(B) Motor Vehicles Act, 1988—Section 173—Award of damages—Should itemise
the award under each of the head.
(Para 7)
Case law.—2006 (4) CTC 433; 2005 (2) TAC 297 (SC); 2006 (1) TAC 1 (SC)—relied
upon.
Counsel.—Mr. S. Ramachandran, for the appellant; Mr. K. Samidurai, for the 1 st
respondent.
JUDGMENT
G. RAJASURIA, J.—This appeal is focussed as against the judgment and decree dated
22.12.2005, passed in M.C.O.P.No.419 of 2004, on the file of the Motor Accidents Claims
Tribunal, Principal Sub-Court, Tenkasi.
2. Heard both sides.
3. The challenge in this civil miscellaneous appeal is relating to the quantum of
compensation awarded by the Tribunal, vide judgment dated 22.12.2005, to a tune of
Rs.2,00,000/-(Rupees Two Lakhs only) on the following sub-heads:
(i) For Loss of Earning Capacity - Rs.1,30,000.00
(ii) For Transport Expenses - Rs. 500.00
(iii) For Nutritious Food - Rs. 4,500.00
(iv) For Pain and Sufferings - Rs. 13,000.00
(v) For Permanent Disability - Rs. 12,000.00
(vi) For Permanent Disability - Rs. 40,000.00
Total - Rs. 2,00,000.00
4. The nitty gritty, the gist and kernel of the grievances of the appellant as found set out in
the grounds of appeal could be portrayed thus:
The Tribunal without any rhyme or reason simply awarded compensation under the
caption loss of earning capacity a huge sum of Rs.1,30,000/-, even though the claimants sustained
only 20% permanent disability. The compensation amounts awarded under other sub-heads are
also not tenable.
5. During trial, on the side of the claimants P.W.1 and P.W.2 were examined and Exs.P.1
to 9 were marked and there was no oral or documentary evidence adduced on the side of the
respondents.
6. Point for consideration is as to whether the compensation awarded is just and proper?
7. Point: The learned counsel for the appellant would draw the attention of this Court to
the fact that the Tribunal awarded a huge sum of Rs.1,30,000/- under the caption loss of earning
capacity, in addition to the compensation awarded under the caption, permanent disability. At this
juncture I would like to recollect the Full Bench decision of this Court reported in Cholan
Roadways Corporation Ltd. v. Ahmed Thambi reported in 2006(4) CTC 433. An excerpt from it
would run thus:
“19. In order to avoid any future confusion and to bring more clarity and transparency
in the award of damages, it is necessary that the Tribunal, while awarding
 damages, should itemise the award under each of the head namely, pecuniary
losses and non-pecuniary losses. In the non-pecuniary losses the Tribunal shall
consider: (a) pain and suffering, (b) loss of amenity, (c) loss of expectation of
life, hardship, mental stress, etc. (d) loss of prospect of marriage and under
the head pecuniary losses, the Tribunal shall consider loss of earning
capacity and loss of future earnings as one component apart from medical and
other expenses and loss of earning, if any from the date of accident till the date of
trial. When loss of earning capacity is compensated as also the non-
pecuniary losses under (a) to (d), permanent disability need not be
separately itemised.” (emphasis supplied)
8. In a case of injury, towards future loss of income separately no amount need be
awarded. However, loss of income during the treatment period and convalescent period could be
awarded. Further more the Tribunal awarded a compensation of Rs.12,000/- and another sum
of Rs.40,000/- for the one and the same sub-head permanent disability, which in my opinion are
not tenable. As such it requires interference. The Tribunal, it is emphasised should not have
resorted to awarding a sum of Rs.12,000/-, Rs.40,000/- and Rs.1,30,000/- relating to the one and
the same grounds i.e., permanent disability. However, taking into consideration the fact that the
deceased sustained injury at the age of 33, awarding at the rate of Rs.2,000/- for each percent of
permanent disability would meet the ends of justice. If accordingly worked out for 20%
permanent disability the compensation comes to Rs.40,000/- (Rupees Forty Thousand only).
9. Towards pain and sufferings the Tribunal awarded only a sum of Rs.13,000/-, which
according to the learned counsel for the claimant could be enhanced to Rs.20,000/- (Rupees
Twenty Thousand only). Considering the nature of the disability the prayer could be accepted.
Towards nutritious food the Tribunal awarded a sum of Rs.4,500/- which could be
confirmed. Towards Transport expenses a sum of Rs.500/- was awarded by the Tribunal which
could be enhanced to Rs.1,000/- (Rupees One Thousand only). For three months the injured
might not have been able to perform his work as fruit vendor. Hence, considering his nature of
the job a sum of Rs.15,000/- (Rupees Fifteen Thousand only) could rightly be awarded towards
loss of income during the treatment period and convalescent period. As such the
compensation awarded is modified as under:
(i) For Permanent Disability - Rs. 40,000.00
(ii) For Transport Expenses - Rs. 1,000.00
(iii) For Nutritious Food - Rs. 4,500.00
(iv) For Pain and Sufferings - Rs. 20,000.00
(v) For loss of income during
the treatment period and
convalescent period - Rs. 15,000.00
Total - Rs. 80,500.00

10. The learned counsel for the appellants would convincingly argue that the interest
awarded was 9%, but it should only be 7.5% in commensurate with the decisions of the Hon’ble
Apex Court in Tamil Nadu State Transport Corporation Ltd. v. S. Rajapriya and others
reported in 2005(2)TAC 297 (SC) and in New India Assurance Co. Ltd. v. Charlie and another
reported in 2006(1)TAC 1 (SC). No contrary argument is forthcoming from the side of the
claimant so as to disagree with the arguments of the learned counsel for the appellant. Hence, the
interest awarded is reduced to 7.5% p.a. instead of 9% p.a.
 11. In the result, this appeal is partly allowed and the compensation awarded by the
Tribunal is reduced from Rs.2,00,000/-(Rupees Two Lakhs only) to Rs.80,500/- (Rupees Eighty
Thousand and five Hundred only). The rate of the interest awarded by the Tribunal at 9% p.a. is
reduced to 7.5% p.a. In other aspects the award shall hold good. No costs.
Appeal partly allowed.

[2008 (1) T.N.C.J. 501 (Mad)]

MADRAS HIGH COURT
BEFORE:
A.C. ARUMUGAPERUMAL ADITYAN, J.
C. JOTHIRLINGAM AND OTHERS ...Petitioners
Versus
S.R. JAYARAMAN AND ANOTHER ...Respondents
[C.R.P. (NPD) No. 1399 of 2006 and M.P. Nos. 1 and 2 of 2006, decided on 8th January, 2008]
Civil Procedure Code, 1908—Order VII, Rule 11 (B)—Tamil Nadu Court Fees and
Suit Valuation Act, 1955—Sections 25 (d) and 40—Cancellation of sale deed—Suit for—
Sale deed said to have been executed by power of attorney agent, after cancellation of power
for a sum of Rs. 30,00,000/- —Plaintiff have to pay the court-fee under Section 40 of the Act
—Direction to reject plaint on failure to pay the required court-fee—Sustainability of
—Court below ought to have returned the plaint to the plaintiffs for proper representation
before the appropriate forum after paying the court-fee under Section 40 of the Act—Order
modified—Plaint ordered to be returned for re-presentation before the appropriate forum
after paying the necessary court-fee—Time for representation granted of two months.
(Paras 3, 5 and 6)
Case law.—2005 (5) CTC 190-relied upon.
Counsel.—Mr. K. Doraisami, Senior Advocate, for M/s. Muthumani Doraisami, for the
petitioners; Mr. D. Shivakumaran, Advocate, for the respondents.
JUDGMENT
A.C. ARUMUGAPERUMAL ADITYAN, J.—The order passed in I.A.No.1981 of 2005 in
O.S.No.1138 of 2005 on the file of the First Additional District Munsif, Salem is under
challenge before this Court in this revision petition. The said application was filed under Order
VII, Rule 11(B), CPC to reject the plaint in limine as not maintainable since the suit is under
valued. After contest, the learned trial Judge has held that the court-fee paid under Section 25(d)
of the Tamil Nadu Court-fees and Suit Valuation Act, 1955 (hereinafter referred to as “the said
Act”) is not correct and the court-fee ought to have been paid under Section 40 of the said Act
since the value of the subject-matter of the suit is Rs.30,00,000/-.
2. Mr.K.Doraisami, the learned senior counsel appearing for the revision petitioners would
contend that the plaintiffs have filed the suit on the ground that the impugned sale deed executed
by their power of attorney agent one year after the cancellation of the power dated 24.7.2004 is
not valid under law and that only for cancellation of the said sale deed , they had filed a suit ,
paying the court-fee under Section 25(d) of the said Act. Section 25(d) of the said Act reads as
follows:
 “In a suit for a declaratory decree or order, whether with or without consequential relief
not falling under Section 26—
(a) ..........
(b) . . . . . . . . ..
(c) ..........
(d) In other cases, whether the subject-matter of the suit is capable of valuation or
not, fee shall be computed on the amount at which the relief sought is valued in
the plaint or on (rupees one thousand) whichever is higher.”
On the other hand, Section 40 of the said Act says that—
“In a suit for cancellation of a decree for money or other property having a money value,
or other document which purports or operates to create, declare, assign, limit or
extinguish, whether in present or in future, any right, title or interest in money, movable
or immovable property, fee shall be computed on the value of the subject-matter of the
suit, and such value shall be deemed to be—If the whole decree or other document is
sought to be cancelled, the amount or value of the property for which the decree was
passed or other document was executed; If a part of the decree or other document is
sought to be cancelled, such part of the amount or value of the property.
(2) If the decree or other document is such that the liability under it cannot be split
up and the relief claimed relates only to a particular item of property belonging to
the plaintiff or to the plaintiff’s share in any such property, fee shall be computed
on the value of such property or share or on the amount of the decree , whichever
is less.
Explanation.—A suit to set aside an award shall be deemed to be a suit to set aside a
decree within the meaning of this section.
Sub-section (2) and Explanation are new. Admittedly, the plaintiffs have filed a suit for
cancellation of sale deed relating to the plaint schedule property which was sold to a third
party for a sum of Rs.30,00,000/-.”
3. Under such circumstances, I am of the view that the plaintiffs have to pay the court-fee
under Section 40 of the said Act since the plaintiffs have sought for cancellation of a document
viz., sale deed said to have been executed by their power of attorney agent , after the cancellation
of the power for a sum of Rs.30,00,000/-.
4. Mr.D.Shivakumaran, the learned counsel appearing for the respondents relying on a
decision reported in Chellakannu v. Kolanji, 2005(5) CTC 190, would contend that in a case of
similar facts, this Court has held at paragraph 15 as follows:
“The allegation on the plaint in substance amounts to cancellation of the document.
Though the prayer is couched in the form of seeking declaration that the document is not
valid and not binding, the relief in substance indirectly amounts to seeking for
cancellation of the sale deed. Learned District Munsif is right in ordering payment of
court-fee under Section 40 of the Act.”
The above decision in all four corners will be applicable to the present facts of the case
too.
5. The learned trial Judge, after an elaborate discussion on the question of payment of
court-fee has come to a correct conclusion that the plaintiffs ought to have paid the court-fee
under Section 40 of the said Act and directed the plaintiffs to pay the court-fee on the value of
Rs.30,00,000/- for the plaint schedule property and to pay the court-fee under Section 40 of the
said Act , giving two months time with a condition that the failure to comply with the
conditional order, the plaint shall be rejected. The learned trial Judge, after coming to the
conclusion that the court-fee paid under Section 25(d) of the said Act is in correct, ought to have
returned the plaint to the plaintiffs for proper representation before the appropriate forum after
paying the court-fee under Section 40 of the said Act.
6. In fine, the civil revision petition is allowed with the following modification:
The plaint is ordered to be returned to the plaintiffs for re-presentation before the
appropriate forum, after paying necessary court-fee for the suit value of Rs.30,00,000/- under
Section 40 of the said Act. Time for re-presentation before the appropriate forum two months
from this date. The learned Court below has to return the plaint to the plaintiffs within one week
from the date of receipt of a copy of this order. No costs. Consequently, connected
M.P.Nos.1 and 2 of 2006 are closed.
Petition allowed with modification.

[2008 (1) T.N.C.J. 504 (Mad)]

MADRAS HIGH COURT
BEFORE:
A.C. ARUMUGAPERUMAL ADITYAN, J.
M/S. T.T.G. INDUSTRIES LTD. REP. BY ITS DIRECTOR ...Petitioner
Versus
S.P. PADMAVATHY AND OTHERS ...Respondents
[C.R.P. (NPD) No. 3697 of 2007, decided on 3 January, 2008]
rd

Tamil Nadu Buildings (Lease and Rent Control) Act, 1960—Sections 10 (2) (ii) (a)
and 25—Eviction—On proof of subletting—Appeal—Dismissal of—Findings of Rent
Controller confirmed—Legality of—No material on record to show that the findings of the
Courts below are perverse in nature or unsupported by evidence to warrant any
interference—Revision petition dismissed at admission stage—One month’s time granted
for vacating the premises. (Paras 8 and 9)
Case law.—AIR 1990 SC 1208; AIR 2007 SC 1103; 1975 TNLJ 53; 1991 MLJ 156; 2001
(3) CTC 618; 1999 (2) LW 505—distingueshed; 1958 MLJ 7—referred.
Counsel.—Mr. B. Kumar, Senior Cousnel, for Mr. M. Aravind Subramanian, for the
petitioner; Mr. R. Thiagarajan, Senior Counsel, for Mr. B. Kaalathinathan, for the respondents 1
to 3.
JUDGMENT
A.C. ARUMUGAPERUMAL ADITYAN, J.—This revision has been preferred against the
judgment in RCA.No.487 of 2005 on the file of the Rent Control Appellate Authority (VIII
Judge, Small Causes Court, Chennai), which had arisen out of the order in RCOP.No.1517 of
2002 on the file of the XIII Judge, Small Causes Court, Chennai. The Tenant/R1 is the revision
petitioner herein.
2. RCOP.No.1517 of 2002 was filed under Section 10(2)(ii)(a) of the Tamil Nadu Building
(Lease and Rent Control) Act on the ground that the tenant/R1 had sublet a portion of the petition
schedule premisses bearing Door No.34, College Road, Nungambakkam, Chennai, to the 2nd
respondent. Both the respondents have filed their counter before the Rent Controller denying the
sub-tenancy.
3. Before the Rent Controller the 2nd petitioner has examined himself as P.W.1 and
Ex.P.1 to Ex.P.16 were marked on the side of the petitioners. On the side of the respondent
R.W.1-Manokaran, one of the Directors of R1 and one Mr.Ramesh-R.W.2 were examined and
Ex.R.1 to Ex.R.6 were marked. Besides the above said witnesses one Selvam was examined as
C.W.1 and Ex.C.1 to Ex.C.4 were marked.
4. After going through the oral and documentary evidence, the learned Rent Controller has
come to a conclusion that the petitioners/landlords have proved the subletting of the petition
scheduled premisses and accordingly allowed the petition and gave two months time to the tenant
to vacate and handover vacant possession to the landlord. Aggrieved by the findings of the
learned Rent Controller, the tenant preferred an appeal in RCA.No.487 of 2005 before the VIII
Judge, Small Causes Court, Chennai, (Rent Control Appellate Authority). After giving due
deliberation to the submissions made by the learned counsel for the appellant as well as the
learned counsel for the respondents, and finding no material to interfere with the conclusion
arrived at by the learned Rent Controller, the learned Rent Control Appellate Authority has
dismissed RCA.No.487 of 2005 thereby confirming the findings of the learned Rent Controller
giving a month’s time to the tenant to vacate and hand over vacant possession to the landlords.
Aggrieved by the findings of the learned Rent Control Appellate Authority in RCA.No.487 of
2005 the present revision has been preferred by the tenant.
5. Before admission notice was ordered to the respondents, for whom the learned senior
counsel Mr. R. Thiagarajan has appeared. Heard the learned senior counsel Mr. B. Kumar
appearing for the revision petitioner, who would contend that on the ground that R.W.2
Ramesh was found in one of the portions of the petition scheduled building, the landlords have
preferred the RCOP on the ground that R1 had sublet a portion of the petition schedule building
without their permission. The learned senior counsel would focus the attention of this Court to the
deposition of R.W.2-Ramesh before the Rent Controller as to the effect that he is a director of
TTG Consolidated Private Limited, which is a sister concern of R1, the tenant, and the office
management was managed by one Lyla, his assistant. He would go to the extent of denying
that R2 the alleged sub-tenant is in occupation of a portion of the petition scheduled building.
To prove that R.W.2 Ramesh was in occupation of a portion of the petition scheduled building,
the petitioners/ landlords (Respondents herein) have filed Ex.P.6 & Ex.P.7 Photos along with
negatives to show that R.W.2 Ramesh was in occupation of a portion of the petition scheduled
building.
6. The learned senior counsel Mr. B. Kumar relying on AIR 1990 SC 1208 (M/s. Deli
Stationers and Printers v. Rajendra Kumar) would contend that mere presence of Ramesh
(R.W.2) in a portion of the petition scheduled building will not amount to sub-letting of the
premisses to R2. For this proposition of law, the learned senior counsel Mr. B. Kumar would rely
on the following observation found in the above said ratio decidendi:—
“Sub-letting means transfer of an exclusive right to enjoy the property in favour of
the third party and the said right must be in lieu of payment of some compensation or
rent. Parting of the legal possession means possession with the right to include and also a
right to exclude others. Mere occupation is not sufficient to infer either sub-tenancy or
parting with possession. See Gopal Saran v. Satya Narayana, AIR 1989 SC 1141.”
The facts of the above cited case is that:
“the appellant is the tenant of the premisses consisting of three rooms, a kitchen and a
toilet. The respondent/landlord filed the suit for eviction of the appellant on the ground
of personal necessity and sub-letting of the premises without his consent. It was in
evidence that the tenant was in possession of the leased out property. But one
Mahendra Singh, who was utilising a portion marked as K1 to K4 in the plaint.”
But that is not the case herein. Even in the affidavit to the RCOP at paragraphs 5 and 6 the
landlords have in clear terms stated that the 1st respondent - tenant had sublet a portion of the
petition scheduled premises to the 2nd respondent and has also received a monthly rent of
Rs.27,000/- from R2 and that the 1st respondent had committed wilful default of payment of
monthly rent of Rs.27,000/- to the petitioners/landlords for the period from 1.4.1994 to
28.02.2002. Further there is absolutely no pleading in the counter filed either by the first
respondent or by the second respondent to the effect that R.W.2 Ramesh is one of the partners of
R1 or R4, or alleged sister concern viz. TTG Consolidated Private Limited.
7. The learned senior counsel Mr.R.Thiagarajan relying on 1958 MLJ 7 (Pir Sidik
Mahomed Shah v. Musammat Saran, since deceased, and another), would contend that no
amount of evidence can be let in without a proper pleading. The ratio decidendi in the above said
decision runs as follows:—
“Held that the lower appellate Court rightly found that no amount of evidence could be
looked into upon a plea which was never put forward in the written statement”
On the basis of evidence the learned Rent Control Appellate Authority in its judgment
at para 17 has also dealt with extensively this point and has come to a definite conclusion that R2-
M/s Sterling dynamics Pvt. Limited is in occupation of a portion of the petition schedule
premisses in the capacity of unauthorized sub-tenant for monitory consideration under R1. It
is settled law that while exercising revisional jurisdiction unless it is proved that the findings of
the Courts below, in concurrent findings, is perverse in nature or unsupported by evidence, this
Court cannot interfere with the findings.
8. The learned senior counsel Mr. B. Kumar relied on AIR 2007 SC 1103 (G.L.Vijain v.
K.Shankar), and contended that this Court can exercise its inherent jurisdiction in all
appropriate cases particularly while exercising the revision jurisdiction however in effect and
substance is an appellate jurisdiction. I am of the view that in the revision on hand there is
absolute no material placed before this Court to show that the findings of the Courts below are
perverse in nature or unsupported by evidence to warrant any interference from this Court. The
facts in the other decisions relied on by the learned senior counsel Mr. B. Kumar in 1975
TNLNJ 53, 1991 MLJ 156, 2001(3) CTC 618 and 1999(2) LW 505, will not be applicable to
the present facts of the case. Under such circumstances, I do not find any reason to admit this
civil revision petition.
9. In fine, the civil revision petition is dismissed before admission. Time for vacating and
handing over the vacant possession is one month from this date. No costs. Connected
miscellaneous petition is closed.
Petition dismissed.

[2008 (1) T.N.C.J. 507 (Mad)]

MADRAS HIGH COURT
BEFORE:
M. VENUGOPAL, J.
M/S. FASHION SUITING AND SHIRTINGS, COIMBATORE ...Petitioner
Versus
A. KRISHNAMURTHY ...Respondent
[C.R.P. (NPD) No. 409 of 2004 and C.M.P. No. 3488 of 2004, decided on 5 January, 2008]
th

(A) Civil Procedure Code, 1908—Section 115 and Order XXXVII, Rule 3—Revision
—Against order refusing leave to defend—Maintainability of—Order partakes the
form of judgment—And only a regular and substantive appeal will lie against such
order. (Para 16)
 (B) Civil Procedure Code, 1908—Section 115 (Amended in 1999)—Scope of—A
revision can no longer be filed against order refusing leave to defend—If allowed to stand—
Would result in failure of justice or cause irreparable injury. (Para 15)
Case law.—2003 AIHC 154; AIR 2004 Delhi 219; AIR 2003 SC 3044; 2003 (6) SCC 659
—relied upon; 2004 (3) CTC 321;—referred.
Counsel.—M/s. Rajeni Ramadoss, for M/s. K. Rajasekaran, for the petitioner; Mr. A.
Babu, for the respondent.
Important point
A revision can no longer be filed against an order refusing leave to defend as it partakes
form of judgment, thereby making it vulnerable to assault only through substantive and regular
appeal.
JUDGMENT
M. VENUGOPAL, J.—The civil revision petitioner is the tenant in O.S.No.944 of 2003 on
the file of XV Assistant Judge, City Civil Court, Chennai. The civil revision petitioner has filed
an I.A.No.19569 of 2003 before the trial Court as applicant under Order XXXVII, Rule 3, C.P.C.
praying for the grant of leave to defend the suit.
2. The respondent/plaintiff has filed a counter stating that the application filed under
Order XXXVII, Rule 3, C.P.C. is neither maintainable in law nor on facts and that the
applicant is liable to pay the suit claim and that the application is bereft of materials and filed
with a view to protract proceedings and prayed for dismissal of the said application.
3. The learned XV Assistant Judge, City Civil Court, Chennai has passed an order on
07.01.2004 in I.A.No.19569 of 2003 holding that the applicant/defendant has no triable issues
and dismissed the said application without costs. In effect the applicant/defendant was found to
be not eligible to claim unconditional leave to defend the suit.
4. The learned counsel for the revision petitioner contends that the trial Court ought to
have considered that there are valid defences and arguable points against the fallacious claim
made in the suit and that the leave to defend application ought to have been allowed by the Court
below and that the trial Court has failed to exercise the discretion in proper perspective and
therefore, prayed for setting aside the order passed in I.A.No.19569 of 2003 dated 7.1.2004.
5. It is the specific case of the revision petitioner/defendant that the revision
petitioner/defendant admittedly is carrying on business at Coimbatore and from Coimbatore, the
orders are placed and that the respondent/plaintiff caused supply at the business premises in
Coimbatore and that the cause of action arose only at Coimbatore and as such the suit cannot be
filed in Chennai.
6. The two main pleas advanced by the revision petitioner/defendant are: (i) Lack of
Jurisdiction (ii) No such liability as averred in the plaint.
7. The contention of the respondent/plaintiff is that the respondent/plaintiff is situated at
Chennai and most of the transaction took place in Chennai and as such not withstanding the fact
that the revision petitioner/defendant is carrying on business at Coimbatore, where only the cause
of action arose partly, that will not fetter it from prosecuting proceedings before the Chennai
Court and that the parties have also agreed to have jurisdiction at Chennai, as seen from the
invoices with lorry receipts.
8. The learned counsel for the revision petitioner submits that the defence set up by the
revision petitioner is not illusory and in support of his contention he cited the decision 2004 (3)
CTC 321 (K.Vasantha Devei and another v. Mahesh Kumar Rathi) wherein it is held as follows:
 “Code of Civil Procedure, 1908, Order XXXVII, Rule 3(2)—Leave to defend—
Principles governing—Suit filed for recovery of sum against husband and Wife—
Husband pleaded that he had paid interest up to June 1996 and thereafter issued cheque
on 12.11.1996 for specified amount in full and final settlement of claim—Suit was filed
on 26.11.1999—Plea of limitation and also full and final settlement of dues constituted
triable issues—Ratio laid down in Mechalec Engineers and Manufacturers v. Basic
Equipment Corporation, AIR 1977 SC 577 followed and leave granted”.
9. It is represented that the entire payment was made to the representative of plaintiff
and the Collection Agent is said to have played a key role.
10. Admittedly, I.A.No.19569 of 2003 under Order XXXVII, Rule 3, C.P.C. was filed
before the trial Court on 09.10.2003.
11. In this connection, it is pertinent to refer to the decision 2003 AIHC 154 ( Rajabhau
Mahadeorao Rahate v. Dinkar Shantaram Ingole), on the interpretation of Section 115, C.P.C. as
amended in 1999, wherein it is observed as follows:
“(i) The provisions of Section 115 as amended with effect from 1st July, 2002 are
applicable from that date to all proceedings pending in High Court under Section 115
of the Civil P.C.
(ii) There is no right in a litigant to move an application under Section 115 of the Civil
P.C. for exercise of the jurisdiction mentioned therein.
(iii) That it being not a right, there is no question of it being saved by recourse to
provisions of Section 6 of the General Clauses Act, 1897.
(iv) The provisions of Section 32(2)(i) of the Amendment Act of 1999 do not either by
direct legislation or by necessary implication save any such proceedings from
being affected by the amendment with effect from 01.07.2002.
(v) As a consequence of the above, all revision application, whether pending as on 1st
July, 2002 or filed thereafter, will have to be dealt with strictly in accordance with the
provisions of Section 115 of the Civil P.C. with effect from 1st July, 2002.
(vi) As a further consequence thereof, no revision application against an interlocutory
order will be entertainable even if the order is made prior to 1st July, 2002 as moving
High Court under Section 115 is held not to be a right.”
12. In AIR 2004 Delhi 219 (V.S.Saini and Another v. D.C.M.Ltd.), it is held as follows:
“(A) Civil P.C. (5 of 1908), Order XXXVII, Rule 3(6) Section 96—Summary suit—
Refusal to grant leave—Order whether appealable—Rule 3(6) specifically
stipulates that if leave to defend suit is refused plaintiff shall be entitled to
judgment—Thus interlocutory order refusing leave to defend partakes form of
judgment, thereby making it vulnerable to assault only through substantive
and regular appeal—Thus defendant can avail second opportunity to present
its defence by filing an appeal.”
13. In AIR 2003 SC 3044 (Surya Dev Rai v. Ram Chander Rai), the Hon’ble Supreme
Court has removed all possible doubts by posing the question—”is an aggrieved person
completely deprived of the remedy of judicial review if he has lost at the hands of the original
Court and the Appellate Court, though a case of gross failure of justice having been occasioned
can be made out?” and this was answered in the following paragraphs (at page 3055 of AIR):
“In Shiv Shakti Co-op. Housing Society, Nagpur v. M/s. Swaraj Developers, (2003) 4
Scale 241: AIR 2003 SC 2434, another two Judges Bench of this Court dealt with Section
115 of the CPC. The Court at the end of its judgment noted the submission of the learned
 counsel for a party that even if the revisional applications are held to be not maintainable,
there should not be a bar on a challenge being made under Article 227 of the Constitution
for which an opportunity was prayed to be allowed. The Court observed, - “if any
remedy is available to a party, no liberty is necessary to be granted for availing the
same”.
14. As a matter of fact, in (2003) 6 SCC 659 (Shiv Sakthi Co-op. Housing Society, Nagpur
v. Swaraj Developers) it is observed that “the amendments are procedural in character and are,
therefore, to be applied to all proceedings that have to be decided”. To put it differently, the
amendments have retrospective applicability in the considered opinion of this Court.
15. In view of the amendments made to Section 115 of C.P.C., a revision can no longer be
filed on the basis that the order, if allowed to stand, would result in failure of justice or cause
irreparable injury.
16. In that view of the matter, without going into the merits and demerits of the case, this
Court opines that the revision is not ex facie maintainable and this Court is of the considered
opinion that the interlocutory order refusing leave to defend partakes the form of judgment and
only a regular and substantive appeal will lie against the interlocutory order passed in
I.A.No.19569 of 2003 dated 7.1.2004 and if so aggrieved the revision petitioner/
defendant/applicant necessarily will have to pay the proper court-fee in appeal by filing the same
and in that view, the civil revision petition is dismissed. Considering the facts and circumstances
of the case, the parties are directed to bear their own costs. Consequently, connected
miscellaneous petition is also dismissed.
Petition dismissed.

[2008 (1) T.N.C.J. 511 (Mad)]

MADRAS HIGH COURT
BEFORE:
A.C. ARUMUGAPERUMAL ADITYAN, J.
T.G. BALASUNDARAM ...Petitioner
Versus
JOTHIBAI ...Respondent
[C.R.P. (NPD) No. 1239 of 2005, decided on 2nd January, 2008]
(A) Registration Act, 1908—Sections 17 and 49—Scope of—Unregistered lease deed
—Can be received in evidence for collateral purposes—Expression “collateral”
explained.
(Para 6)
(B) House and rents—Jural relationship between persons—Unregistered lease deed
can be relied upon—Incidentally Rent Controller can go into question of title for the
purpose of establishing whether the landlord-tenant relationship has been proved or
not—Concurrent finding of two Courts below regarding existence of jural relationship of
landlord-tenant—Do not suffer from any perverseness—No interference warranted—
Order of eviction on the ground of denial of title upheld.
(Paras 10, 11 and 12)
Case law.—1974 (1) MLJ 473; AIR 1953 Bom 50; AIR 2002 SC 1061; 2006 (4) CTC 517
—relied upon; AIR 1958 SC 199—distinguished.
 Counsel.—Mr. S.M. Loganathan, for the petitioner; Mr. S.D.N. Vimalanathan, for the
respondent.
Important point
There is no bar under the provisions of the Tamil Nadu Buildings (Lease and Rent
Control) Act, 1960 as amended in 1973 for the Rent Controller to prima facie decide title of
landlord and to decide whether the denial of title is bona fide or not.
JUDGMENT
A.C. ARUMUGAPERUMAL ADITYAN, J.—The tenant in R.C.O.P.No.28 of 1993 on the file
of the learned Rent Controller, Kancheepuram, who had lost his defence both before the learned
Rent Controller as well as before the learned Rent Control Appellate Authority in R.C.A.No.2 of
2004, is the revision petitioner herein. R.C.O.P.No.28 of 1993 was filed by the revision
petitioner’s own sister Jothibai Ammal as a landlord in respect of the petition schedule property
for eviction on the ground of denial of title, wilful default and owners’ occupation. The petition
was resisted by the respondent/tenant, the revision petitioner herein by way of counter alleging
that there was no landlord-tenant relationship existed between the petitioner and the
respondent.
2. Before the Trial Court, P.Ws.1 to 4 were examined. Exs.A.1 to A.14 were marked on the
side of the petitioner/landlord. D.W.1 was examined and Exs.B.1 to B.27 were marked
on the side of the respondent/tenant.
3. After giving due consideration to both oral and documentary evidence, the learned Rent
Controller, Kancheepuram, has come to a conclusion that the petitioner/landlord is entitled for
an order of eviction on the ground of denial of title and allowed the petition by giving two months
time for the tenant to vacate and hand over the vacant possession to the landlord.
Aggrieved by the findings of the learned Rent Controller, the tenant preferred an appeal in
R.C.A.No.2 of 2004 before the learned Rent Control Appellate Authority/Subordinate Judge,
Kancheepuram, who after due deliberation to the learned counsel for the appellant as well as the
learned counsel for the respondent has held that there is no materials to interfere with the findings
of the learned Rent Controller, and accordingly dismissed the appeal thereby confirming the order
of the learned Rent Controller in R.C.O.P.No.28 of 1993, against which, the tenant has preferred
this revision.
4. Heard Mr. S.M. Loganathan, the learned counsel appearing for the revision petitioner
and Mr. S.D.N. Vimalanathan, the learned counsel appearing for the respondent and
considered their respective submissions.
5. The revision has been preferred against a concurrent finding of the Court below in a rent
control proceedings relying on Ex.A.3, Will. The landlord, the sister of the revision petitioner
herein for the tenant, who claimed that the petition schedule property has been executed in her
behalf by her mother and that both her father and her brother/the revision petitioner herein
were occupying the petition schedule premises under Ex.A.4-rental agreement dated 06.01.1992.
The learned counsel Thiru. S.M. Loganathan, appearing for the revision petitioner would
contend that both the Courts below have erroneously come to a conclusion that the revision
petitioner is the tenant on the basis of Ex.A.4, dated 06.01.1992, an unregistered lease agreement
for 18 months which is hit by Section 17 of the Registration Act, 1908. Under Section 17(d) of
the Registration Act, 1908, leases of immovable property from year to year, or for any term
exceeding one year, or reserving a yearly rent is compulsorily registrable. Relying on the above
provision of law, the learned counsel for the revision petitioner would contend that since Ex.A.4,
lease agreement is for 18 months and is not a registered document is non-est under the eye of law.
The effect of non-registration of documents required to be registered is enumerated under
Section 49 of the Registration Act, 1908, which is as follows:—
 “No document required by Section 17 [or by any provision of the Transfer of Property
Act, 1882 (IV of 1882) to be registered shall]—
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring
such power, unless it has been registered:
Provided that an unregistered document affecting immovable property and required by
this Act or the Transfer of Property Act, 1882 (IV of 1882), to be registered may be
received as evidence of a contract in a suit for specific performance under Chapter II of
the Specific Relief Act, 1877 (I of 1877), or as evidence of part-performance of a
contract for the purposes of Section 53-A of the Transfer of Property Act, 1882 (IV of
1882), or as evidence of any collateral transaction not required to be effected by
registered instrument.”
So as per the provision of Section 49 of the Registration Act, 1908, a document, which is
required to be registered under Section 17 of the Registration Act, 1908, can be received in
evidence for collateral purposes.
6. The learned counsel for the revision petitioner relied on a decision of this Court
reported in 1974 (I) MLJ 473 (C.S. Kumaraswami Goundar v. Aravagiri Goundar and another),
would contend that Ex.A.4, an unregistered lease deed in this case, cannot be looked into even for
the collateral purpose. The relevant observation in the above cited decision at page 419 runs as
follows:—
“Therefore, a collateral transaction within the meaning of the proviso to Section 49 of
the Act means a transaction other than the transaction affecting immovable property, but
which is in some way connected with it. In Ramlaxmi v. Bank of Baroda, A.I.R.1953
Bom. Page 50. The Bombay High Court pointed out:
“The expression ‘collateral’ transaction is used not in the sense of an ancillary transaction
to a principal transaction or a subsidiary transaction to a main transaction. The root
meaning of the word ‘collateral’ is running together or running on parallel lines. The
transaction as recorded would be a particular or specific transaction. But it would be
possible to read in that transaction what may be called the purpose of the transaction and
what may be called a collateral purpose, the fulfilment of that collateral purpose
would bring into existence a collateral transaction, a transaction which may be said to
be a part and parcel of the transaction but none the less a transaction which runs
together with or on parallel lines with the same.”
7. At this juncture, the facts of the said case cited is also relevant. The plaintiff in
O.S.No.59 of 1962 on the file of the Court of the Subordinate Judge, Erode, is the appellant
before this Court. The appellant and one Nallaswami Goundan were brothers, being the sons of
one Sengoda Goundar. There was a partition entered into between the appellant and Nallaswami
Goundan in respect of all the joint family properties on 24th November, 1924 under Ex.B-1-
partition deed. The said deed of partition was effected with the help of mediators and after the
partition, the sharers took the possession of their respective shares allotted to them in the said
partition deed. There was a provision contained in the said deed of partition as to the effect
that, if any of the parties went back on the partition arrangement, he would have to pay a sum of
Rs.5,000/- to the other. In 1932 Nallaswami Goundan died and the first defendant in the suit is
the only son of Nallaswami Goundan. The second defendant in the suit is a subsequent alienee of
survey No.122/B, which is item No.2 in the plaint schedule. O.S.No.59 of 1962 was filed for
partition of the properties originally belonged to the appellant and the deceased Nallaswami
Goundan. According to the appellant, the partition entered into between the parties on 24th
November, 1924 was not intended to be acted upon between the parties and that the agreement
had always been treated as a matter of convenience subject to alteration between them. He also
put forward another contention that a power had been reserved to ask for a repartition of the
properties and that itself was evidence of the fact that no final partition had been effected on 24th
November, 1924.
8. The defendants have filed written statement and issues have been framed. On behalf of
the appellant, it was contended that Ex.B.1-partition deed was not registered, though it require
registration under Section 17 (i) (b) of the Registration Act. For want of registration that
document was not admissible in evidence under Section 49 of the Registration Act and
therefore the appellant was entitled to a decree for partition afresh. The first defendant claimed
that he had prescribed title to the plaint schedule property by way of adverse possession. This
claim of the first defendant was controverted by the learned counsel appearing for the appellant in
that case that mere adverse possession is not enough, since the parties being the co-owners, there
must be a specific plea of ouster, which has not been established in the said case. It was further
contended on behalf of the appellant that Ex.B.1 cannot be admitted in evidence even for the
collateral purpose of finding out the character of the possession of the properties allotted to the
shares of Nallaswami Goundan under Ex.B.1 in the hands of Nallaswami Goundan and after his
death in the hands of the first defendant. Only under such circumstances, it has been held
in that suit that the appellant cannot take shelter under proviso to Section 49 of the Registration
Act.
9. The facts of the above said case will not be applicable to the present facts of the case
because, the revision petitioner herein has admitted in Ex.A.4 that his tenant is the respondent
herein viz., Jothibai Ammal. The concurrent finding of the Courts below is that there was a
landlord-tenant relationship existed between the petitioner/Jothibai and the
respondent/T.G.Balasundaram under Ex.A.4.
10. I am of the view that for the purpose of finding whether there was any jural
relationship between the petitioner and the respondent, Ex.A.4 can be relied on. Further, it is
pertinent to note that as per the order passed by this Court in C.R.P.No.1396 of 2002, Ex.A.4 was
ordered to be received in evidence. So, the contentions of the learned counsel appearing for the
revision petitioner that Ex.A.4 cannot be looked into, even for the collateral purpose, under
Section 49 of the Registration Act, since it is not been registered under Section 17 of the
Registration Act, 1908 cannot hold any water. Even though the title cannot be gone into by the
Rent Control Court, I am of the view that incidentally, the learned Rent Controller can go into
question of title for the purpose of establishing whether the landlord-tenant relationship has been
proved or not? The petitioner in the R.C.O.P. to show that she is the landlord of the petition
schedule building had filed Ex.A.3 Will dated 22.08.1990 said to have been executed by her
mother and has also adduced evidence to prove the Will as required under law. While exercising
the powers of revision, this Court need not go into the evidence adduced in R.C.O.P. proceedings
unless, it is proved that the findings of the Courts below are perverse in nature and against
material evidence, this Court cannot interfere with the concurrent findings of the Court below.
The dictum in AIR 2002 SC 1061 (J.J.Lal Pvt. Ltd. and others, Appellants v. M.R.Murali and
another, respondents) and the findings in AIR 1958 SC 199 (V 45 C 34) (Mst. Kirpal Kuar,
Appellant v. Bachan Singh and others, Respondents) differ from the facts of the present case. In
AIR 2002 Supreme Court 1061, under Section 10(2)(vii) of the Tamil Nadu Buildings (Lease
and Rent Control) Act, the eviction ordered on the ground of denial of title. In a case where, the
landlord allottee from Municipal Corporation filed the suit against the tenant on the ground of
default in payment of rent, in which, the tenant had threatened to evict him, while he was willing
to pay rent to Corporation, held would not amount to “not bona fide” denial of title.
11. In AIR 1958 SC 199, the admissibility of document under proviso to Section 49
was considered and held that when there was an agreement between the parties cannot be
admitted in evidence to show the nature of possession of one of the parties subsequent to its date.
The party being in possession before the date of the document to admit it in evidence to show the
nature of her possession subsequent to it would be to treat it as operating to destroy the nature of
the previous possession and to convert what had started as adverse possession into a permissive
possession and, therefore, to give effect to the agreement contained in it which admittedly cannot
be done for want of registration. Admittedly, in the case on hands, there is no claim of an adverse
possession by the tenant. On the other hand, under Ex.A.4, he has admitted that Jothibai, the
respondent herein is his landlord. The learned counsel for the respondent relying on 2006(4) CTC
517 (K.Bhuvanesh, Petitioner v. Rakman Bibi and others, respondents) had contended that there
is no bar under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960
as amended by Act 23/1973 for the Rent Controller to prima facie decide title of landlord to
decide whether the denial of title is bona fide or not. The exact observation in the above said ratio
decidendi runs as follows:—
“It is true that the Rent Controller in the present case has gone into the question of title,
but he has clearly observed in his order that the ownership of the petition building should
not be gone into by him, still he could go into the question of prima facie title of the
petition building. Therefore, what was decided by the Rent Controller is only a prima
facie title of the landlord and not the real title of the petition property which can be gone
into by the Trial Court. Therefore, on this ground, the revision petition cannot be
adjudicated in favour of the tenant. That apart, the question of bona fide or otherwise of
the denial of title by the revision petitioner was gone into by both the authorities and a
finding was rendered that the denial is not bona fide in the light of Exs.P-4 and P.5.
Therefore once it is established that the denial of title is not bona fide, then the tenant has
to face the rent control proceedings but much to his detriment.”
Under such circumstances, I do not find any perverseness in the findings of the learned
Rent Control Appellate Authority in R.C.A.No.2 of 2004 to warrant any interference from this
Court.
12. In fine, C.R.P.No.1239 of 2005 is dismissed confirming the findings of the learned
Rent Control Appellate Authority in R.C.A.No.2 of 2004 on the file of the Rent Control
Appellate Authority, Kancheepuram. Taking into consideration the close relationship between the
parties, there is no order as to costs. At this juncture, the learned counsel for the revision
petitioner Thiru. S.M. Loganathan would represent that the revision petitioner’s son is an
Advocate and is practising as a lawyer of this Court and having his office in the petition schedule
building and that he may be given time till 31.05.2008. For which course, there is no objection by
the other side. The learned counsel for the revision petitioner undertakes to file an affidavit
to that effect within a week.
Petition dismissed.

[2008 (1) T.N.C.J. 518 (Mad)]

MADRAS HIGH COURT
BEFORE:
G. RAJASURIA, J.
THE SPECIAL TAHSILDAR LAND ACQUISITION
AIR FORCE STATION, THANJAVUR ...Appellant
Versus
SUYAMPRAKASAM AND ANOTHER ...Respondents
[A.S. (MD) No. 163 of 2007 and M.P. (MD) No. 2 of 2007, decided on 5 January, 2008]
th
 Land Acquisition Act, 1894—Sections 4(1), 18, and 54— Compensation—
Assessment of—Sale deed almost two years anterior to Section 4 (1) notifications—
Could be relied on—Fast developing area—Acquisition made for the purpose of setting up
the Air Force Station, having the entire land as the one block—Potentiality for the acquired
land from the claimants is there—Market value to be arrived at not only taking into
consideration of the potentiality of the land but also the purpose for which the said lands
were acquired—Sale deed of year 1989—Increase in the value of land would have been
more during the year 1991 from that of the year 1989—Value for smaller extent in the year
1989—But for choosing the yardstick in the year 1991 for the larger extent, no lesser
amount need be taken in view of increase in value of smaller extent—Market value of land
per cent comes to Rs. 1,744/- for assessing the larger extent in the year 1991 during which
Section 4 (1) notifications were published—Deduction of 53% towards development
charges made from the value of the land arrived at Rs. 1,744/- —Net value of land comes to
Rs. 819.68 per cent (in round to Rs. 820) —Claimant is entitled to get solatium as well as
interest on the additional amount—Appeal disposed of.
(Paras 13, 20, 24 to 28)
Case law.—1994 (4) SCC 180; 1996 (9) SCC 640; 2006 (2) LW 102; Supreme Cour
Judgments on Land Acquisition (1994-2004) Vol. II P. 2053—referred.
Counsel.—Mr. So. Paramasivam, Additional Government Pleader, for the appellant; Mr.
M. Palanismay, Mr. M.K. Ramakrishnan, for the respondents 1 and 2.
Important point
For deduction of development charges, the nature of the development, condition and
nature of land, the land required to be set apart under the building rules for roads, sewerage,
electricity, parks, water etc. and all other relevant circumstances involved are to be considered.
JUDGMENT
G. RAJASURIA, J.—This appeal is focussed as against the judgment and decree passed in
L.A.O.P.No.212 of 1996 dated 03.04.2007 by the learned Additional District Judge, Fast Track
Court No.I, Thanjavur.
2. The facts giving rise to the filing of this appeal would run thus:
The publication of the notification under Section 4(1) of the Land Acquisition Act was
made as under:
Sl.No. A.S.Nos. R.C.No. Date of 4(1) Award No. Land Value
Notification Dated Fixed by the
Sub-Judge,
Thanjavur.
(Per Cent)
1. 163/07 9/94 25.12.1991 53/91- Rs.1,080/-
23.09.1994
for acquiring a vast tract of a land for setting up Air Force Station at Thanjavur.
Consequently, necessary steps were taken as per law for acquiring the lands and ultimately, the
relevant awards emerged.
3. Being aggrieved by and dissatisfied with, such passing of award, quantifying the
compensation reference under Section 18 of the Land Acquisition Act, has been made to the
learned Additional District Judge, Fast Track Court No.I, Thanjavur. Consequently, the learned
Additional District Judge assessed the value of the land and ultimately, enhanced the
compensation to the tune of Rs.1,080/- (Rupees One Thousand and Eighty only) per cent in
L.A.O.P.No.212 of 1996 from the one assessed by the Land Acquisition Officer.
4. Consequently, the Land Acquisition Officer preferred this appeal before this Court
and this Court vide judgments dated 23.03.2001, in A.S.Nos.519 and 520 of 1999 and in
A.S.Nos.416 to 418 of 1999, confirmed the judgment of the learned Sub-Judge in assessing
the value of the land at Rs.1,176/- per cent ultimately. The Government preferred Special Leave
Petitions vide Nos.24578-24579 of 2004 before the Honourable Apex Court and in that the
Honourable Apex Court passed order as under:
“ ... Mr.N.N.Goswamy, learned senior counsel, appearing on behalf of the petitioner
submitted before us that though he is not in a position to challenge the statements
contained in the impugned judgments of the High Court, which make it apparent that
the judgments and orders were passed on concession or by consent, there are large
number of other cases of acquisition where the quantum awarded by the Reference Court
has been challenged before the High Court. Those matters are still pending before the
High Court and if the same principle of valuation is applied, the petitioner will suffer
great injustice. His contention is that the lands in respect of which cases are still pending
before the High Court are situate far away from the land in respect of which sale deed
had been produced as Annexure A-9, as an exemplar as well as the lands subject-matter
of the impugned judgments. The law is fairly well settled that the Court must value the
land acquired having regard to its value applying the statutory guidelines. Lands lying
far away from the lands in respect of which sale deed is produced by way of evidence,
cannot have the same value. The value of such lands may be more or less depending
upon their potentiality and location and having regard to other relevant considerations
which the Court has to keep in mind under the provisions of the Land Acquisition Act.
We appreciate the submission urged on behalf of the petitioner and, therefore, we clarify
that in all matters still pending before the High Court, it will be open to the petitioner to
challenge the Award of the Reference Court of such grounds as it may be advised,
and without anything more, the impugned judgments in these special leave petitions will
not be treated as a precedent.”
5. This appeal pending before this Court was not the subject- matter of the special leave
petition before the Honourable Apex Court. The Government by way of precaution made
representation before the Honourable Apex Court and got direction as aforesaid that what the
High Court decided on the earlier cited judgments need not be followed as precedents for
deciding the present appeal.
6. The learned counsel for the respondent No.1/land owner would submit that the present
appeal cannot be treated as a separate group from that of the appeals decided as per the aforesaid
cited judgments of the High Court and that there should not be any discrimination among the
equals.
7. The perusal of the judgment of the Honourable Apex Court would demonstrate that it is
not a mere decision of the Honourable Apex Court on facts concerning a different type of case,
but specifically in relation to existing appeals now under consideration before this Court, such
directions were issued to the effect that these appeals shall be dealt with independently de hors
the judgments passed by this Court earlier as cited supra. Hence, in such a case, this Court has to
make an independent approach in these appeals.
8. Accordingly, heard both sides.
9. The Land Acquisition Officer preferred appeal on the following main grounds:
 The lower Court committed an error in fixing the market value on Sq. ft basis, even
though, the lands acquired are situated at Panchayat limit. The land value should not be assessed
on cent basis also. The lower Court relied on sample sale deeds relating to smaller extent of lands
sold for exorbitant price. There is nothing to show that the house plots sold under the sale deeds
were relied on by the claimants. Those sale deeds were not proved by examining the vendor and
the vendee concerning those sale deeds. The Reference Court has not properly made deductions
towards development charges. The charge has not followed the belt system also. A mere reading
of grounds of appeal would clearly demonstrate that the Land Acquisition Officer never adverted
to the fact that the property is situated in a developing area.
10. At this juncture, I would like to highlight that the grounds of appeal are one sided as
they are oblivious to the existing facts and situations which prevailed at the time of the land
acquisition in this case and the fact that the large mass of land was acquired en block for setting
up Air Force Station.
11. The gist and kernel of the earlier approach by this Court was to the effect that the Court
took into account Ex.C.14, the sale deed dated 01.03.1991 executed by one Balusamy in favour of
Dhanalakshmi, in R.S.No.168/8 tranferring an extent of 2,400 sq.ft as a plot for a sum of
Rs.10,800/- (Rupees Ten Thousand and Eight Hundred only). In other words as per Ex.C.14, the
land to an extent of one cent was valued at Rs.1,960/- and out of that 40% was deducted towards
development charges and the land value was arrived at Rs.1,176/- per cent and consequently, the
awards were passed with usual statutory entitlements.
12. The topo sketch relating to the entire land concerned marked in different colours, was
relied on by both sides to highlight the location and other features. In fact, Ex.C.14, which was
taken as a basic document for assessing the value and passing the award, is situated in
S.No.168 just some what nearer to the Thanjavur - Pudukkottai State Public Highway. The said
Ex.C.14, is obviously dated 01.03.1991 whereas in the same year, Section 4(1) notifications were
made as aforesaid. As such, there is some force in the contention of the learned Government
Pleader that Ex.C.14 might have been emerged for such smaller extent purely for the purpose of
getting higher compensation.
13. Furthermore, I am of the view that Ex.C.14 is referred to a smaller extent referring as
plot, but the area intended to be acquired is a vast piece of agricultural land for Air Force Station
at Thanjavur. Hence, in such a case, the normal rule is that when a sale deed referring to a similar
extent of plot is taken as sample one with regard to the vast agricultural land, some reduction
should be made from that sample value. Since there is weighty objections put forth on the
Government side as against Ex.C.14, I am of the considered opinion that Ex.C.13, the sale deed
dated 13.03.1989 which emerged almost two years anterior to such Section 4(1) notifications,
could be relied on. Keeping these factors in mind, on scrutiny of records, it is found that among
the documents already marked, Ex.C.13 dated 13.03.1989 appears to be a document which
would be beyond controversy for the reason that it emerged almost two years anterior to Section
4(1) notifications. Hence, on the side of the Government, there cannot be any objection to it as
though it is a cooked up document for getting higher compensation.
14. Ex.C.13, relates to the sale of a plot of 2,400 sq.feet for a sum of Rs.9,600/- so to say,
at the rate of Rs.4/- per sq.ft in the S.No.168/1 which forms part of the vast land acquired and
accordingly, if worked out as per Ex.C.13, the value per cent of land would come to Rs.1,744/-
(Rupees One Thousand Seven Hundred and Forty-four only). As such two years had elapsed after
the emergence of Ex.C.13 and then only, Section 4(1) notifications emerged. It is therefore
clear that during the year 1991, the value of the land in all probabilities might have got escalated.
A mere perusal of the sketch and the relevant available records speaks that it is a fast developing
area. Considering the purpose of acquisition for setting up the Air Force Station, having the entire
land as the one block, there need not be any discrimination relating to the various portions of the
same one block of land. It is also evident and obvious that the land acquired had the potentiality
of becoming plots as the sample sale deeds filed on the side of the claimants itself would
demonstrate the same. The fact also remains that Tamil University is already existing in the
vicinity and the National Highway namely Thanjavur – Pudukkottai road is cutting across the
huge mass of land acquired by the Government under these land acquisition proceedings.
15. The Sub-Court in its common judgment relied on the earlier judgment of this Court
dated 23.03.2001, in A.S.Nos.519 and 520 of 1999, in fixing the value at Rs.1,17,000/- per acre
in connection with the appeals filed by some land owners relating to the same area which
happened to be the subject matter of one and the same set of notification.
16. The Sub-Court relied on Ex.C.3, the copy of the judgment of this Court dated
23.03.2001. De hors that, independently the Sub-Court also gave its finding that the land
acquired is in a developing area as the State Highway is running across the said land; Tamil
University is situated very near to it and the Tamil Nadu Paddy Research Institute are all
situated. This Court in the judgment dated 23.03.2001, in A.S.Nos.519 and 520 of 1999, at
paragraph No.7 held as under:
“7. It is evident from a perusal of the records that Tamil University, Paddy
Processing Research Centre, Thanjavur Textiles, Tantex, Kamala Subramaniam
Matriculation School and the present Air Force Station, apart from other
residential areas are very nearer to the acquired lands which situate in the main
road referred to above. The said facts would lead to conclude that there is
potentiality for the acquired lands from the claimants, by the Government of
Tamil Nadu. The market value has to be arrived at not only taking into
consideration of the potentiality of the land but also the purpose for which the
said lands were acquired. As already pointed out, the piece of land sold under
Ex.A.9 dated 01.03.1991 had fetched Rs.4.50 per square foot.”
17. The Land Acquisition Officer also in the counter filed before the Sub Court would
state that the aforesaid Institutions along with Matriculation Schools and Industrial Workers
Quarters are all situated about 2 - 3 Kms away from the land acquired and that the land acquired
is situated 5 Kms from the Thanjavur Municipal area. Even assuming for argument sake, what
the Land Acquisition Officer has stated is true, a distinction is sought to be made by the Land
Acquisition Officer relating to the land acquired from the developed area cannot be treated
as adverse factors. The land acquired is a vast tract of land and in such a case, the developed
areas which are allegedly 2 - 3 Kms away from the land acquired, cannot be taken as adverse
factors. Thanjavur Municipality is situated with 5 Kms and that should be taken as a plus point in
favour of the appellant and not an adverse one.
18. The Sub Court as well as the High Court clearly and categorically pointed out that the
sample deeds relied on by the Land Acquisition Officer for assessing the market value are having
no proximity to the land acquired and that the fixation of Rs.220/- per cent was totally
without any basis. The alleged thirty sample sale deeds which emerged within three years
anterior to Section 4(1) notifications, as per the findings of the Sub Court as well as the High
Court were not reflecting the true market value. Those thirty sale deeds as per the earlier findings
were ignored. Even during arguments before me, on the Government side, it has not been shown
as to how the value arrived at by the Land Acquisition Officer was in order and that too ignoring
the sale deeds relied on by the claimants. As such, the increase in the value of land would have
been more during the year 1991 from that of the year 1989 to which Ex.C.13 relates. Robust
common sense warrants to take the value for smaller extent in the year 1989, as to yardstick for
assessing larger extent in the year 1991 in the same vicinity. If in the year 1989, the yardstick
must be lesser than what is contemplated in Ex.C.13 for assessing larger extent, but for
choosing the yardstick in the year 1991, for larger extent, no lesser amount need be taken in view
of increase in value of smaller extent. As such, accordingly if worked out, per cent it comes to the
same value of Rs.1,744/- for assessing the larger extent in the year 1991 during which Section
4(1) notifications were published.
19. Both sides are not in a position to point out that there are other sale deeds in the same
vicinity which would reflect the true market value of the land before the publication of Section
4(1) notifications. Even though there is larger extent of land situated to the east of the said Public
Highway, clinching documents are not available and documents relating to S.No.168 situated to
the west side of the road alone are available and among those documents, Ex.C.13 is chosen,
whereas earlier Ex.C.14, was chosen by this Court while delivering judgments as aforesaid and
that turned out to be no more precedent in view of the direction of the Honourable Apex Court as
set out supra.
20. This Court is fully aware of the fact that normally sample sale deed should relate to a
land in the same vicinity and near the place where the lands are acquired. Here, all the aforesaid
notifications were published relating to one block of land for setting up Air Force Station and
in such a case, taking into account the purposes of acquisition, i.e., only one purpose, one of the
same type of valuation can be taken up and there need not be any discrimination. In fact, the land
in S.No.168 forms part of the aforesaid Section 4(1) notifications. Hence, in such a big mass of
land, when the area covered under the sample sale deed Ex.C.13 has also been acquired as part of
the larger area, then there cannot be any plausible objection.
21. In this connection, the learned counsel for the claimants would cite the decision of the
Honourable Apex Court in K.Periasami v. Sub Tehsildar (Land Acquisition) reported in (1994) 4
SCC 180 and develop his argument to the effect that there should not be any discrimination in
awarding the compensation between two Benches of the same High Court. Such an argument
cannot be countenanced in view of the order of the Honourable Apex Court in Special Leave
Petition Nos.24578-24579 of 2004, referred to supra.
22. The learned counsel for the claimants could cite the decision of the Honourable Apex
Court in Smt. Lila Ghosh (dead) through LRs. v. The State of West Bengal reported in Supreme
Court Judgments on Land Acquisition (1994-2004) Volume II page No.2053. An excerpt from it,
would run thus:
“5. We are of the opinion that this was not a fit case for application of the
belting method. The acquisition was of land on which a film studio stood. The
acquisition was for the purposes of the film studio. It was a compact block of
land which was acquired for a specific purposes. The land was not acquired for
development into small plots where the value of plots near the road would have a
higher value whilst those further away from may have a compact blocks is
acquired the belting method would not be the correct method.”
As such, it is clear that the aforesaid observations made by the Honourable Apex Court is
squarely applicable to this case also.
23. The catena of decisions relating to the compensation in land acquisition cases would
mandate that the sales relating to small pieces of lands, if they are genuine and reliable and
comparable to the land acquired, the same could be relied on. In this regard, the decision of
the Honourable Apex Court in Basavva v. Spl. Land Acquisition Officer reported in (1996) 9
SCC 640, could rightly be relied on as cited by the learned counsel for the claimants. An excerpt
from it, would run thus:
“3. Having given our consideration, the question that arises for consideration is
whether the High Court has committed any error of law in fixing the
compensation at the rate of Rs.56,000/- per acre? On the principle of deductions
in the determination of the compensation, this Court in K.Vasundara Devi v.
 Revenue Divisional Officer, LAO, (1995) 5 SCC 426, has considered the entire
case law and has held that the Court, in the first instance, has to consider
whether sales relating to smaller pieces of lands are genuine and reliable and
whether they are in respect of comparable lands. In the event the Court finds that
such sales are genuine and reliable and the lands have comparable features,
sufficient deduction should be made to arrive at the just and fair market value
of large tracts of land. The time-lag for real development and the waiting period
for development are also relevant consideration for determination of just and
adequate compensation.Each case depends upon its own facts. For deduction of
development charges, the nature of the development, conditions and nature of
land, the land required to be set apart under the building rules for roads,
sewerage, electricity, parks, water etc. and all other relevant circumstances
involved are to be considered. In this case, the facts recorded by the High Court
are that Ex.P.10 sale deed is dependable sale but it is in respect of a small plot of
land situated at a distance of more than 1 Km. It is also found that the land in the
area is not developed and there is no development in those lands though the lands
are capable of being used for non-agricultural purpose. On those findings the
High Court held that the market value under Ex.P.10 cannot form the sole basis
but keeping in view the developments the lands are capable of fetching
compensation at the rate of Rs.56,000 after deducting 65%. For developmental
charges, that deduction between 33-1/3 to 53% was held to be valid by this Court
in several judgments. In Vasundara Devi case 63% deduction was upheld. In
view of the fact that development of land would have taken years, the High Court
has deducted another 12%. Obviously, the High Court kept in view the fact that
the lands under Ex.P.10 were situated at far-flung places from the lands under
acquisition and since the land takes long time for development it has given
additional deduction of 12%, i.e. 53 + 12% = 65% in determination of the
compensation. On the basis of the rationale referred to above, the principle
adopted by the High Court cannot be said to be illegal. Thus considered, we hold
that there is no justification for interference in the finding recorded by the High
Court or to further increase the compensation.”
24. Relating to the deduction is concerned, previously 40% was deducted towards the
developmental charges. While the Court exercising the power to effect deduction towards
development expenditure, it should take into account the purpose for which the land is being
acquired and it has become a trite proposition of law over which there is no controversy. For
setting up the Air Force Station, the ground should be levelled and the major part of the area
should be cemented and various other amenities should be installed before putting that land into
use as Air Force Station.
25. Hence, in this view of the matter, adhering to the decision of the Honourable Apex
Court in Basavva v. Spl. Land Acquisition Officer reported in (1996) 9 SCC 640, I am of the
considered opinion that 53% should be deducted from the value of the land arrived at Rs.1,744/-
per cent. As such, the following formula emerges:
The value of the
land acquired - Rs.1,744.00 per cent
(-)
53% deduction towards
development charges - Rs. 924.32 per cent
 The net value of the land
for awarding compensation - Rs. 819.68 per cent

26. Accordingly, the net value of the land for awarding compensation after deducting 53%
towards developmental charges, is arrived at Rs.819.68/- per cent which could be rounded to
Rs.820/- per cent (Rupees Eight Hundred and Twenty only). Accordingly, if worked out, the net
value of the land per acre would come to Rs.82,000/- (Rupees Eighty-two Thousand only).
27. The claimant is also entitled to statutory entitlements over which there is no dispute.
For the enhanced amount in the award, the claimant is entitled to get solatium as well as interest
on the additional amount.
28. The learned counsel for the claimant cited the decision of the Division Bench of this
Court in Sub Collector, Padmanabhapuram v. R.S.Raveendran reported in 2006 (2) L.W.102 and
an excerpt from it, would run thus:
“10. It is also relevant to note that Section 53 of the Land Acquisition Act, 1894
makes it clear that the provisions of Code of Civil Procedure, 1908 are
applicable to all proceedings initiated under the said Act (Land Acquisition
Act). In view of the same, it is not in dispute that Order XLI, Rule 33, C.P.C. is
applicable to the land acquisition proceedings. Inasmuch as the appeal is also
continuation of the original proceedings, the said provisions are applicable
to the appeals also and in view of the law laid down by the Apex Court as well as
this Court in Sunder v. Union of India, interest is payable for the solatium
amount, and in order to render substantial justice, we accept the request of the
counsel for respondents/claimants and hold that the solatium amount also carries
interest at the same rate as applicable to the enhanced compensation and
additional amount.”
29. As such, adhering to the aforesaid decision, the claimant is entitled to appropriate
interest on the solatium as well as the additional amount awarded. Accordingly, this appeal is
disposed of. No costs. Consequently, connected Miscellaneous Petitions is closed.
Appeal disposed of.

[2008 (1) T.N.C.J. 528 (Mad) (MB)]

MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE:
G. RAJASURIA, J.
M/S. VIJAY AUTO AGENCY, HERO HONDA
DEALERS REP. THROUGH ITS MANAGING
PARTNER AND MANDATE HOLDER ...Appellant
Versus
SENTHIL ARUMUGAM ...Respondent
[C.M.A. (MD) No. 1525 of 2007 and M.P. (MD) No. 1 of 2007, decided on 2 January, 2008]
nd

Arbitration and Conciliation Act, 1996—Section 9—Civil Procedure Code, 1908—

Order XLIII, Rule 1—Mandatory injunction—Suit for invoking Section 9 of the
said Act—Seeking injunction to restrain the respondent from appointing any other dealer
for Hero Honda vehicles or opening any show room— Application for interim mandatory
injunction—Grant of—Till disposal of suit—Legality of—Plaintiff not a party to the
arbitration agreement—Firm Perumal Motors happened to be a party to the agreement—
Plaintiff nowhere projected himself as partner of firm Perumal Motors—Ar.O.P. No. 83 of
2007 has not been properly instituted—No question arises for grant of interim relief
—Liberty given to firm Perumal Motors to file necessary application under Section 9 of the
Act—Respondent will have right to contest it as per law.
(Paras 6, 8 to 13)
Case law.—AIR 2004 SC 1433;—relied upon.
Counsel.—Mr. S. Meenakashi Sundaram, for the appellant; Mr. Sankara Subramanian,
for the respondent.
Important point
Qualification for invoking Section 9 of the Arbitration and Conciliation Act, 1996 is that
the person should be a party to an arbitration agreement.
JUDGMENT
G. RAJASURIA, J.—This appeal is focussed to get set aside the order dated 01.08.2007,
passed in I.A.No.48 of 2007 in Ar.O.P.No.83 of 2007 on the file of the Principal District Judge,
Tirunelveli.
2. A re’sume’ of facts absolutely necessary and germane for the disposal of this appeal
would run thus:
(i) It appears, one Partnership firm by name Sri Perumal Motors and one M/s.Vijay Auto
Agency, entered into an agreement which also contains an arbitration clause so as to
resolve the disputes between them amicably as per the Arbitration and Conciliation
Act, 1996. Some dispute arose relating to the style of functioning of the said
Partnership firm namely Sri Perumal Motors. Thereupon, M/s.Vijay Auto Agency
cancelled the dealership. Whereupon, one Senthil Arumugam filed Ar.O.P. No.83
of 2007 on the file of the Principal District Judge, Tirunelveli, by invoking Section 9
of the said Act seeking injunction so as to restrain the respondent from appointing
any other dealer for Hero Honda vehicles or opening any show room in Valliyoor
area. The petitioner therein filed I.A.No.48 of 2007 seeking interim mandatory
injunction to supply Hero Honda vehicles pending settlement of dispute in
accordance with the agreement.
(ii) The learned District Judge was pleased to pass order on 01.08.2007, directing the
respondent to supply the vehicles and spares as per the terms of the agreement,
Ex.B.1 dated 26.01.2007 to the petitioner on the petitioner tendering full payment for
the same till the disposal of the said Ar.O.P.No.83 of 2007.
3. Being aggrieved by and dissatisfied with, that order, the present appeal has been filed
mainly on the ground that there was no privity of contract between the petitioner Senthil
Arumugam and M/s.Vijay Auto Agency, but there was privity of contract only between the said
Partnership firm Sri Perumal Motors and M/s.Vijay Auto Agency. Various other grounds also
have been raised.
4. The point for consideration is as to whether the petitioner had locus standi to file
Ar.O.P.No.83 of 2007 and consequently to obtain interim orders?
5. Heard both sides.
6. The learned counsel for the appellant would convincingly and correctly by drawing the
attention of this Court to the agreement itself; develop his argument that a mere perusal of the
agreement would show that the contract was between Sri Perumal Motors on the one side and
M/s.Vijay Auto Agency on the other side; no doubt, Senthil Arumugam signed it on behalf of Sri
Perumal Motors; projecting himself as a partner representing the said Sri Perumal Motors; in
view of the same, the petitioner was not entitled to any relief and even then, the learned
District Judge granted the said mandatory injunction.
7. The learned counsel for the respondent herein namely Senthil Arumugam, would argue
that it was Senthil Arumuguam who actually signed the agreement which was entered into
between Sri Perumal Motors and M/s.Vijay Auto Agency and in such a case, absolutely, there
is no legal flaw on the part of Senthil Arumugam in approaching the Court under Section 9 of the
Act for interim orders. In support of his proposition, he would cite the decision of the Honourable
Apex Court in Firm Ashok Traders v. Gurumukh Das Saluja reported in AIR 2004 SC 1433. An
excerpt from it, would run thus:
“13. ... For the moment suffice it to say that the right conferred by Section 9 cannot
be said to be one arising out of a contract. The qualification which the person
invoking jurisdiction of the Court under Section 9 must possess is of being a
‘party’ to an arbitration agreement. A person not party to an arbitration
agreement cannot enter the Court for protection under Section 9. This has
relevance only to his locus standi as an applicant. This has nothing to do with the
relief which is sought for from the Court or the right which is sought to be
canvassed in support of the relief. The reliefs which the Court may allow to a
party under Clauses (i) and (ii) of Section 9 flow from the power vesting in the
Court exercisable by reference to ‘contemplated’, ‘pending’ or ‘completed’
arbitral proceedings. The Court is conferred with the same power for making the
specified orders as it has for the purpose of and in relation to any proceedings
before it though the venue of the proceedings in relation to which the power
under Section 9 is sought to be exercised is the arbitral Tribunal.”
8. A mere perusal of the aforesaid decision would highlight that even as per it,
Ar.O.P.No.83 of 2007 was not maintainable. The Honourable Apex Court posited the proposition
that the qualifications for invoking Section 9 of the Act is that he should be a party to an
arbitration agreement. Admittedly and unassailably, Sri Perumal Motors happened to be a
party to that arbitration agreement and not Senthil Arumugam in his individual capacity. It is a
trite proposition of law that Senthil Arumugam as an individual is different from Senthil
Arumugam as one of the partners capable of representing Sri Perumal Motors.
9. The learned counsel for the appellant drew the attention of this Court in detail to various
portions of the said Ar.O.P.No.83 of 2007 and argued that nowhere Senthil Arumugam projected
himself as a partner of Sri Perumal Motors, much less as a partner representing Sri Perumal
Motors.
10. I could see considerable force in the submission made by the learned Counsel for the
appellant and accordingly, I hold that Ar.O.P.No.83 of 2007 itself has not been properly instituted
and in such a case, the question of passing any interim order would not arise.
11. At this juncture, the learned counsel for the respondent herein made an extempore
submission that in the event of this Court allowing this appeal, liberty may be given to Sri
Perumal Motors to file properly a fresh petition in the way known to law in order to get necessary
remedies under Section 9 of the Act.
12. The learned counsel for the appellant would submit that in such an event, the appellant
herein may also be given liberty to contest such Ar.O.P on merits.
13. Recording the submissions made on either side, I would like to allow this appeal giving
liberty to Sri Perumal Motors, the Partnership firm to file necessary application under Section 9
of the Act and in such an event, M/s.Vijay Auto Agency will have the right to contest it as per
law. Consequently, connected Miscellaneous Petition is closed. No costs.
Appeal allowed.

[2008 (1) T.N.C.J. 531 (SC)]

SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.
TOWN PLANNING MUNICIPAL COUNCIL ...Petitioner
Versus
RAJAPPA AND ANOTHER ...Respondents
[Civil Appeal No.2836 of 2001, decided on 10 January, 2008]
th

Civil Procedure Code, 1908—Section 100—Second appeal—Scope of—Second appeal

decided without framing substantial question of law—Second appellate Court further
interfered with finding of fact—Held, appeal decided in contravention of provision of
Section 100—Hence, order liable to be dismissed—Remanded for fresh disposal—Appeal
allowed. (Paras 5 and 6)
Case law.—JT 2006 (7) SC 102; 2005 (8) SC 509; JT 2005 (9) SC 171; JT 2004 (6) SC
296; JT 2002 (10) SC 98—relied on.
JUDGMENT
DR. ARIJIT PASAYAT, J.—Challenge in this appeal is to the judgment of the
learned Single Judge of the Karnataka High Court allowing the second appeal filed by the
respondent under Section 100 of the Code of Civil Procedure, 1908 (in short ‘CPC’). The
respondent No.1 had filed a suit in respect of 3 acres 22 guntas of land in Survey No.393/Aa
(Paiki) situated in Yadgir-B, Taluk Yadgir. Plaintiff claimed property to be ancestral property.
2. The defendants resisted the suit contending that the suit land being shown as ‘Sega
Local Fund’ property since 1954, it is the property belonging to the Town Municipal Council,
Vadgir as such it has every right to deal with in accordance with the Municipal Laws and that the
plaintiff cannot prevent lawful action of the defendants by way of such suit. It was further
contended that the plaintiff if not at all in possession of the suit land and that they have issued
notification as required under the Municipal Law to provide sites to houseless persons and the
plaintiff, winning over the village Accountant, got his name entered in the column of cultivator
without any right and, therefore, the suit of the plaintiff is not at all maintainable. With these
contentions, the defendants prayed for dismissal of the suit.
3. The Trial Court framed the issues and came to hold that under Section 284(1) of the
Karnataka Municipalities Act, (in short the ‘Act’) previous notice for the suits is mandatory and
there was no compliance with the said requirement and, therefore, the suit was liable to be
dismissed in limine. It was also pointed out that entry in the Khasra Pahani and R.O.R. right from
1954-55 indicated the suit land as ‘Sega Local Fund’ and the same was not challenged by the
plaintiff or his ancestors.
4. The Trial Court and the First Appellate Court found that there was no merit in the suit
and accordingly the suit was dismissed by the Trial Court and the First Appellate Court upheld it.
The High Court, as noted above, reversed the findings and allowed the second appeal.
5. At the outset it is to be indicated that the Second Appeal was allowed without framing a
question of law which is clearly contrary to the mandate of Section 100. This position has been
highlighted in several decisions. [See Gian Dass v. Panchayat, Village Sunner Kalan & Ors., JT
2006 (7) SC 102, Joseph Severane and Ors. v. Benny Mathew and Ors., JT 2005 (8) SC 509,
Sasikumar and Ors. v. Kunnath Chellappan Nair and Ors., JT 2005 (9) SC 171, Chadat Singh v.
Bahadur Ram and Ors., JT 2004 (6) SC 296) and Kanhaiyalal v. Anupkumar, JT 2002 (10) SC
98].
6. Apart from that it is noted that the judgment of the learned Single Judge is practically
non-reasoned. The High Court in second appeal interfered with the findings of facts.
Therefore, since the judgment is practically non-reasoned, it is not possible to find out as
to what weighed with the High Court to upset the concurrent findings of fact recorded by the
Trial Court and the First Appellate Court. We remit the matter to the High Court for fresh
consideration keeping in view parameters of Section 100, CPC.
7. The appeal is allowed. No costs.
Appeal allowed.

[2008 (1) T.N.C.J. 533 (SC)]

SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.
BRIJENDRA SINGH ...Petitioner
Versus
STATE OF M.P. AND ANOTHER ...Respondents
[Civil Appeal No.7764 of 2001, decided on 11 January, 2008]
th

Hindu Adoption and Maintenance Act, 1956—Section 8—Adoption by a married

Hindu woman—A crippled lady given in marriage but soon separated—Marriage not
consummated— Living separately for a long time practically from date of marriage
—She was not divorced—Adopted appellant as son— Validity of—Held, by living
separately she cannot be said to be a divorcee or widow—She is married in eye of law,
hence, cannot adopt appellant. (Paras 10 and 16)
Case law.—1994 (4) SCC 363; AIR 1963 SC 185; AIR 1954 SC 581; AIR 1933 PC 155;
AIR 1959 SC 504—referred.
JUDGMENT
DR. ARIJIT PASAYAT, J.—The present appeal involves a very simple issue but when the
background facts are considered it projects some highly emotional and sensitive aspects of human
life.
2. Challenge in this appeal is to the judgment of the Madhya Pradesh High Court at
Jabalpur in a Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (in short the
‘C.P.C.’).
3. Background facts sans unnecessary details are as follows:
Sometime in 1948, one Mishri Bai, a crippled lady having practically no legs was given in
marriage to one Padam Singh. The aforesaid marriage appears to have been solemnized because
under the village custom, it was imperative for a virgin girl to get married. Evidence on record
shows that Padam Singh had left Mishri Bai soon after the marriage and since then she was
living with her parents at Village Kolinja. Seeing her plight, her parents had given her a piece of
land measuring 32 acres out of their agricultural holdings for her maintenance. In 1970, Mishri
Bai claims to have adopted appellant Brajendra Singh. Padam Singh died in the year 1974. The
Sub-Divisional Officer, Vidisha served a notice on Mishri Bai under Section 10 of the M.P.
Ceiling on Agricultural Holdings Act, 1960 (in short the ‘Ceiling Act’) indicating that her holding
of agricultural land was more than the prescribed limit. Mishri Bai filed a reply contended that
Brajendra Singh is her adopted son and both of them constituted a Joint family and therefore are
entitled to retain 54 acres of land. On 28.12.1981, the Sub Divisional officer by order dated
27.12.1981 disbelieved the claim of adoption on the ground inter alia that in the entries in
educational institutions adoptive father’s name was not recorded. On 10.1.1982, Mishri Bai filed
Civil Suit No. SA/82 seeking a declaration that Brajendra Singh is her adopted son. On
19.7.1989, she executed a registered Will bequeathing all her properties in favour of Brajendra
Singh. Shortly thereafter, she breathed her last on 8.11.1989. The trial Court by judgment and
order dated 3.9.1993 decreed the suit of Mishri Bai. The same was challenged by the State. The
first appellate Court dismissed the appeal and affirmed the judgment and decree of the trial Court.
It was held concurring with the view of the trial Court that Mishri Bai had taken Brajendra Singh
in adoption and in the Will executed by Mishri Bai the factum of adoption has been
mentioned. Respondents filed Second Appeal No. 482 of 1996 before the High Court. A point
was raised that the adoption was not valid in the absence of the consent of Mishri Bai’s husband.
The High Court allowed the appeal holding that in view of Section 8(c) of Hindu Adoption
and Maintenance Act, 1956 (in short the ‘Act’) stipulated that so far as a female Hindu is
concerned, only those falling within the enumerated categories can adopt a son.
4. The High Court noted that there was a great deal of difference between a female Hindu
who is divorced and who is leading life like a divorced woman. Accordingly the High Court held
that the claimed adoption is not an adoption and had no sanctity in law. The suit filed by
Mishri Bai was to be dismissed.
5. In support of the appeal learned counsel for the appellant submitted that as the
factual position which is almost undisputed goes to show, there was in fact no consummation of
marriage as the parties were living separately for a very long period practically from the date of
marriage. That being so, an inference that Mishri Bai ceased to be a married woman, has been
rightly recorded by the trial Court and the first appellate Court. It was also pointed out that the
question of law framed proceeded on a wrong footing as if the consent of husband was necessary.
There was no such stipulation in law. It is contented that the question as was considered by the
High Court was not specifically dealt with by the trial Court or the first appellate Court. Strong
reliance has been placed on a decision of this Court in Jolly Das (Smt.) alias Moulick v. Tapan
Ranjan Das, 1994(4) SCC 363, to highlight the concept of ‘Sham Marriage’.
6. It was also submitted that the case of invalid adoption was specifically urged and
taken note of by the trial Court. Nevertheless the trial Court analysed the material and evidence
on record and came to the conclusion that Mishri Bai was living like a divorced woman.
7. Learned counsel for the respondents on the other hand submitted that admittedly Mishri
Bai did not fall into any of the enumerated categories contained in Section 8 of the Act and
therefore, she could not have validly taken Brajendra Singh in adoption.
8. It is to be noted that in the suit there was no declaration sought for by Mishri Bai either
to the effect that she was not married or that the marriage was sham or that there was any divorce.
The stand was that Mishri Bai and her husband were living separately for very long period.
Section 8 of the Act reads as follows:
“8. Capacity of a female Hindu to take in adoption.—Any female Hindu—
(a) who is of sound mind,
(b) who is not minor, and
 (c) who is not married, or if married, whose marriage has been dissolved or whose
husband is dead or has completely and finally renounced the world or has ceased
to be a Hindu or has been declared by a Court of competent jurisdiction to be of
unsound mind,
has capacity to take a son or daughter in adoption.”
10. We are concerned in the present case with clause (c) of Section 8. The section brings
about a very important and far reaching change in the law of adoption as used to apply earlier in
case of Hindus. It is now permissible for a female Hindu who is of sound mind and has completed
the age of 18 years to take a son or daughter in adoption to herself in her own right provided that
(a) she is not married; (b) or is a widow; (c) or is a divorcee or after marriage her husband has
finally renounced the world or is ceased to be a Hindu or has been declared to be of unsound
mind by a Court having jurisdiction to pass a declaratory decree to that effect. It follows from
clause (c) of Section 8 that Hindu wife cannot adopt a son or daughter to herself even with the
consent of her husband because the section expressly provides for cases in which she can adopt a
son or daughter to herself during the life time of the husband. She can only make an adoption in
the cases indicated in clause (c). It is important to note that Section 6(1) of the Act requires that
the person who wants to adopt a son or a daughter must have the capacity and also the right to
take in adoption. Section 8 speaks of what is described as ‘capacity’. Section 11 which lays
down the condition for a valid adoption requires that in case of adoption of a son, the mother by
whom the adoption is made must not have a Hindu son or son’s son or grandson by legitimate
blood relationship or by adoption living at the time of adoption. It follows from the language of
Section 8 read with clauses (i) and (ii) of Section 11 that the female Hindu has the capacity and
right to have both adopted son and adopted daughter provided there is compliance of the
requirements and conditions of such adoption laid down in the Act. Any adoption made by a
female Hindu who does not have requisite capacity to take in adoption or the right to take in
adoption is null and void. It is clear that only a female Hindu who is married and whose marriage
has been dissolved i.e., who is a divorcee has the capacity to adopt. Admittedly in the instant case
there is no dissolution of the marriage. All that the evidence led points out is that the husband and
wife were staying separately for a very long period and Mishri Bai was living a life like a
divorced woman. There is conceptual and contextual difference between a divorced woman and
one who is leading life like a divorced woman. Both cannot be equated. Therefore, in law Mishri
Bai was not entitled to the declaration sought for. Here comes the social issue. A lady because of
her physical deformity lived separately from her husband and that too for a very long period right
from the date of marriage. But in the eye of law they continued to be husband and wife because
there was no dissolution of marriage or a divorce in the eye of law. Brajendra Singh was adopted
by Mishri Bai so that he can look after her. There is no dispute that Brajendra Singh was in fact
doing so. There is no dispute that the property given to him by the Will executed by Mishri Bai is
to be retained by him. It is only the other portion of the land originally held by Mishri Bai which
is the bone of contention.
Section 5 provides that adoptions are to be regulated in terms of the provisions contained
in Chapter II. Section 6 deals with the requisites of a valid adoption. Section 11 prohibits
adoption; in case it is of a son, where the adoptive father or mother by whom the adoption is
made has a Hindu son, son’s son, or son’s son’s son, whether by legitimate blood relationship or
by adoption, living at the time of adoption. Prior to the Act under the old Hindu law, Article 3
provided as follows:
“3. (1) A male Hindu, who has attained the age of discretion and is of sound mind,
may adopt a son to himself provided he has no male issue in existence at the date
of the adoption.
 (2) A Hindu who is competent to adopt may authorize either his (i) wife, or (ii)
widow (except in Mithila) to adopt a son to himself.”
11. Therefore, prior to the enactment of the Act also adoption of a son during the lifetime
of a male issue was prohibited and the position continues to be so after the enactment of the Act.
Where a son became an outcast or renounced the Hindu religion, his father became entitled to
adopt another. The position has not changed after the enactment of the Caste Disabilities
Removal Act (21 of 1850), as the outcast son does not retain the religious capacity to perform the
obsequial rites. In case parties are governed by Mitakshara law, additionally adoption can be
made if the natural son is a congenital lunatic or an idiot.
12. The origin of custom of adoption is lost in antiquity. The ancient Hindu law
recognized twelve kinds of sons of whom five were adopted. The five kinds of adopted sons in
early times must have been of very secondary importance, for, on the whole, they were relegated
to an inferior rank in the order of sons. Out of the five kinds of adopted sons, only two survive
today, namely, the dattaka form prevalent throughout India and the kritrima form confined to
Mithila and the adjoining districts. The primary object of adoption was to gratify the means
of the ancestors by annual offerings and, therefore, it was considered necessary that the offerer
should be as much as possible a reflection of a real descendant and had to look as much like a
real son as possible and certainly not be one who would never have been a son. Therefore, the
body of rules was evolved out of a phrase of Saunaka that he must be ‘the reflection of a son’.
The restrictions flowing from this maxim had the effect of eliminating most of the forms of
adoption. (See Hindu Law by S.V. Gupte, 3rd Edn., at pp. 899-900.) The whole law of dattaka
adoption is evolved from two important texts and a metaphor. The texts are of Manu and
Vasistha, and the metaphor that of Saunaka. Manu provided for the identity of an adopted son
with the family into which he was adopted. (See Manu, Chapter IX, pp. 141-42, as translated by
Sir W. Jones.) The object of an adoption is mixed, being religious and secular. According to
Mayne, the recognition of the institution of adoption in the early times had been more due to
secular reasons than to any religious necessity, and the religious motive was only secondary; but
although the secular motive was dominant, the religious motive was undeniable. The religious
motive for adoption never altogether excluded the secular motive. (See Mayne’s Hindu Law
and Usage, 12th Edn., p. 329.)
As held by this Court in V.T.S. Chandrasekhara Mudaliar v. Kulandaivelu Mudaliar, AIR
1963 SC 185, substitution of a son for spiritual reasons is the essence of adoption, and
consequent devolution of property is mere accessory to it; the validity of an adoption has to be
judged by spiritual rather than temporal considerations and devolution of property is only of
secondary importance.
In Hem Singh v. Harnam Singh, AIR 1954 SC 581, it was observed by this Court that
under the Hindu law adoption is primarily a religious act intended to confer spiritual benefit on
the adopter and some of the rituals have, therefore, been held to be mandatory, and compliance
with them regarded as a condition of the validity of the adoption. The first important case on the
question of adoption was decided by the Privy Council in the case of Amarendra Man Singh
Bhramarbar v. Sanatan Singh, AIR 1933 PC 155. The Privy Council said: Among the Hindus, a
peculiar religious significance has attached to the son, through Brahminical influence, although in
its origin the custom of adoption was perhaps purely secular. The texts of the Hindus are
themselves instinct with this doctrine of religious significance. The foundation of the Brahminical
doctrine of adoption is the duty which every Hindu owes to his ancestors to provide for the
continuance of the line and the solemnization of the necessary rites.
With these observations it decided the question before it viz. that of setting the limits to the
exercise of the power of a widow to adopt, having regard to the well-established doctrine as to the
religious efficacy of sonship. In fact, the Privy Council in that case regarded the religious motive
as dominant and the secular motive as only secondary.
15. The object is further amplified by certain observations of this Court. It has been held
that an adoption results in changing the course of succession, depriving wife and daughters of
their rights, and transferring the properties to comparative strangers or more remote relations.
[See: Kishori Lal v. Chaltibai, AIR 1959 SC 504]. Though undeniably in most of the cases,
motive is religious, the secular motive is also dominantly present. We are not concerned
much with this controversy, and as observed by Mayne, it is unsafe to embark upon an enquiry in
each case as to whether the motives for a particular adoption were religious or secular and an
intermediate view is possible that while an adoption may be a proper act, inspired in many cases
by religious motives, Courts are concerned with an adoption, only as the exercise of a legal
right by certain persons. The Privy Council’s decision in Amarendra Man Singh’s case (supra)
has reiterated the well-established doctrine as to the religious efficacy of sonship as the
foundation of adoption. The emphasis has been on the absence of a male issue. An adoption may
either be made by a man himself or by his widow on his behalf with his authority conveyed
therefor. The adoption is to the male and it is obvious that an unmarried woman cannot adopt, for
the purpose of adoption is to ensure spiritual benefit for a man after his death and to his ancestors
by offering of oblations of rice and libations of water to them periodically. A woman having no
spiritual needs to be satisfied, was not allowed to adopt for herself. But in either case it is a
condition precedent for a valid adoption that he should be without any male issue living at
the time of adoption.
16. A married woman cannot adopt at all during the subsistence of the marriage except
when the husband has completely and finally renounced the world or has ceased to be a Hindu
or has been declared by a Court of competent jurisdiction to be of unsound mind. If the husband
is not under such disqualification, the wife cannot adopt even with the consent of the husband
whereas the husband can adopt with the consent of the wife. This is clear from Section 7 of the
Act. Proviso thereof makes it clear that a male Hindu cannot adopt except with the consent of the
wife, unless the wife has completely and finally renounced the world or has ceased to be a Hindu
or has been declared by a Court of competent jurisdiction to be of unsound mind. It is relevant to
note that in the case of a male Hindu the consent of the wife is necessary unless the other
contingency exists. Though Section 8 is almost identical, the consent of the husband is not
provided for. The proviso to Section 7 imposes a restriction in the right of male Hindu to take
in adoption. In this respect the Act radically depicts from the old law where no such bar was laid
down to the exercise of the right of a male Hindu to adopt oneself, unless he dispossess the
requisite capacity. As per the proviso to Section 7 the wife’s consent must be obtained prior to
adoption and cannot be subsequent to the act of adoption. The proviso lays down consent as a
condition precedent to an adoption which is mandatory and adoption without wife’s consent
would be void. Both proviso to Sections 7 and 8(c) refer to certain circumstances which have
effect on the capacity to make an adoption.
17. At this juncture it would be relevant to take note of Jolly Das’s case (supra). The
decision in that case related to an entirely different factual scenario. There was no principle of
law enunciated. That decision was rendered on the peculiar factual background. That decision has
therefore no relevance to the present case.
18. Learned counsel for the appellant submitted that in any event, the land which is
declared to be in excess of the prescribed limit vests in the Government to be allotted to persons
selected by the Government. It was submitted that in view of the peculiar background, the
Government may be directed to consider the appellant’s case for allotment of the land from the
surplus land so that the purpose for which adoption was made and the fact that the appellant
nourished a crippled lady treating her to be his own mother would set a healthy tradition and
example. We express no opinion in that regard. It is for the State Government to take a
decision in the matter in accordance with law. But while dismissing the appeal, we permit the
appellant to be in possession of land for a period of six months by which time the Government
may be moved for an appropriate decision in the matter. We make it clear that by giving
this protection we have not expressed any opinion on the acceptability or otherwise of the
appellant’s request to the State Government to allot the land to him.
19. The appeal is dismissed subject to the aforesaid observations.
Appeal dismissed.

[2008 (1) T.N.C.J. 540 (Mad)]

MADRAS HIGH COURT
BEFORE:
M. VENUGOPAL, J.
NAGARAJAN ...Petitioner
Versus
A.K. JAMBULINGA ...Respondent
[C.R.P. (N.P.D.) No. 739 of 2004, decided on 26 December, 2007]
th

(A) Tamil Nadu Buildings (Lease and Rent Control) Act, 1960—Sections 10 (2)(i) and
10 (3) (a) (iii)—Default in payment of rent—Grant of three months’ time for eviction—
Legality of— Arrears of rent from 1.11.1991 to 20.9.1992—Rental receipts were not issued
for the payment of rents made by tenant—Duty on the tenant to tender the rents—
Irregular payments or lump-sum payments would only show that the tenant has
committed wilful default—There cannot be presumption as to the payment of rent by a
tenant—It is duty of the tenant to prove payment—Even the payment of municipal taxes
dues will not exonerate the tenant from the plea of wilful default—Plea regarding the
direction of landlady to keep the subsequent rents so that she will come and receive the
lump-sum for payment of municipal tax to the site in his occupation, is not acceptable—
Arrears of rent paid after filing of the eviction petition and paying the monthly rents
subsequently to the respondent cannot enure to the benefit of the tenant—Tenant has
committed wilful default in regard to the payment of monthly rent for a period of 10
months—No interference warranted. (Paras 19 to 22)
(B) Words and phrases—“Wilful default”—Meaning of— Conscious default of the
tenant to pay rent without any discernible justification which the Rent Controller can
accept as taking away of element of wilfulness. (Para 12)
Case law.—1994 (1) MLJ 510; 1983 (1) MLJ 52; 1991 (2) LW 203-relied upon; 1973
TLNJ 1; 1984 (1) MLJ 251; 1987 (2) MLJ 50; 1995 (1) MLJ 288; 1996 (2) MLJ 494—referred.
Counsel.—Mrs. Emily Venkatesan, for the petitioner; Mr. V. Chandrasekar, for the
respondent.
Important point
Irregular payments or lump-sum payment would only show that the tenant has committed
wilful default.
JUDGMENT
M. VENUGOPAL, J.—The civil revision petitioner is the respondent/tenant in
R.C.O.P.No.36 of 1993 on the file of the learned Rent Controller, Vellore.
 2. The civil revision petitioner/tenant is the respondent in R.C.A.No.18 of 1999 on the file
of learned Sub-Judge, Vellore.
3. The landlady, deceased Andalammal filed R.C.O.P.No.36 of 1993 on the file of learned
Rent Controller, Vellore under Section 10(2)(i) and 10(3)(a)(iii) under Tamil Nadu Buildings
(Lease and Rent Control) Act, 1960 (Tamil Nadu Act XVIII of 1960). The learned Rent
Controller, Vellore in R.C.O.P.No.36 of 1993 while passing orders on 27.7.1999 has come to the
conclusion that the civil revision petitioner/tenant has not committed wilful default deliberately
and answered the said point in favour of the tenant.
4. Before the learned Appellate Authority viz., the Sub-Judge, Vellore, the deceased
Andalammal preferred R.C.A.No.18 of 1999 as appellant and after her death, her legal heir,
second appellant was impleaded as the appellant.
5. The learned Appellate Authority viz., Sub-Judge, Vellore has allowed the R.C.A.No.18
of 1999 on 26.02.2004 by setting aside the order and decretal order of the learned Rent
Controller, Vellore and allowed the RCOP petition on the ground of wilful default in payment of
rent and dismissed the RCOP petition in other respects and granted three months’ time for
eviction.
6. According to the learned counsel for the civil revision petitioner, the learned Appellate
Authority erred in coming to the conclusion that the civil revision petitioner/tenant committed
default in payment of rent and that the learned Appellate Authority viz., Sub-Judge, Vellore also
failed to notice that the usual practice followed by the landlady was to collect the rents once in a
while and as such, the question of wilful default does not arise.
7. It is the further case of the civil revision petitioner that entire arrears of rent were
deposited soon after the receipt of notice, on the first hearing of the matter and that the landlady
collect rents through her agent once in three months and the agent used to visit according to his
convenience and there was no supine indifference in payment of rents.
8. P.W.1 Thiru. Jambulingam, son of the deceased landlady Tmt. Andalammal in his
evidence has deposed that the civil revision petitioner/tenant was not proper in regard to the
payment of rent and that there is a default in payment of monthly rent from September 1991 till
the issuance of notice Ex.A.1 and Ex.A2 is the Reply Notice and that for 10 months there is
non payment of rent. P.W.1 Thiru. A.K. Jambulingam in his evidence has further stated that the
civil revision petitioner/tenant paid in August, 1993 Rs.6,000/-, being the 20 months rent and the
present month rent was not paid on 10th and that it was paid today.
9. R.W.1 Thiru. Nagarajan (civil revision petitioner/tenant) in his evidence has stated that
he received the Ex.A.1-Notice and in that notice it was stated that 10 months rent is due and that
he gave reply notice and that he was not aware as to when he paid the lump-sum rent.
10. Ex.A.1 is the legal notice dated 22.9.1992 issued on behalf of deceased landlady
Andalammal addressed to the civil revision petitioner/tenant. In the said notice, it is specifically
mentioned that for about 25 years, the civil revision petitioner/tenant is occupying the premises
on an oral agreement, agreeing to pay Rs.350/- per month as rent payable by 10th of every
succeeding English calendar month and that he has committed default in payment of rent for the
past 10 months. In Ex.A.2-Reply Notice dated 01.10.1992 issued on behalf of the revision
petitioner/tenant, it is inter-alia mentioned that the present rent is Rs.300/- per month and not
Rs.350/- as alleged in the notice and that the landlady Andalammal used to come personally
collect the rent as and when she chooses and some times she may send word through her son or
grandson to collect the rent and municipal taxes due and payable for the property was not paid by
the landlady and occupier a notice was issued to the civil revision petitioner/tenant and that the
civil revision petitioner/tenant sent word to the landlady to pay the taxes due to Municipality.
 11. Ex.A.2-Reply Notice dated 01.10.1992 also states that on 03.04.1992 the landlady sent
word through her grand son Velmurugan to pay the rent for the month November, 1991 and
directed the civil revision petitioner/tenant to keep the subsequent rents so that she will come
and receive the same in lump-sum for payment of municipal tax to the site in occupation of the
civil revision petitioner/tenant and other adjoining properties and that the civil revision petitioner
is prepared to pay the rent due and payable from 01.12.1991 till 30.09.1992 in all 10 months rent
Rs.3000/- by way of demand draft etc. Ex.A.3 dated 11.10.1993 is the lawyer’s notice issued by
the deceased Andalammal addressed to the civil revision petitioner/tenant. In this notice, it is
categorically mentioned that the monthly rent is Rs.300/- and the tenancy is agreeing to
English Calendar. Ex.A.4 is the reply notice of Advocate issued on behalf of the civil revision
petitioner/tenant addressed to the deceased landlady’s Advocate.
12. It is to be noted that “wilful default has to be decided on account of the conscious
default of the tenant to pay rent without any discernible justification which the Rent Controller
can accept as taking away the element of wilfulness”. Admittedly, the term ‘wilful default’ is
employed by the statute with a clear purpose.
13. In the decision 1973 TLNJ page 1 between Kesavan v. Vincent Pillai, it is observed
that “however much the tenant has paid the amount subsequently the default committed by him
cannot be cured”.
14. In 1984 (1) MLJ page 251 at special Page 252 (Associated Traders and Engineers
Limited v. Alamelu Ammal), it is held that “the tenant deducted the amount spent for repairs
carried out without consent from landlord amounts to wilful default”.
15. In 1987 (2) MLJ page 50 at special page 54 (Surajmal Sowcar and sons v. Arokia
Mary), it is observed that “the tenant paying ground rent and municipal tax will not enable him to
claim title to the superstructure—Denial not bona-fide and default is wilful”.
16. It is not out of place to point out that in 1995(1) MLJ 288 (Seshachala Chettiar (dead)
and another v. Duraiammal) it is held that “it is not open to the tenant to set off a plea that the
practice was to pay only lump-sum payments. Even if such a practice is there, once a
landlord issues a notice demanding arrears of rent, then such practice would come to an end.
Hence, the tenant not paying for a period of six months held to be wilful”.
17. In 1996 (2) L.W. 494 (G.R.Ragupathy v. Dr.K.Shankar, etc.) it is observed that “in a
petition for eviction under Section 10(2)(i), the tenant raised a plea that the landlord agree to
receive, or was in the habit of receiving lump sum rent, or once in a year. The High Court did not
accept the plea and held that the same was without good faith and that the silence of the landlord
was exploited by the tenant. The conduct of the tenant will be very relevant in such cases”.
18. The arrears of rent is from 01.11.1991 till 20.09.1992. In the instant case on hand,
rental receipts were not issued for the payment of rents made by the civil revision
petitioner/tenant. As a matter of fact, in Ex.A.2 reply notice dated 01.10.1992, it is categorically
stated that “my client is prepared to pay the rents due and payable from 01.12.1991 till
30.09.1992 for 10 months amounting to Rs.3000/- by way of Demand Draft.”
19. The specific stand of the civil revision petitioner/tenant is that municipal taxes due and
payable for the petition mentioned property by the deceased landlady Andalammal was not paid
and that occupier notice was issued to the civil revision petitioner/tenant and that the civil
revision petitioner/tenant sent word to the landlady to pay the due taxes to the municipality and
that on 03.04.1992 the landlady sent word through her grandson Velmurugan to pay the rent for
the month of November, 1991 and directed the civil revision petitioner/tenant to keep the
subsequent rents so that she will come and receive the same in lump-sum for payment of the
municipal tax to the site in occupation of the civil revision petitioner/tenant, etc. The
grandson Velmurugan was not examined as witness in the rent control proceedings.
 20. The Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 visualises a duty cast
on the tenant to tender the rents. In the absence of such a tender, the tenant is squarely held to
have committed wilful default. It is pertinent to mention that irregular payments or lump-sum
payments would only show that the tenant has committed wilful default as per decision 1994 (1)
MLJ page 510 (K.N.Gunalan v. C.Santhalingam).
21. In 1983 (1) MLJ at page 52 special page 53 (Rajeswari v. Vasumai Lalchand), it is
held that “subsequent payment is neither sufficient excuse nor can relieve the tenant from the
charge of wilful default committed prior to filing eviction petition filed under this section”.
As far as the present case is concerned except the ipse dixit of R.W.1 Nagarajan that the grandson
of landlady Andalammal viz., Velmurugan and one Sathiyanarayana have received the 4 months
rent, there is no acceptable and satisfactory evidence on the side of civil revision petitioner/tenant
to indicate that the grandson Velmurugan and another Sathiyanarayana have received the 4
months rent and as such, the plea of the civil revision petitioner/tenant that grandson Velmurugan
used to collect rent on behalf of the landlady deceased Andalammal is not accepted by this
Court. In general, there cannot be any presumption as to the payment of rent by a tenant and it is
the duty of the tenant to prove payment, in the considered opinion of this Court. Even the
payment of municipal taxes due will not exonerate the tenant from the plea of wilful default. In
that view, the plea of the civil revision petitioner/tenant, the landlady deceased Andalammal
directed him to keep the subsequent rents so that she will come and receive the lump sum for
payment of municipal tax to the site in his occupation is not accepted by this Court. Moreover,
the payment of tax voluntarily will not enable the tenant to plead adjustment in the rents and it
constitutes wilful default as per decision 1991(2) L.W. Page 203 at 205 (Mrs. Manoranjitham v.
Mrs. T.G. Gangabai). It cannot be gainsaid that the civil revision petitioner/tenant having paid the
arrears of rent after filing of the RCOP petition and that he was also paying the monthly rents
subsequently to the respondent/petitioner cannot enure to the benefit of the civil revision
petitioner/tenant, in the considered opinion of this Court.
22. In view of the detailed discussions and on careful examination of available materials
on record and in consideration of evidence on record and looking at from any angle, this Court
comes to inescapable conclusion that the civil revision petitioner/tenant has committed wilful
default in the instant case in regard to the payment of monthly rent for a period of 10 months in
question and in that view of the matter, the civil revision petition fails and the same is hereby
dismissed to prevent aberration of justice. The order of the learned Appellate Authority
dated 26.02.2004 made in R.C.A.No.18 of 1999 is confirmed for the reasons subscribed in this
revision. Three months’ time is granted for eviction from the date of receipt of a copy of this
order. Considering the facts and circumstances of the case, the parties are directed to bear their
own costs.
Petition dismissed.

[2008 (1) T.N.C.J. 545 (Mad)]

MADRAS HIGH COURT
BEFORE:
M. VENUGOPAL, J.
VENKATARAMAN @ MURALI @ RAJA AND OTHERS ...Petitioners
Versus
R. VENUGOPAL AND ANOTHER ...Respondents
[C.R.P. (NPD) No. 730 of 2004 and C.M.P. No. 5868 of 2004, decided on 14 December, 2007]
th
 (A) Pondicherry (Extension of Laws) Act, 1968—Section 3—Scope of.
(Para 12)
(B) Civil Procedure Code, 1908—Sections 2 (11), 47 and Order XXI, Rule 35 (1)
and (3)—Execution of French Grosse Copy of the Usufructuary Gift Deed as deemed decree
—By ejecting the persons bound by the decree—Counter filed—Averred that execution
petition is not maintainable—Objectors are the grandson and daughters of the original
owner and they have entered into a lease with an agreement holder who had entered into an
agreement with the actual owner of schedule mentioned property—Execution
petition allowed on condition to produce the grosse (original) within 3 days only then
delivery would be effected—Legality of—Issue of legal representatives to be
determined by the Executing Court in the execution proceedings—Executing Court
directed to decide the issue and then to decide the issue of executability of the deemed
decree in accordance with law—Revision allowed to such extent—Allowing three days’ time
to produce the grosse affirmed—Orders passed accordingly.
(Paras 49 to 54)
(C) Pondicherry Civil Courts (Amendment) Act, 2005— Section 4—Speaks of
transitory provisions. (Para 53)
Case law.—AIR 1997 Mad 178; AIR 1976 Mad 32; AIR 1973 Cal 295; FMA No. 50 of
1953 (Cal) decided on 20-1-1955; 2001 (1) MLJ 189 (SC); AIR 1963 Mad 543; AIR 1959 Punj
71; AIR 1958 SC 394; AIR 1960 Cal 623; AIR 1955 SC 376;—referred.
Counsel.—Mr. R. Subramanian, for the petitioners; M/s. Hema Sampath for R.
Subramanian, for the respondents.
JUDGMENT
M. VENUGOPAL, J.—The civil revision petitioners herein are the respondents in Execution
Petition No.90 of 2002 on the file of the learned Principal District Munsif, Pondicherry.
2. Before the lower Court, the respondents/petitioners in the Execution Petition No.90
of 2002 have prayed for the relief:
(i) to grant leave to them to execute the French Grosse Copy of the Usufructuary Gift
Deed dated 25/04/34 as a deemed decree;
(ii) to grant leave to execute the deemed decree (Section 146, C.P.C.);
(iii) to deliver to the civil revision petitioners/respondents vacant and actual possession of
the E.P. Schedule mentioned property by ejecting the respondents, bound by
the decree, and if necessary by removing the person/persons bound by the said
decree and further if necessary by breaking open the locks, if any, put up by the
respondents/obstructors or person/persons, bound by the said decree, in accordance
with Order XXI, Rule 35(1) and (3) of the C.P.C.
3. In the counter filed to the E.P.No.90 of 2002, filed by the first respondent and adopted
by other respondents, it is inter-alia averred that the E.P. is not maintainable either in law or
on facts and that the respondents are the grandson and daughters of the original owner of the
execution petition schedule mentioned property and that they have entered into a lease with an
agreement holder, who had entered into an agreement with the actual owner of schedule
mentioned property viz., grandmother of the respondents and hence, the civil revision
petitioners/respondents have no right at all to file the execution petition.
4. It is also the plea of the respondents that without obtaining any decree from any Court
of law no execution petition can be filed and hence, the E.P. has to be dismissed in
limine. As a matter of fact, the respondents contend that the French Civil Court was revoked
by the Government of Pondicherry and hence, the revision petitioners/respondents have no
manner of right to file the present execution petition.
5. The learned District Munsif, Pondicherry has passed orders in E.P.No.90 of 2002 on
24.02.2004 inter-alia allowing the execution petition on condition that the civil revision
petitioners/respondents to produce the grosse (original) within 3 days and further observed
that only then, the delivery would be effected etc.
6. According to the learned counsel for the civil revision petitioners/respondents,
the order of the lower Court is not valid in law because of the fact that the execution
petition was entertained under Civil Procedure Code and under French Civil Court, when
Civil Procedure Code, 1908 and the Transfer of Property Act were extended to Pondicherry
even in 1968 and that the lower Court also committed an error that the respondents acquired
the right within the meaning of sub-section (2) of Section 4 of the Pondicherry Extension of
Laws Act, 1963.
7. The further case of the civil revision petitioners/respondents is that the lower
Court has overlooked the fact that the right to execute a Will arise only on the death of the
last life estate holder-Radhabai Ammal viz., 29.07.2002 and that the Trial Court has failed to
see that the mandatory requirement as per law to produce the original document was not complied
with.
8. The learned counsel for the respondents/petitioners before the Trial Court contends that
the Execution Petition No.90 of 2002 were filed by the respondents/petitioners in regard to the
delivery of possession of the E.P. schedule mentioned property to the placing reliance on the
basis of a usufractuary gift deed dated 25.04.1934 perpetuated to have been executed by the
father of the respondents/petitioners and that the said gift deed was executed before a Notary,
and the said document under French Law was a deemed decree and therefore, the
respondents/petitioners are legally empowered to execute the said decree and to obtain
delivery of possession of the property from the petitioners /respondents. The learned counsel for
the respondents /petitioners pointed out before this Court that the usufractuary gift deed
dated 25.04.1934 was executed in favour of one Radhabai Ammal, who was the aunt of the
respondents/petitioners, who had the life interest to enjoy the said property along with the
life time of Balasubbammal.
9. The learned counsel for the revision petitioners submits that under the erstwhile
French Law, French Legal System enabled a person to execute a document without going
through the process of regular suit and that on 15.09.1992 there was partition Gopal Chettiar and
two brothers and that on 21.12.1930 the present property was purchased by
Ramakrishna and that on 25.04.1934 Ramakrishna Chettiar executed a gift deed giving life
estate to Balasubbammal and his sister Radhabai Ammal and on 24.09.1965 Ramakrishna
expired and legal representatives namely, R.Venugopal and R.Ganesan @ Vinayagam of
Ramakrishna Chettiar filed a suit in O.S.No.8 of 1998 on the file of the First Additional
District Munsif, Pondicherry, praying for the relief of permanent injunction against the
defendant, as servants, agents etc. from demolishing or altering the superstructure or digging
the earth or constructing any type of structure in the schedule mentioned premises and for costs
of the suit.
10. It is significant to point out that Radhabai Ammal, defendant in the suit in O.S.No.8
of 1998 has specifically admitted in her evidence as D.W.1 that she had the right of enjoyment
and that she could enjoy the said house as she desires till her demise. It is the case of the
revision petitioners that after the death of Radhabai Ammal, the LRs has come by way of present
E.P.
 11. The Pondicherry (Extension of Laws) Act, 1968 was enacted by Parliament on
24.05.1968 to extend certain Central Acts to the Union Territory of Pondicherry and by virtue
of Section 4(1) Repeal and saving provision any law in force in Pondicherry or any area thereof
corresponding to any Act referred to in sub-section (1) of Section 3 or any part thereof (except
in so far as such law continues to be applicable to Renoncants) shall stand repealed as from the
coming into force of the said Act in Pondicherry and sub-section (2) of Section 4 enjoyed that;
Nothing in sub-section (1) shall affect—
(a) the previous operation of any law so repealed or anything duly done or suffered
thereunder; or
(b) any right, privilege, obligation or liability acquired, accrued or incurred
under any law so repealed; or
(c) any penalty, forfeiture or punishment incurred in respect of any offence
committed against any law so repealed; or
(d) any investigation, legal proceeding or remedy in respect of any such right,
privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid and
any such investigation, legal proceeding or remedy may be
instituted, continued or enforced and any such penalty, forfeiture or punishment
may be imposed as if this Act had not been passed:
Provided that anything done or any action taken (including any appointment or
delegation made, notification, instruction or direction issued, form, bye-law or scheme
framed, certificate obtained, permit or licence granted, or registration effected) under any such
law, shall be deemed to have been done or taken under the corresponding provision of the Act
extended to Pondicherry by this Act and shall continue to be in force accordingly unless and
until superseded by anything done or any action taken under the said Act.
12. Section 3 of the Pondicherry (Extension of Laws) Act, 1968 provides extension with
amendment of certain laws to Pondicherry and the different dates which may be appointed
for different provisions of any Act and any reference in any such provision to the
commencement of the Act shall be construed as a reference to the coming into force of that
provision.
13. According to the learned counsel for the civil revision petitioners that to enable
execution without going to Civil Court is a procedural act and it is to be seen that whether
Section 4(2) of the Pondicherry (Extension of Laws) Act, 1968 preserve such right inspite of
extension of Civil Procedure Code to Pondicherry on 05.09.1968 and on 05.09.1968 what
are the rights and liabilities accrued to the parties are to be seen and they never had any right
when Balasubbammal and Radhabai Ammal were there and the Trial Court relied on the
mortgage deed decision and there was no evidence to show when Balasubbammal expired and it
has to be seen that whether any right accrued before 05.09.1968 and Section 4(2) of the
Pondicherry (Extension of Laws) Act, 1968 was not the same and that the
respondents/petitioners before the lower Court has to file a suit claiming their right in law.
14. The learned counsel for the revision petitioners/respondents placed reliance on the
French Civil Code (English Translation Volume I by E.Blackwood Wright, LL.D., Trinity
College, Dublin, and of the Middle Temple, Barrister-at-Law). Under the caption Title III of
Usufruct, of the Right of User and Occupation. Chapter-I of Usufruct which runs as follows:
“578. Usufruct is the right of enjoying the use of things which are owned by another as
fully as the owner himself, subject to the duty of keeping intact the subject-
matter of such usufruct. (C.587 and following; 600, 1568, 2108, 2118)
579. Usufruct arises through operation of law, or by an act inter parties. (C.384,
754, 899, 917, 949, 1401, 1403, 1422, 1530, 1549).
 580. A usufruct may be created either simpliciter without limitation, or up to a
certain day, or subject to conditions. (C.1168).
581. A usufruct may be created in respect of any kind of property, movables or
immovables. (C.587, 588).”
15. He also placed reliance to Section 3 of the manner in which usufruct terminates and
pressed into service. 617 which deals with the extinguishment of usufruct by the actual or
civil death of the usufructuary, by effluxion of time for which it was granted, etc.
16. The learned counsel for the civil revision petitioners/ respondents cited AIR 1997
Mad 178 (Shanmugam v. Perumal Naicker and others) wherein it is observed as follows:
“Civil P.C. (5 of 1908), Section 4(2) - Execution of decree in Franch Colony,
Pondicherry, obtained before commencement of C.P.C. in the Colony - Law applicable -
Code coming into force between publication was ordered and gazetter publication
was made - Steps under French Law thereafter are not valid - After coming into force of
Civil P.C., auction purchaser not depositing amounts as per provisions of Order XXI,
Rules 84 and 85 - It follows there was no sale at all - Civil revision filed against order
for sale and then withdrawn - Principles of res judicata or constructive res judicata
do not apply - Subsequent suit will not be barred - Auction sale being void, ‘mortgager
continues to be owner - There being no title in law, no title by adverse possession
can be claimed.”
17. The revision petitioners counsel relied on AIR 1976 Mad 32 (Adaikappa Chettiar v.
A.Natchiar) wherein it is observed as follows:
“(B) Pondicherry (Extension of Laws) Act (1969) Section 4—Mortgage executed
before Notaire executable under the French Law without recourse to suit—
Indian enactments extended to Pondicherry by the Pondicherry (Extension
of Laws) Act, 1968, Section 4(1), (2)—Subsequent suit on the mortgage in
Indian Court—Maintainability. (Civil P.C. (1908) Section 9—Mortgage under
French law in Pondicherry—Jurisdiction).
Under French Law a grosse copy of a notarial mortgage could be executed
as if it were a decree without a suit on the mortgage. This right is a
substantive and not a procedural one and could even after the merger of
Pondicherry in India, it could be exercised in the Indian Court praying for sale
of the hypotheca straightway. AIR 1973 Cal. 295, relied on.
But the existence of such a remedy does not bar a Civil Suit on the mortgage in
the Indian Court after the merger. What Section 4 does is not to shut out the
erstwhile French citizen from having resort to the Indian Civil Court, but to
protect and preserve whatever rights and privileges he might have had
under the French law, which has been repealed. When a person, who enjoyed
such a privilege, filed a suit in the ordinary Civil Court on foot of a notarial
mortgage deed, it is the plain duty of the Court to entertain it under Section 9 of
the Indian Civil Procedure Code.”
18. In the aforesaid decision at page 33 in paragraph 6, it is held as follows:
“Under the French law, a grosse copy of a notarial mortgage deed could be executed as
if it were a decree granted by a Court of law. There was no need under the French
system for the mortgage to file a suit pay court-fee on the plaint, obtain a
preliminary decree and then a final decree and then put that final decree in execution
against the hypotheca. The notarial mortgage deed could be entrusted straightway to a
‘huissier’ and executed in accordance with the French procedure, the details of
which I need not go into now. The question arises whether after the French Procedure
Code was repealed by the Indian Civil Procedure Code, a person in the situation of the
plaintiff, holding a grosse copy of a notarial mortgage deed is disentitled under the
Indian law to file a plaint on foot of the deed paying court-fee thereon and obtain a
decree in accordance with the Indian Civil Procedure; but should proceed to enforce
the notarial bond straightway. In fact, learned counsel for the appellant went the length
of saying that the Civil Court would have no jurisdiction to entertain the suit filed by
the holder of a notarial mortgage deed on foot thereof. I am entirely unable to
agree. The question whether the plaintiff was entitled to execute the notarial mortgage
deed without obtaining a decree thereon is one which does not call for adjudication in
this appeal, though it may not be irrelevant to refer to a Full Bench decision of the
Calcutta High Court in Susama Bala v. Bibhuti Bhushan, AIR 1973 Cal 295. There it has
been held that a grosse copy of a notarial mortgage deed could be executed even
after the Indian law has come into force without a decree being obtained. According to
the Full Bench of the Calcutta High Court, the right obtained under the grosse copy of
the notarial mortgage deed is a substantial right and not a procedural one and it must
be preserved under the Indian law after the merger. According to the learned Judges, a
person in the position of the plaintiff could execute Ex.A.1 as if it were a decree by
filing an execution petition in the Indian Court and praying for the sale of the hypotheca
straightaway. Upon this question, I do not wish to pronounce any opinion. The
distinction between substantive rights recognised by French law and mere
procedural rules of French law will have to be drawn sagaciously with regard to the
relevant circumstances of each case and the distinction cannot be exhaustively
illustrated in vacuo. For instance, the requirement of French law that notice of the
deposit of ‘Cashierdes cahrges’ shall be served on the debtor and all the creditors
and other persons mentioned in Article 692 of the Code de Procedure Civile is a matter
of substance and ought to be complied with by the Indian Courts acting within the
frame work of the Indian Civil Procedure Code. But the requirement of the French law
that the service of notice, shall be effected through huissiers is merely a procedural
matter, which the Indian Courts can ignore. No litigant can be heard to say that
service by process servers under the watchful supervision of the Indian Courts is less
efficacious than service by French huissiers. There may, however, be intermediate
cases such as the imposition of time limits by French law with reference to service of
notices. It is for the Judges to consider judicially whether such time limits affect the
substance of the thing or are merely procedural in character. The ‘substantive’ may
shade off imperceptible degrees into the ‘procedural’ and it is for the Court to draw
the line between the two, remembering the purpose of the distinction. The right to
execute a notarial mortgage deed straightway without filing a plaint, paying court-fee,
obtaining decree and exposing the claimant to the dilatory tactics of his opponent is, I
fancy, a valuable right and a substantive right. But the question is whether the
holder of a copy of a notarial mortgage deed is confined under the Indian law to the
remedy which he had under the French law. What Section 4(2) of the Pondicherry
(Extension of Laws) Act, 1968, says is that nothing in sub-section (1) shall affect any
right, privilege, obligation etc. acquired or accrued under the French law that has been
repealed. There is nothing in this section which shuts out the person who has acquired
such a right under the French law from the portals of the Indian Courts and from the
remedy to which, under the Civil Procedure Code and under the Indo-Anglian system
of jurisprudence he would undoubtedly be entitled to. A holder of a mortgage,
 although it has been granted under the French law and procedure, is certainly entitled
under the Civil Procedure Code to file a suit in accordance with the procedure thereof.
Section 9 of the C.P. Code says that the Court shall (subject to the provisions herein
contained) have jurisdiction to try all suits of a civil nature excepting suits of which
their cognisance is either expressly or impliedly barred. It is not contended by the
learned counsel for the appellant that the suit filed by the plaintiff in the Court below is
not a suit of a civil nature. What he contends is that inasmuch as the plaintiff had an
alternative remedy under the French law to proceed to enforce the notarial mortgage
deed without resort to a court of law, it is not competent for him to file a suit on Ex.A.1
in the Indian Court and obtain a decree in accordance therewith. It is indeed an irony that
this argument should come out of the mouth of the defendant who has fully exploited
the opportunity given to him by the plaintiff. If the plaintiff had chosen to enforce her
privilege under the French law by putting the notarial mortgage deed in execution
straightway, the defendant would not have had the opportunity of dragging on the
proceedings for nearly five years and raising the defences which under the French
law he could not raise. What Section 4 of the Pondicherry (Extension of Laws) Act, 1968
does is not to shut out the erstwhile French citizen from having resort to the Indian Civil
Court, but to protect and preserve whatever rights and privileges he might have had
under the French law, which has been repealed. When a person, who enjoyed such a
privilege, filed a suit in the ordinary Civil Court on foot of a notarial mortgage
deed, it is the plain duty of the Court to entertain it under Section 9 of the Indian Civil
Procedure Code. The argument that the Court has no jurisdiction to entertain the suit or
that the plaintiff has no remedy open to her under the Indian law by way of enforcing the
mortgage in an action of this kind is to disregard the nature and amplitude of the saving
provisions of the Pondicherry (Extension of Laws) Act, 1968, I have little hesitation in
rejecting this contention of the appellant and in holding that even though the plaintiff
might have had the alternative relief of enforcing the mortgage as if were a decree
without resorting to an action in a Civil Court, undoubtedly she shared with the
other Indian citizens the right to file a suit on the mortgage deed in a Civil Court,
obtain a decree and then proceed to execute it.”
19. The learned counsel for the revision petitioners/respondents drew the attention of this
Court by placing reliance on the following passage at page 183 from the Book titled in The
French Legal System and its Indian Connections by Justice Dr. David Annoussamy, Visiting
Professor, National Law School Formerly Chief Judge, Pondicherry Judge, High Court,
Madras Vice-Chairman, Central Administrative Tribunal which runs as follows:
“Similarly, when the French civil law happened to be administered in English language
the right of usufruct was translated as life estate or limited estate. But those concepts are
different from the usufruct in respect of which the Code Civil otherwise reputed for its
brevity contains 47 Articles. As defined by the Code Civil in Article 578, it is the right
of enjoying the use of things, which are owned by another, as fully as the owner
himself, subject to the duty of keeping intact the subject-matter of such usufruct. The
French have split the right of ownership into two separate rights, the right of bare
ownership and the right of usufruct. Each can vest in two different persons who
can deal with it and dispose of it as they please. The fragmentation of right in French
Law: can last even after the first beneficiaries had ceased to hold their respective
rights. In a life estate also there is also a fragmentation of right. But both do not have
concomitant rights as in the case of usufruct. So the rights and obligations in the
case of usufruct and life estate are quite different; assimilating the one to the other
is conducive to errors.”
 20. The learned counsel for the revision petitioners/respondents submits that copies of
notarial acts are of two kinds: (i) common copies, or expeditions, and (ii) executory copies, or
grosses and a grosse is a copy bearing the formule executoire and the ‘executory formula’
which is the same in the case of a notarial act as in that of the decree of a Court of law, is an
order addressed to all huissiers and other agents of law force publique, directing them to give
coercive effect, on request, to the covenants of the instrument, etc.
21. It is pertinent to refer that the usufructuary gift deed dated 25.04.1934(Translation
from French to English) executed by Ramakichenachettiar in favour of his mother
Balasoubbammalle daughter of Venouchettiar and wife of the said Gobalacuchettiar and 2 of
his sister Radhabayeammalle alias Leelailabaye daughter of the said late Gobalochettiyar and
widow of Mr. Zeganadam Chettiar. In respect of the usufruct of the brick built partly tiled and
partly tarraced house formerly bearing the No.79 and at present No.77 situated at the
said Galisparincovil Street, Pondicherry with certain conditions. The said usufructuary gift deed
dated 25.04.1934 has conditions:
‘(i) The said ladies Balasoubbammalle and Radhabayeammal alias Conzilabaye shall
jointly and together have during their respective life times, the enjoyment of the
said house without having the right to sell, mortgage or gift it;
(ii) After the death of the said ladies Balasoubbammale and Radabayeammalle alias
Couzilabaye the said house shall return to the donor, whereas the usufruct above
mentioned shall come to an end by the death of the usufructories.’
22. It is to be noted that ‘the individuals Balasoubbammalle and
Radhabayeammalle alias Couzilabaye after reading and interpretation of all the preceding by the
undersigned notaire (Mr.Ragounada Periasamy notaire in the jurisdiction of Pondicherry) have
formally declared by the present to accept the usufruatory gift of the said house made in
their favour by their favour son and brother Ramakichena Chettiar, by virtue of the present
and undertake to conform to the conditions under which the present gift is made’, as seen from
the recitals of the said document.
23. The learned counsel for the respondents/petitioners submits that already a decree
was in favour of the respondents/petitioners and what remains to be done is that the
execution of the decree and it is not as if filing of fresh suit is the only remedy and that if second
suit is to be filed then the respondents/petitioners would have no defense at all.
24. It is also further contended on behalf of the respondents/ petitioners that the
Execution Petition No.90 of 2002 filed before the learned Principal District Munsif,
Pondicherry under Civil Procedure Code was only a procedural one and not obtained under
French Law and the procedure to be adopted now is Civil Procedure Code and a decree passed
long ago is enforceable in law and the same is valid and the position of the civil revision
petitioners are that of permissive occupation.
25. According to the learned counsel for the respondents/petitioners, the gift deed dated
25.04.1934 was executed before the notary, which has the force of a decree and in support of the
said contention placed reliance on the decision reported in AIR 1973 Cal 295 (Susama Bala Sur
v. Bibhuti Bhusan Mondal) wherein it is observed as follows:
“Index Note:-(A) Civil P. C., Section 2(2) -Decree - Grosses copy of a Notarial Mortgage
Bond executed under the French Law has the force of a decree. (X-Ref:- Chandernagore
(Merger) Act (1954), Section 18(2)). (X.Ref:- Chandernagore (Application of Laws)
Order (1950), Paras 7 and 8). (X-Ref:- Chandernagore (Administration) Regulation
(1952), Regln.8).”
26. In the aforesaid decision at pages 296 and 297 in para 12 it is held as follows:
 “12. It has already been noted that a Notary under the French Law had to deliver a
Grosses copy of a mortgage bond executed and filed before him in executory
form by virtue of Article 545 of the French Civil Procedure Code. Such a
grosses copy in executory form could be executed as a decree in accordance
with the French Laws prevalent in Chandernagore and the holder of such a
grosses copy could put the same into execution without having to file any suit
for the enforcement of the mortgage. In the instant case the French Bond was
executed on September 2, 1949, and was dated the same day. Upon such
execution of the Notarial Mortgage Bond and delivery of a grosses copy
thereof to the mortgagee the mortgagee acquired a right to execute the
same without having to file a suit for the enforcement thereof. Upon the coming
into force of the Chandernagore (Application of Laws) Order, 1950, such
French Laws as corresponded with the statutes mentioned in the schedule to
the said order stood repealed. Nonetheless the existing rights of parties on
that date including the right of the respondent mortgagee to execute the said
grosses copy of the Mortgage Bond without having to file a suit, therefore,
were preserved by the saving clause contained in the para 7 of the said order.
According to the provisions of the said order, neither the French Laws nor
the French Code or Procedure in their entirety ceased to be operative but only so
much of it ceased to be in force as corresponded to the statutes stated in the
Schedule or subsequently added to the schedule.”
27. At this juncture, it is relevant to make a mention that there is no vested right in
procedure. As a matter of fact, in AIR 1973 Cal 295 (Susama Bala Sur v. Bibhuti Bhusan
Mondal) at special page 297, it is categorically observed that “a grosses copy of a Notarial
Mortgage Deed could be executed as a decree has been held in the unreported case of
Gour Mohan v. Gokul Chandra, F.M.A.No.50 of 1953 (Cal.), a decision of S.R.Das Gupta J.
and Mullick J. of January 20, 1955”.
28. The pith and substance of the contention advanced by the learned counsel for the
respondents/petitioners is that in the case on hand before us, the usufruatory gift deed dated
25.04.1934 was executed before the Notary and the same is in the manner of a decree passed by
a competent Court of law, which has the force of a decree under the French Law and also under
Indian Law and the mode of executing the same is only by means of execution, is correct in law
in the considered opinion of this Court and therefore, the contention of the civil revision
petitioners/respondents that the Usufruatory gift deed dated 25.04.1934 executed before the
Notary was not a decree passed by a competent Court of law and therefore, it has no force of a
decree under French Law and Indian Law is not accepted by this Court.
29. The learned counsel for the respondents/petitioners produced the English Translation
of “Code de Procedure Civile” (In French) before this Court and pressed into service
Chapter VI of General Rules on forced execution of judgment and acts Article 545 which enjoins
as follows:
“No judgment or act shall be put into execution if they do not bear the same title as
the laws and are not ended by an order to the law officers as provided for in Art.146.”
and also placed reliance an Article 145 which runs as follows:
“The certified copy of the judgment shall begin and terminate in the name of the King
in conformity Article 48 of the Constitutional Charter.”
30. In the English Translation by Notary of the French Arrete:- Article 1 of the English
Translation speaks of that ‘the provision of notariat which is organised in the French
settlements in India according to the provisions of this decret’.
 31. Article 2 (English Translation) specifies that ‘the notaries are public officers appointed
to record all deeds and contracts to which the parties should or wish to have given the
authentic character attached to the deeds of public authority and in order to assure for them the
date, to keep them in custody and to issue from them the engrossed and authentic copies’.
32. Article 20 in regard to the provision of notariat enjoins that ‘all notarial deeds are
conclusive evidence before Court about the agreement they contain between the parties
contracting and their heirs of beneficiaries and they are enforceable in the whole area of
Territory of Republic and in all the french possessions’.
33. Article 26 of the French Arrete English Translation refers to the engrossed copies
only that are issued with execution formula, and they are titled and ended with the same terms
as the Courts judgments.
34. Article 37 of the French Arrete (English Translation) refers to the number of
notaries in Pondicherry commune as 1 and Article 39 states that ‘there will be only one
notary in each french settlement of Chandernagor, Mahe and Yanam.
35. In the Pondicherry Code Volume-I (published by the Law Department, Government
of Pondicherry) The Schedule [See Section 1(3) para 1] page 350 refers the year 1952, No.53
as the Notaries Act, 1952.
36. The Pondicherry (Administration) Act, 1962 (Act 49 of 1962) dated 05.12.1962, to
provide for the administration of Pondicherry and for matters connected therewith, definition
Section 2 (b) refers to “appointed day” meaning the 16th day of August, 1962, being the
date of entry into force of the Treaty of Cession.
37. Section 4(1) of the Pondicherry (Administration) Act, 1962 relates to continuance of
existing laws and their adaptation which states that ‘all laws in force immediately before the
appointed day in the former French Establishments or any part thereof shall continue to be
in force in Pondicherry until amended or repealed by a competent or other competent
authority:......’
38. Further more, Section 4(2) of the Pondicherry (Aministration) Act, 1962 speaks
thus ‘for the purpose of facilitating the application of any such law in relation to the
administration of Pondicherry and for the purpose of bringing the provisions of any such law
into accord with the provisions of the Constitution, the Central Government may, within three
years from the appointed day, by order, make such adaptations and modifications, whether by
way of repeal or amendment, as may be necessary or expedient and thereupon every such law
shall have effect subject to the adaptations and modifications so made.’
39. In the Pondicherry Code Volume-I (Published by the Law Department, Government
of Pondicherry), the Pondicherry (Laws) Regulation, 1963 (No.7 of 1963) which speaks of
extending certain laws to the Union territory of Pondicherry, Section 4 the Repeal and
saving enjoins as follows:
“Repeal and saving.—(1) Any law in force in Pondicherry or any area thereof
corresponding to any Act referred to in Section 3 shall stand repealed as from the
coming into force of such Act in Pondicherry; and all the laws specified in the Second
Schedule are hereby repealed.
(2) Nothing in sub-section (1) shall affect—
(a) the previous operation of any law so repealed or anything duly done or
suffered thereunder; or
(b) any right, privilege, obligation or liability acquired, accrued or incurred under
any law so repealed; or.......”
 40. The Pondicherry Civil Courts Act, 1966 (No.12 of 1966), an Act to consolidate and
amend the law relating to the Civil Courts in the Union territory of Pondicherry, Section 6
refers as follows:
“Courts under the Act to be successors to existing Courts.—(1) The Tribunal Superieur
d’ Appeal, Courts of Tribuanl de lere Instance and Juge de Paix existing immediately
before the commencement of this Act shall be respectively the first Court of the
District Judge, Subordinate Judge’s Court and Munsif’s Court under this Act.”
Moreover, Section 8(1) of the Pondicherry Civil Courts Act, 1966 states that—
(1) The jurisdiction of District Judge or Subordinate Judge extends, subject to the
rules of procedure contained in the law relating to procedure for the time
being in force, to all original suits and proceedings of a civil nature.
(2) The jurisdiction of a Munsif extends to all like suits and proceedings not
otherwise exempted from his cognizance, of which the amount or value of the
subject matter does not exceed five thousand rupees:
Provided that the Government may, by notification in the Official Gazette, increase the
jurisdiction to ten thousand rupees.
41. It is useful to refer that the Treaty of Cession of the French Establishments of
Pondicherry, Karaikal, Mahe and Yanam, Article 14 refers to—
“Legal proceedings instituted prior to the 1st of November, 1954 shall be judged in
conformity with the basic legislation and procedure in force at that time in the
Establishments.
To this end, and up to final settlement of such proceedings, the existing Courts in the
Establishments shall continue to function. Officers of the Court shall be law graduates,
habitually domiciled in the Establishments, honourably known and selected in
accordance with the French regulations governing the designation of temporary
judicial officers.
The interested parties shall be entitled, if they so decide by common agreement, to
transfer to the competent Indian Courts, the said proceedings as well as proceedings
which, though already open, are not yet entered with the Registrars, the French
Courts and also proceedings which constitute an ordinary or extraordinary appeal.
Judgments, decrees and orders passed by the French Courts, prior to the 1st of
Novermber, 1954, which are final or may become so by expiration of the delays
of appeal, shall be executed by the competent Indian authorities. Judgments, decrees
and orders passed after the 1st of November, 1954 in conformity with the first
paragraph of the present article shall be executed by the competent Indian
authorities, irrespective of the Court which exercise the jurisdiction.
Acts or deeds constitutive of rights established to the 1st of November, 1954 in
conformity with French law, shall retain the value and validity conferred at that time
by the same law.”
42. The learned counsel for the respondents/petitioners cited the decision reported in
(2001) 1 M.L.J. 189 (S.C.) (Ratasingh v. Vijayasingh and others) wherein it is observed as
follows:
“Normally a decree or order becomes enforceable from its date. But cases are not
unknown when the decree becomes enforceable on some further date on the
happening of certain specified events. The expression ‘enforceable’ has been used to
cover such decrees or orders also which become enforceable subsequently.”
 43. The learned counsel for the revision petitioners/respondents put forward a plea
before this Court that the respondents/ petitioners will have the right to recovery and that will
commence only after the death of Radhabai Ammal and not in the year 1968. He further
submitted that after the death of Radhabai Ammal the right of enjoyment comes to an end. As
a matter of fact, according to the learned counsel for the revision petitioner, the right of
respondents/petitioners to recover possession only blossoms in the year 2002 when Radhabai
Ammal died and not before that.
44. In AIR 1936 Mad 543 (Periakatha Nadar v. Mahalingam) it is held as follows:
“(a) Civil P.C. (1908), Order XXI, Rule 16-’Operation of Law.’ meaning.
The words, “operation of law” cannot apply to a case where a person has
become the owner of a decree by some transaction inter vivos.
(b) Civil P.C. (1908), Order XXI, Rule 16-No particular form of assignment is
prescribed.
No particular form of assignment is prescribed in the case of decrees either
under Order XXI, Rule 16 or by any other provision of law. Anything in
writing which transfers a decree and clearly shows that the intention was to
assign the decree is sufficient. What is required is an assignment in substance
which is in writing.”
45. In AIR 1959 Punj 71 (Punjab Co-op. Bank v. Bikram Lal) it is held that—
“Procedure is a handmaid and not mistress of law and rules of procedure should subserve
and not govern. Procedure is only a channel to administer law and it should not be
instrumental in impleading or obstructing justice; rules of procedure should always be
utilised for advancing and not for defeating the cause of justice.”
46. In AIR 1958 SC 394 (Saila Bala Dassi v. Nirmala Sundari) it is observed as follows:
“(b) Civil P.C. (1908), Section 146, Order XXII, Rule 10 - Scope of Section 146.
An appeal is a proceeding for the purpose of Section 146 and further the
expression “claiming under” is wide enough to include cases of devolution and
assignment mentioned in Order XXII, Rule 10. Whoever is entitled to be but
has not been brought on record under Order XXII, Rule 10 in a pending suit or
proceeding the decree or order passed therein if his assignor could have filed
such an appeal, there being no prohibition against it in the Code. AIR 1919
Mad 755 (2) Approved; (S) AIR 1955 SC 376 Foll. Anno: AIR Com.C.P.C.
S.146, N.2, 5, 8; O.22, R.10, N.2.”
47. In AIR 1960 Cal 623 (Jatindra Mohan Banerjee v. Kali Charan @ Kalipada Sarkar)
it is held thus:
“Civil P.C. (1908), Sections 146, 47, Order XXI, Rule 32 - Representative suit -
Decree for injunction - Execution against parties not on record - Can be ordered under
Section 146 - Applicability of Section 47(3).
A decree for injunction obtained against the defendants in a representative suit can
be executed, under Order XXI, Rule 32, against those defendants who were not
eonomine parties to the suit. Though such defendants are neither the legal
representatives nor the transferees within the meaning of Order XXI, Rules 16 and 22,
yet as the execution proceeding is a proceeding within the meaning of Section 146, it
can proceed against such defendants as they claim the same title under or are equally
interested as the defendants who were parties on record to the suit. And any finding by
the execution Court on the objections raised by such defendants on merits will fall
within the scope of Section 47(3), (S)AIR 1955 SC 376 and AIR 1958 SC 394, Foll;
 (S)AIR 1955 All 385 and AIR 1942 Lah 136, Ref.; (S) AIR 1955 Mad 281 (FB), Not
foll.”
48. In AIR 1955 S.C. 376 (Jugalkishore v. Raw Cotton Company) it is observed as
follows:
“(b) Civil P.C. (1908), Order XXI, Rule 16 - Equitable assignment.
The first thing that strikes one is the sequence of events contemplated by
Order XXI, Rule 16. It postulates first, that a decree has been passed and
secondly, that that decree has been transferred (i) by assignment in writing
or (ii) by operation of law.”
49. It is not out of place to make a significant mention that Ex.P.3, usufruatory gift deed
dated 25.04.1934 provides for Balasoubbammalle and Radabayeammale to enjoy the property
bearing present No.77 situated at Galisparincovil Street, Pondicherry during their respective
life times without a right to sell mortgage or gift the same and after the death of two
individuals referred to above, the said house shall return to the donor and that the usufruct
shall come to an end by the death of the usufruatories. There is no evidence to show
when Balasoubbammalle expired. Radabayeammalle, the life interest holder expired on
29.07.2002, as evidenced by Ex.P.1-Death Certificate issued by the Pondicherry
Municipality on 13.08.2002. Ex.R.3 is the Death Certificate of Ramakichenachettiar and his date
of death is 24.09.1965, as seen from the Death Certificate issued by the Pondicherry
Municipality dated 21.07.2003. Ex.R.2 is the Birth Certificate of first respondent Vengattaramin
and his date of birth is 29.11.1964.
50. In the Executing Court, the first civil revision petitioner/first respondent has filed
counter to the E.P.No.90 of 2002 filed respondents/ petitioners. In the counter, it is specifically
averred at para 4 that ‘the civil revision petitioners/respondents are the grandson and daughters
of the original owner of the E.P. Schedule mentioned property and that they have also entered
into a lease with one agreement holder, who had entered into an agreement with the actual
owner of E.P. schedule mentioned property namely, grand-mother of these respondents.’ The
respondents/petitioners father Ramakichenachettiar has executed the Usufructory Gift Deed
dated 25.04.1934 wherein Balasoubbammalle and Radabayeammalle are given the right of
enjoyment of the house during their life terms. It is pertinent to point out that
Radabayeammalle is none other than the aunt of the respondents/petitioners.
51. The Executing Court in its order passed in E.P.No.90 of 2002 on 24.02.2004
has held that ‘the respondents/petitioners filed execution petition as LRs of the donor and that
Section 146 and Order XXI, Rule 16 provide for it and that there is no contra evidence, contra
plea to show that respondents/petitioners are not the legal heirs of the donor and accepted the
plea of the respondents/petitioners.’
52. When a specific plea has been raised in the counter to E.P.No.90 of 2002 filed by the
first civil revision petitioner/first respondent and adopted by other civil revision
petitioners/respondents that they are the grandson and daughters of original owner of the E.P.
Schedule mentioned property and when the respondents/petitioners claim that their father
has executed the usufruatuary gift deed dated 25.04.1934 then it is incumbent on the part of the
Executing Court to give a definite and clear-cut finding has to the issue of legal
representatives. In the present case on hand, the Executing Court in its order dated
24.02.2004 passed in E.P.No.90 of 2002 has not adverted to the plea of the civil revision
petitioners/respondents raised in para 4 of the counter that they are the grand son and daughters
of original owner and therefore, this Court is of the considered view that the issue of legal
representatives is to be decided first by the Executing Court and later the Executing Court is to
decide about the issue of executability of the deemed decree.
 53. Section 2(11) of Civil Procedure Code defines “legal representative” which means
a person who in law represents the estate of a deceased person, and includes any person who
intermeddles with the estate of the deceased and where a party sues or is sued in a
representative character the person on whom the estate devolves on the death of the party so
suing or sued. It cannot be gainsaid that the Pondicherry Civil Courts Act, 1966 was amended by
Act 5 of 2005 on 15.7.2005 which deals about the jurisdiction of District Judge, Subordinate
Judge and District Munsif in original suits etc. Indeed Section 4 of the Pondicherry Civil Courts
(Amendment) Act, 2005 speaks of transitory provisions.
54. Inasmuch as the issue of “legal representatives” is to be determined by the Executing
Court viz., the Principal District Munsif, Pondicherry in E.P.No.90 of 2002 this Court remits
the matter back to the Executing Court viz., Principal District Munsif, Pondicherry and the
learned District Munsif, Pondicherry is directed to decide the issue of legal representative as
defined under Civil Procedure Code in E.P.No.90 of 2002 and then the learned District Munsif,
Pondicherry is also further directed to decide about the issue of executability of the
deemed decree in the case on hand in the manner known to law and in that view of the matter,
the civil revision petition is allowed. The 3 days’ time granted by the learned District Munsif,
Pondicherry to produce the grosse (original) is affirmed by this Court. The learned Principal
District Munsif/Executing Court is further directed to dispose of the E.P.No.90 of 2002 on his
file within four months from the date of receipt of copy of this order, providing opportunities
to both parties to adduce oral and documentary evidence in accordance with law.
Conseqeuntly, connected miscellaneous petition is closed. There shall be no order as to costs.
Petition allowed.

[2008 (1) T.N.C.J. 564 (SC)]

SUPREME COURT
BEFORE:
S. B. SINHA AND LOKESHWAR SINGH PANTA, JJ.
NATIONAL INSURANCE CO. LTD. ...Petitioner
Versus
DEEPA DEVI AND OTHERS ...Respondents
[Civil Appeal No.5796 of 2007 (Arising out of SLP (C) No.22778 of 2005), decided on 11 th
December, 2007]
Motor Vehicles Act, 1988—Sections 2 (30) and 166—Compensation—Liability to pay
—Vehicle requisitioned by District Magistrate in exercise of its power under
Representation of People Act met with accident resulting in death of one person—High
Court fixed liability jointly on owner of vehicle, State Government and insurance company
—Legality of—Held, when a vehicle is requisitioned by statutory authority owner cannot
refuse to abide by the order and owner cannot exercise any control thereupon—
Hence, State shall be responsible and not owner of vehicle and consequently appellant
herein. (Paras 10 and 18)
Case law.—(1997) 7 SCC 481; (1988) 3 SCC 1; (2004) 8 SCC 387; (2007) 1 SCC 467;
(2003) 3 SCC 97; 1988 (2) TAC 25; 1989 ACJ 596; AIR 1996 Guj 51—referred.
 Important Point
Vehicle requisitioned by State met with accident—Liability of.—Where a vehicle
requisitioned by State is met with accident the owner will not be liable to pay compensation and
only State will be liable.
JUDGMENT
S.B. SINHA, J.—Leave granted.
2. The short question involved in this appeal arising out of a judgment and order dated
17.05.2005 passed by the High Court of Himachal Pradesh in FAO (MVA) No. 208 of 1997 is as
to whether in the event a car is requisitioned by the State for the purpose of deploying the same in
the election duty, who would be liable to pay compensation to the victim of the accident in terms
of the provisions of the Motor Vehicles Act, 1988 (for short “the 1988 Act”).
3. Respondent No. 3 was the owner of a Maruti Gypsy bearing Registration No. HIS
6095. Appellant Company issued a policy of insurance in favour of respondent No. 4 for the
said Maruti Gypsy for the period 10.06.1993 to 9.06.1994. In regard to limitation of its use, the
insurance policy provided:
“For private car IXI and Motor Cycle/Scooter IYI. Use only for social, domestic and
pleasures and insured’s own purpose”
4. The car in question was requisitioned during the Assembly Elections in the year 1993
by the Sub-Divisional Magistrate, Rampur through the Deputy Commissioner, Shimla. The said
vehicle was in possession as also under the control of the said officer. On or about 17.11.1993
while the Sub-Divisional Magistrate Rampur was travelling in the said vehicle, an accident
occurred as a result whereof a boy named Satish Kumar sustained injuries. He later on expired.
5. Respondent No. 1 Deepa Devi and Joginder being the heirs and legal representatives of
the deceased filed an application for compensation in terms of Section 166 of the 1988 Act. The
State of Himachal Pradesh as also the Sub-Divisional Magistrate Rampur were impleaded therein.
The Motor Accident Claims Tribunal in its judgment dated 28.09.1996 upheld the contention of
the Insurance Company that under the terms of the insurance policy, it was not liable to reimburse
the owner of the vehicle as regards his liability to pay compensation on account of said
accident. A Division Bench of the High Court, however, by reason of the impugned judgment,
has set aside the said award of the Tribunal, holding:
“In view of the above discussion, the appeal is allowed and the award of the Tribunal is
modified and it is held that the owner of the vehicle, the State Government and the
Insurance Company are all jointly and severally liable to pay the compensation. Since the
vehicle was insured with the Insurance Company it shall deposit the amount payable
to the claimants.”
6. Mr. Parmanand Gaur, learned counsel appearing on behalf of the appellant, submitted
that having regard to the definition of ‘owner’ as contained in Section 2(30) of the 1988 Act and
as the vehicle in question was not used for the purpose for which the contract of insurance
was entered into, the judgment of the High Court cannot be sustained. Strong reliance in this
behalf has been placed on Rajasthan State Road Transport Corporation v. Kailash Nath Kothari
and others, (1997) 7 SCC 481.
7. Mr. J.S. Attri, learned counsel appearing on behalf of respondent Nos. 5 and 6, on the
other hand, would support the judgment contending that this Court in Guru Govekar v. Miss
Filomena F. Lobo and others, (1988) 3 SCC 1, has categorically held that even if the vehicle
remains in possession of a third party, the registered owner of the vehicle shall continue to be
the owner within the meaning of the provisions of the 1988 Act and, thus, would be liable for
payment of damages to the victims of an accident.
8. The 1988 Act was enacted to consolidate and amend the law relating to motor vehicles.
It repeals and replaces the Motor Vehicles Act, 1939 (for short “the 1939 Act”).
9. “Owner” has been defined in Section 2(19) of the 1939 Act to mean:
“In this Act, unless the context otherwise requires,
xxx xxx xxx
(19) “owner” means, where the person in possession of a motor vehicle is a minor, the
guardian of such minor, and in relation to a motor vehicle which is the subject
of a hire purchase agreement, the person in possession of the vehicle under
that agreement”.
However, the said definition underwent a change by reason of Section 2(30) of the 1988
Act providing:
“In this Act, unless the context otherwise requires,
xxx xxx xxx
(30) “owner” means a person in whose name a motor vehicle stands registered, and
where such person is a minor, the guardian of such minor, and in relation to a
motor vehicle which is the subject of a hire-purchase agreement, or an greement
of lease or an agreement of hypothecation, the person in possession of the vehicle
under that agreement”.
10. Parliament either under the 1939 Act or the 1988 Act did not take into consideration a
situation of this nature. No doubt, respondent Nos. 3 and 4 continued to be the registered owner
of the vehicle despite the fact that the same was requisitioned by the District Magistrate in
exercise of its power conferred upon it under the Representation of People Act. A vehicle is
requisitioned by a statutory authority, pursuant to the provisions contained in a statute. The
owner of the vehicle cannot refuse to abide by the order of requisition of the vehicle by the
Deputy Commissioner. While the vehicle remains under requisition, the owner does not exercise
any control thereover. The driver may still be the employee of the owner of the vehicle but he
has to drive it as per the direction of the officer of the State, who is put in-charge thereof. Save
and except for legal ownership, for all intent and purport, the registered owner of the vehicle
loses entire control thereover. He has no say as to whether the vehicle should be driven at a given
point of time or not. He cannot ask the driver not to drive a vehicle on a bad road. He or the
driver could not possibly say that the vehicle would not be driven in the night. The purpose of
requisition is to use the vehicle. For the period the vehicle remains under the control of the State
and/or its officers, the owner is only entitled to payment of compensation therefor in terms of the
Act but he cannot not exercise any control thereupon. In a situation of this nature, this Court
must proceed on the presumption that the Parliament while enacting the 1988 Act did not
envisage such a situation. If in a given situation, the statutory definitions contained in the 1988
Act cannot be given effect to in letter and spirit, the same should be understood from the
common sense point of view.
11. In Mukesh K. Tripathi v. Senior Division Manager, LIC and others, (2004) 8 SCC 387,
this Court observed:
“The interpretation clause contained in a statute although may deserve a broader meaning
having employed the word “includes” but therefor also it is necessary to keep in view the
scheme of the object and purport of the statute which takes him out of the said definition.
 Furthermore, the interpretation section begins with the words “unless the context
otherwise requires”.
In Ramesh Mehta v. Sanwal Chand Singhvi, it was noticed: (SCC p. 426, paras 27-28)
“A definition is not to be read in isolation. It must be read in the context of the phrase
which would define it. It should not be vague or ambiguous. The definition of words
must be given a meaningful application; where the context makes the definition given in
the interpretation clause inapplicable, the same meaning cannot be assigned.”
In State of Maharashtra v. Indian Medical Assn. one of us (V.N. Khare, C.J.) stated that
the definition given in the interpretation clause having regard to the contents would not be
applicable. It was stated: (SCC p. 598, para 8)
‘A bare perusal of Section 2 of the Act shows that it starts with the words “in this Act,
unless the context otherwise requires…..”. Let us find out whether in the context of the
provisions of Section 64 of the Act the defined meaning of the expression “management”
can be assigned to the word “management” in Section 64 of the Act. In para 3 of the
Regulation, the Essentiality Certificate is required to be given by the State Government
and permission to establish a new medical college is to be given by the State
Government under Section 64 of the Act. If we give the defined meaning to the
expression “management” occurring in Section 64 of the Act, it would mean the State
Government is required to apply to itself for grant of permission to set up a Government
Medical College through the University. Similarly it would also mean the State
Government applying to itself for grant of Essentiality Certificate under para 3 of the
Regulation. We are afraid the defined meaning of the expression “management” cannot
be assigned to the expression “management” occurring in Section 64 of the Act. In the
present case, the context does not permit or requires to apply the defined meaning to the
word “management” occurring in Section 64 of the Act.’
[See also Pandey & Co. Builders (P) Ltd. v. State of Bihar and another (2007) 1 SCC
467.]
12. In Guru Govekar (supra), this Court was considering the definition of ‘owner’
under the 1939 Act. Therein the car was handed over to a mechanic for carrying out certain
electrical repairs to the car, when the accident occurred. This Court in the said fact situation held:
“14. Thus, on the facts of the case before us we are of the view that the insurer is
liable to pay the compensation found to be due to the claimant as a consequence
of the injuries suffered by her in a public place on account of the car colliding
with her on account of the negligence of the mechanic who had been engaged
by the repairer who had undertaken to repair the vehicle by virtue of the
provisions contained in Section 94 of the Act which provides that no person shall
use except as a passenger or cause or allow any other person to use a motor
vehicle in a public place, unless there is in force in relation to the use of the
vehicle by that person or that other person, as the case may be, a policy of
insurance complying with the requirements of Chapter VIII of the Act. Any other
view will expose innocent third parties to go without compensation when they
suffer injury on account of such motor accidents and will defeat the very object
of introducing the necessity for taking out insurance policy under the Act.”
13. It is not a case where the car was handed over to a person with consent of the owner
thereof. When a vehicle is requisitioned, the owner of the vehicle has no other alternative but to
handover the possession to statutory authority.
14. We are not oblivious of another decision of this Court in Rikhi Ram and another v.
Sukhrania (Smt) and others, (2003) 3 SCC 97, wherein keeping in view the provisions of
Sections 94 and 95 of the 1939 Act, a plea taken by the owner of the car that he has transferred
the same in favour of another person and, thus, he had no liability for payment of compensation
was negatived, stating:
“5. The aforesaid provision shows that it was intended to cover two legal objectives.
Firstly, that no one who was not a party to a contract would bring an action on a
contract; and secondly, that a person who has no interest in the subject-matter
of an insurance can claim the benefit of an insurance. Thus, once the vehicle is
insured, the owner as well as any other person can use the vehicle with the
consent of the owner. Section 94 does not provide that any person who will use
the vehicle shall insure the vehicle in respect of his separate use.
6. On an analysis of Sections 94 and 95, we further find that there are two third
parties when a vehicle is transferred by the owner to a purchaser. The purchaser
is one of the third parties to the contract and the other third party is for whose
benefit the vehicle was insured. So far, the transferee who is the third party
in the contract, cannot get any personal benefit under the policy unless there is a
compliance with the provisions of the Act. However, so far as third-party injured
or victim is concerned, he can enforce liability undertaken by the insurer.”
We are also not concerned with such a situation.
15. In Kailash Nath Kothari (supra), however, this Court in a case, where a bus was given
on lease by the owner of the vehicle Shri Sanjay Kumar in favour of the Rajasthan State Road
Transport Corporation, held that when an accident takes place when the bus was plied under the
control of the Corporation, it was the Corporation alone who would be liable for payment of
compensation, stating:
“…Driver of the bus, even though an employee of the owner, was at the relevant time
performing his duties under the order and command of the conductor of RSRTC for
operation of the bus. So far as the passengers of the ill-fated bus are concerned, their
privity of contract was only with the RSRTC to whom they had paid the fare for
travelling in that bus and their safety, therefore, became the responsibility of the RSRTC
while travelling in the bus. They had no privity of contract with Shri Sanjay Kumar, the
owner of the bus at all. Had it been a case only of transfer of services of the driver and
not of transfer of control of the driver from the owner to RSRTC, the matter may have
been somewhat different. But on facts in this case and in view of Conditions 4 to 7 of the
agreement (supra), the RSRTC must be held to be vicariously liable for the tort
committed by the driver while plying the bus under contract of the RSRTC. The general
proposition of law and the presumption arising therefrom that an employer, that is the
person who has the right to hire and fire the employee, is generally responsible
vicariously for the tort committed by the employee concerned during the course of his
employment and within the scope of his authority, is a rebuttable presumption. If the
original employer is able to establish that when the servant was lent, the effective control
over him was also transferred to the hirer, the original owner can avoid his liability and
the temporary employer or the hirer, as the case may be, must be held vicariously liable
for the tort committed by the employee concerned in the course of his employment while
under the command and control of the hirer notwithstanding the fact that the driver would
continue to be on the payroll of the original owner. The proposition based on the general
principle as noticed above is adequately rebutted in this case not only on the basis of the
evidence led by the parties but also on the basis of Conditions 6 and 7 (supra), which go
to show that the owner had not merely transferred the services of the driver to the RSRTC
but actual control and the driver was to act under the instructions, control and command
of the conductor and other officers of the RSRTC.”
 We may also notice at this stage certain judgments of some High Courts. 16. In The
National Insurance Co. Ltd. v. Durdadahya Kumar Samal and Others, 1988 (2) T.A.C. 25, where
the vehicle was requisitioned by the Collector for election duty, the High Court of Orissa held:
“In a vehicle requisitioned, the driver remains under the control of the Collector and by
such driving the vehicle he can be accepted to have been employed by the Collector.
Thus, the Collector would be vicariously liable for the act of the driver in the present
case.”
[See also New India Assurance Co. Ltd. v. S. Ramulamma and others, 989 ACJ 596.]
17. In Chief Officer, Bhavnagar Municipality and another v. Bachubhai Arjanbhai and
others, AIR 1996 Guj 51, the High Court of Gujarat held:
“7. The facts on record clearly indicate that the vehicle in question which belonged
to the State of Gujarat was entrusted to the Municipality for distribution of
water to the citizens. It was implicit in allowing the vehicle being used for such
purpose that the State of Gujarat which owned the vehicle also caused or allowed
any driver of the Municipality who was engaged in the work of distribution
of water to the citizens, to use motor vehicle for the purpose. Therefore,
when the vehicle was driven by the driver of the Municipality and the accident
resulted due to his negligence, the insurer of the vehicle became liable to pay the
compensation under the provisions of the Act. It is, therefore, held that the State,
as the owner of the vehicle and the respondent Insurance Company as its insurer
were also liable to pay the compensation awarded by the Tribunal….”
18. We, therefore, are of the opinion that the State shall be liable to pay the amount of
compensation to the claimants and not the registered owner of the vehicle and consequently the
appellant herein.
19. For the reasons aforementioned, the impugned judgment cannot be upheld. It is set
aside accordingly. The appeal is allowed. No costs.
Appeal allowed.

[2008 (1) T.N.C.J. 572 (SC)]

SUPREME COURT
BEFORE:
B. N. AGRAWAL, P.P. NAOLEKAR
AND P. SATHASIVAM, JJ.
S. BAGIRATHI AMMAL ...Petitioner
Versus
PALANI ROMAN CATHOLIC MISSION ...Respondent
[Civil Appeal Nos.78-79 of 2002, decided on 6 December, 2007]
th

Civil Procedure Code, 1908—Order XLVII, Rule 1—Madras City Tenants

Protection Act, 1921 (As amended by Act 2 of 1996)—Sections 1 and 9—Review—Court
directed to execute sale deed of land of church—Amendment in Act whereby Section 9 of
Act cannot be given effect to land belonging to religious institution—When amended Act
came into force application under Section 9 of Principal Act filed by appellant still pending
—However, order passed by High Court in favour of appellant—Order upheld by Apex
Court—Review filed in High Court and order reversed holding respondent entitled to
exemption—Held, no illegality as it is within jurisdiction of High Court to review order—
Appeal dismissed. (Paras 8, 9, 10 and 12)
 Case law.—(2000) 6 SCC 359; (2000) 3 MLJ 616; 2005 (5) CTC 494; C.R.P. (NPD) 2758
of 1996 decided by Madras High Court (FB)—referred.
JUDGMENT
P. SATHASIVAM, J.—Challenging the order dated 20.7.2001 passed by the High Court of
Judicature at Madras in Review Application Nos. 8 and 9 of 1997 filed by the respondent herein
whereby a learned single Judge of the High Court allowed the same, the appellant has filed these
appeals.
2. The respondent herein was the owner of the suit vacant land in question. In 1959, the
suit land was leased out for five years by the respondent to the appellant herein. On 3.3.1965,
the tenancy was renewed for another period of three years. After the expiry of three years, the
respondent wanted the appellant to vacate the premises. As the appellant did not vacate, the
respondent issued a notice on 28.8.1968 demanding possession for which he sent a reply with
false and frivolous allegations. In the year 1969, the respondent filed O.S.No.218 of 1969 for
recovery of land. The appellant also filed O.S.No. 75 of 1970 as a counter blast for getting a
fresh lease document from the respondent. On 14.12.1970, O.S.No. 218 of 1969 was
compromised and O.S.No. 75 of 1970 was dismissed as not pressed. The appellant did not vacate
the suit property in spite of repeated demands by the respondent, therefore, the respondent
filed a fresh Suit i.e., O.S.No.76 of 1977 for delivery of possession. On 27.7.1978, O.S. No.76 of
1977 was decreed in favour of the respondent while O.P. No. 4 of 1977 filed by the appellant
for purchase of the land by her was erroneously dismissed and an order of eviction was passed
against the appellant by the Court of District Munsif, Palani. The Madras City Tenants Protection
Act, 1921 gives the option of purchasing the site from the landlord by the tenant in case a suit
for eviction is filed by the landlord where the tenant is the owner of the superstructure standing
thereon and if the tenant is not interested in buying the site then the landlord can buy the
superstructure or ask the tenant to remove the superstructure and seek delivery of possession.
The said Act was extended to the town of Palani in Tamil Nadu only in 1975, therefore, the
option of buying the site from the respondent became available to the appellant as the owner of
the superstructure. The Appellant filed an application O.P. No. 4 of 1977 in Suit No. 76 of 1977
for purchase of land by him which was dismissed. Against the said order, the appellant
filed A.S.No. 121 of 1978 and another A.A.O. No. 94 of 1978 against the order in O.P. No. 4 of
1977. The appellate Court allowed the appeals of the appellant directing the respondent to sell
the land to the appellant for an amount of Rs.65,092.50. Aggrieved by the said order, the
respondent filed S.A.No. 2149 of 1981 and C.R.P. No. 2204 of 1980 against the order allowing
the petition of the appellant for purchase of the suit property. The second appeal and the revision
petition filed by the respondent were dismissed by a learned single Judge of the High Court of
Madras. Against that order, the respondent filed S.L.P.(C) Nos. 5029 and 5030 of 1984 before
this Court which were dismissed. After the stay order operating from 1980 to 1985 continuously
ceased to operate, the appellant deposited the full site value. With the dismissal of the S.L.Ps by
this Court and the deposit of the full site value by the appellant, the same became final. In the
year 1985, the appellant filed an execution petition being E.P. No. 257 of 1985 for execution of
the sale deed of the land in his favour by the respondent. On the other hand, the respondent filed
an execution petition being E.P. No. 79 of 1983 for executing the compromise decree in
O.S.No.218 of 1969. Both the petitions were taken up together for disposal. The Executing Court
allowed E.P. No. 257 of 1985 filed by the appellant for execution of the sale deed and dismissed
E.P. No. 79 of 1983 filed by the respondent. Dissatisfied therewith, the respondent filed C.R.P.
No. 1445 of 1988 against the order in E.P. No. 79 of 1983 and A.A.O. No. 767 of 1989 against
the order in E.P. No. 257 of 1985. Both the petitions were heard together and the same were
dismissed by the High Court upholding the directions of the Execution Court to execute the sale
deed in favour of the appellant. On 28.10.1996, the sale deed in favour of the appellant was
executed by the Court of District Munsif, Palani. The sale deed was registered as Document No.
1908 of 1996 in the Registrar’s office. Against the order in C.R.P. No. 1445 of 1988 and A.A.O.
No. 767 of 1989, the respondent filed S.L.P.(C) Nos. 22925 and 22926 of 1996 before this Court
which were dismissed. After every thing became final with the execution and registration of the
sale deed in favour of the appellant and the dismissal of the S.L.Ps by this Court, the respondent
filed review applications being Review Application Nos. 8 and 9 of 1997 in the High Court
against the order dated 26.7.1997 passed by the High Court on the same grounds as were in
S.L.Ps. and the same were dismissed on the ground that they were not maintainable after the
dismissal of the S.L.Ps by this Court. On 7.2.1997, the appellant filed an application E.A.No. 820
of 1996 for return of the duly registered sale deed and the same was allowed. The respondent
was not a party to the said E.A. and he did not make any effort to implead himself. Against the
said order, the Registrar who was a party filed C.R.P. No. 1819 of 1997. In the said C.R.P., the
respondent filed an application being C.M.P. No. 3005 of 1998 to implead himself which
was dismissed by the High Court. The C.R.P. filed by the Registrar was dismissed and the
Registrar returned the sale deed to the executing Court. Against the order dated 16.12.1998 in the
R.A.Nos. 8 and 9 of 1997, the respondent filed S.L.P.(C) Nos. 6097 and 6098 of 1999 before this
Court. On 2.2.2001, this Court passed an order of remand of the review applications in S.L.P.(C)
Nos. 6097-6098 of 1999 because of the decision of this Court in Kunhyammed v. State of Kerala,
(2000) 6 SCC 359, holding that the summary dismissal of a special leave petition does not bar a
review petition permissible under the law. The respondent filed an application in the review
applications for producing additional documents which was allowed by a learned single Judge of
the High Court. As a result of the order of the High Court, the proceedings for return of the
registered sale deed to the appellant was dismissed by the executing Court. Aggrieved by the said
order, these appeals have been preferred by the appellant.
3. Heard Mr. M.N. Krishnamani, learned senior counsel appearing for the appellant and
Mr. P.P. Rao, learned senior counsel appearing for the respondent.
4. The only point for consideration in these appeals is whether the High Court is justified
in allowing Review Application Nos. 8 and 9 of 1997 under Order XLVII, Rule 1, C.P.C.
5. Since we have already narrated the case of both the parties in the paragraphs supra,
there is no need to traverse the same once again. Before considering the rival claims made by
both the parties, it is useful to refer the provisions under Order XLVII, Rule 1, C.P.C. relating to
Review which read as under:
“1. Application for review of judgment.—(1) Any person considering himself
aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal
has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes,
and who, from the discovery of new and important matter or evidence which, after the
exercise of due diligence was not within his knowledge or could not be produced by him at the
time when the decree was passed or order made, or on account of some mistake or error apparent
on the face of the record, or for any other sufficient reason, desires to obtain a review of the
decree passed or order made against him, may apply for a review of judgment to the Court which
passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of
judgment notwithstanding the pendency of an appeal by some other party
except where the ground of such appeal is common to the applicant and the
 appellant, or when, being respondent, he can present to the Appellate Court the
case on which he applies for the review.
Explanation.—The fact that the decision on a question of law on which the
judgment of the Court is based has been reversed or modified by the subsequent
decision of a superior Court in any other case, shall not be a ground for the
review of such judgment.”
A reading of the above provision makes it clear that review is permissible (a) from the
discovery of new and important matter or evidence which, after the exercise of due diligence
could not be produced by the party at the time when the decree was passed; (b) on account of
some mistake; (c) where error is apparent on the face of the record or is a palpable wrong; (d) any
other sufficient reason. If any of the conditions satisfy, the party may apply for a review of the
judgment or order of the Court which passed the decree or order. The provision also makes it
clear that an application for review would be maintainable not only upon discovery of a new
and important piece of evidence or when there exists an error apparent on the face of the record
but also if the same is necessitated on account of some mistake or for any other sufficient reason.
An error contemplated under the rule must be such which is apparent on the face of the record
and not an error which has to be fished out and searched. In other words, it must be an error of
inadvertence. It should be something more than a mere error and it must be one which
must be manifest on the face of the record. When does an error cease to be mere error and
becomes an error apparent on the face of the record depends upon the materials placed before the
Court. If the error is so apparent that without further investigation or enquiry, only one
conclusion can be drawn in favour of the appellant, in such circumstances, the review will lie.
Under the guise of review, the parties are not entitled re-hearing of the same issue but the issue
can be decided just by a perusal of the records and if it is manifest can be set at right by reviewing
the order. With this background, let us analyze the impugned judgment of the High Court and
find out whether it satisfy any of the tests formulated above.
6. It is the claim of the respondent herein that it is a Roman Catholic Mission and is a
religious institution within the meaning of amended provisions of The Tamil Nadu City Tenants
Protection Act, 1921 (hereinafter referred to as “the Principal Act”). The “Roman Catholic
Mission” (hereinafter “Mission” in short), in support of the above claim, filed several
documents, namely, Ex. A-1 to A-15 and also let in evidence of PW-1 and PW-2 who were
conversant with their activities. The High Court, on appreciation of those materials, arrived at a
factual conclusion that the same came under the Roman Catholic Diocese which has as its object
and maintenance of churches and hence it is a “religious institution”. Though it was contended
by the learned senior counsel appearing for the appellant herein that only certificate of
registration was produced by the Mission to substantiate its case that it is a religious institution, in
view of the categorical factual finding by the High Court based on acceptable oral and
documentary evidence, we reject the said objection. It is relevant to point out that when the
above appeals were heard on 19.01.2006 at length, this Court after finding that it would be just
and expedient to call for a finding from the trial Court as to whether the Palani Roman Catholic
Mission is a ‘religious institution’ or ‘institution of religious charity’ belonging to Hindu,
Muslim, Christian or other religion within the meaning of Section 1(f) of the Madras City
Tenants’ Protection Act, 1921, as amended by Act 2 of 1996, directed the trial Court to record a
finding on the said question after giving opportunity of adducing oral and documentary evidence
to the parties and thereupon remit its finding to this Court within a period of six months from the
date of receipt of copy of the said order. Pursuant to the said direction, this Court received a
report dated 09.08.1996 from the trial Court i.e., District Munsiff, Palani and the same was
handed over to learned counsel appearing on behalf of the parties. They were given an
opportunity to peruse the report and submit their objection, if any. The report shows that the
learned District Munsiff, after affording opportunity to both parties and after recording evidence
and relying on documents placed by both parties, arrived at the following conclusion:—
“Thus, on cumulative appraisal of the evidence on record in the context of the undisputed
averments of the proof-affidavit of the P.W.1 and P.W.2 in particularly P.W.2 with
regard to the factum of conducting the religious ceremonies, prayers and masses in the
plaintiff-Mission, this Court feels that an inescapable and irresistible conclusion can
be drawn that the plaintiff-Mission is a place of worship for the people who have faith in
the Christianity in particularly believers attached with the Roman Catholic
denomination. Therefore, in view of the finding as above, this Court holds that the Palani
Roman Catholic Mission is a religious institution in the context of the Section 1(f) of the
Madras City Tenants Protection Act, 1921 as amended by Act 2 of 1996.
In the result, on the basis of the evidence emerged on record, I hold that the Palani
Roman Catholic Mission is a religious institution within the meaning of Section 1(f)
of the Madras City Tenants Protection Act, 1921 as amended by the Act 2 of 1996.”
In view of the conclusion of the High Court as well as the report of the trial Court holding
that Palani Roman Catholic Mission-respondent herein is a religious institution within the
meaning of Section 1 (f) of the principal Act as amended by Madras City Tenants Protection Act
as amended by Act 2 of 1996. We agree with the said conclusion.
7. Now we will consider the provisions of the Principal Act as well the provisions of the
Amendment Act i.e., the Madras City Tenants’ Protection (Amendment) Act, 1994 (Tamil
Nadu Act 2 of 1996) [hereinafter referred to as “the amended Act”]. The Statement of Objects
and Reasons of the Act shows that in many parts of the City of Madras (and other Municipal
towns) dwelling houses and other buildings have from time to time been erected by tenants on
lands belonging to others, in the expectation that subject to payment of a fair ground rent they
would be left in their undisturbed possession, in spite of any agreement about duration of the
tenancy and the terms on which the buildings were to be leased. Attempts made or steps taken to
evict a large number of such tenants had shown that such expectations are likely to be defeated.
The tenants, if they were evicted, can remove the superstructure which can only be done by
pulling down the building, or claim compensation for the value of the building put up by them
and the value of any tree planted by them. As a result of such wholesale destruction, congested
parts of the city (municipal towns) would become more congested to the serious detriment of
public health. In the circumstances, it was though just and reasonable that the landlords when
they evict the tenants should pay for and take the buildings. There may however be cases where
the landlord is unwilling to eject a tenant, if he can get a fair rent for the land. The Act provides
for the payment of compensation to the tenant in case of ejectment for the value of any buildings
which may have been erected by him, or his predecessor-in-interest. It also provides for the
settlement of fair rent at the instance of the landlord, or tenant. Provision is also made to enable
the tenant to purchase the land in his occupation, subject to certain conditions.
8. Section 9 gives the right to the tenant, who has put up a superstructure to purchase
such part or extent of the land, be reasonably required for his enjoyment. Since we are concerned
about the Amended Act, there is no need to go into other provisions. The Amended Act
received the assent of the President on 5.1.1996 and published in the Tamil Nadu Government
Gazette Extraordinary Part IV, Section 2 dated 11.1.1996. By Amendment Act, the Tamil Nadu
Legislature has amended Section 1 of the principal Act and added certain provisions in sub-
section (3). The amended provisions are as follows:
“Amendment of Section 1.—In Section 1 of the Madras City Tenants’ Protection Act,
1921 (Tamil Nadu Act III of 1922), (hereinafter referred to as the principal Act), in
 sub-section (3), in the first proviso; after clause (e), the following clause shall be added,
namely:—
‘(f) by any religious institution or religious charity belonging to Hindu, Muslim,
Christian or other religion.
Explanation.—for the purpose of this clause,—
(A) “religious institution” means any-
(i) temple
(ii) math;
(iii) mosque
(iv) church; or
(v) other place by whatever name known which is dedicated to, or for the benefit of, or
used as of right by, any community or section thereof as a place of public religious
worship;
(B) “religious charity” means a public charity associated with a religious festival or
observance of religious character (including a wakf associated with a religious
festival or observance of religious character), whether it be connected with any
religious institution or not.
3. Certain pending proceedings to abate.—Every proceeding instituted by a tenant
in respect of any land owned by any religious charity belonging to Hindu,
Muslim, Christian or other religion and pending before any Court or other
authority or officer on the date of the publication of this Act in the Tamil Nadu
Government Gazette, shall in so far as the proceeding relates to any matter falling
within the scope of the principal Act, as amended by this Act, in respect of such
land, abate and all rights and privileges which may have accrued to that tenant in
respect of any such land and subsisting immediately before the said date shall in
so far as such rights and privileges relate to any matter falling within the scope of
the principal Act, as amended by this Act, cease and determine and shall not be
enforceable:
Provided that nothing contained in this section shall be deemed to invalidate any
suit or proceeding in which a decree or order passed has been executed or
satisfied in full before the said date.”
We have already mentioned that the amendment was published in the Gazette on
11.1.1996 and as per sub-section (2) of Section 1, it came into force on the date of publication. In
other words, from 11.1.1996 benefits conferred on the tenants under Section 9 of the Principal
Act have been deleted in respect of the lands belonging to religious institution or religious charity
of Hindu, Muslim, Christian or other religion. We have already referred to the finding of the High
Court holding that the respondent herein is a Roman Catholic Mission which is a “religious
institution” within the meaning of the amended provision. The Amended Act has given the
respondent herein a valuable right of exemption from the provisions of the Principal Act.
9. It is relevant to mention here that the Amendment Act No. 2 of 1996 has been upheld by
the Full Bench of the High Court in N. Sreedharan Nair v. State of Tamil Nadu, (2000) 3 M.L.J.
616 and the said decision of the Full Bench has also been approved by this Court by
dismissing C.A.Nos. 4531 of 2003 etc.etc. titled Mylapore Club v. State of T.N. & anr., 2005 (5)
CTC 494, filed against the same.
10. Both before the High Court as well as before this Court, it was contended that in view
of the orders/decisions of various Courts including this Court, the issue cannot be agitated once
again by way of review application; hence, the impugned order of the High Court is to be set
aside. Mr. P.P. Rao, learned senior counsel appearing for the respondent, has brought to our
notice that in the earlier proceedings, this Court in Civil Appeal Nos. 1055-1056 of 2001 directed
the High Court to consider the review applications afresh. In other words, by virtue of the said
order, the High Court was directed to decide the review applications on merits. In such
circumstances, the High Court was fully justified in analyzing the issue as directed by this
Court and its ultimate decision that Roman Catholic Mission is a “religious institution” cannot be
faulted with since it relied on acceptable materials in the form of oral and documentary
evidence (vide Ex. A-1 to A-15 and evidence of PW-1, PW-2). It was demonstrated that
these religious and charitable institutions were not only deprived of their legitimate income but
also their valuable properties. It was also their claim that because of the provision, namely,
Section 9 of the Act, the tenants flourished and the landlord-institutions were crippled. It was
further pointed out that in those circumstances Act No.2 of 1996 was enacted in order to
protect those religious institutions. We have already concluded that pleadings of the respondent
herein-review petitioners and various orders/judgments show that it is a “religious institution”.
As rightly observed by the High Court, the claim that the “Mission” is a “religious institution” is
apparent from the materials without any further investigation. In such circumstances, as per
Section 1(f) of the amended Act, all proceedings instituted by a tenant would abate. The amended
Act came into force from 11.1.1996 and on the question whether on the date of coming into force
of the amended Act, giving certain benefits to the religious institutions and taking away the right
of the tenant under Section 9, the High Court concluded as under:
“The Transfer C.M.A. which was a continuation of the application under Section 9 of the
Tamil Nadu City Tenants Protection Act filed by the respondent who is the tenant was
still pending. The proceedings had not attained finality. Therefore, they terminated and
they became unenforceable. On the date when the first appeal and the C.M.A. were
disposed of, tenancy granted by religious institutions were still governed by the
provisions of the Act. Now, by the introduction of Act 2 of 1996, they cease to apply,
ergo, all proceedings instituted by the tenant shall abate. All rights and privileges that
may have accrued to her cease. They come to an end and they shall not be enforceable.
The jurisdiction of the Court to decide the tenants claim ceased.”
It is clear that on the date when the amended Act came into force, the application under
Section 9 of the principal Act filed by the tenant-appellant herein was still pending. Though Mr.
M.N. Krishnamani, learned senior counsel appearing for the appellant, submitted that all
formalities were completed before coming into force of the amended Act, as pointed out earlier,
pursuant to the order of the High Court, the sale deed was executed only on 28.10.1996 whereas
the amended Act (Act No.2 of 1996) came into force on 11.1.1996 much earlier to the execution
of the sale deed, hence, the contention of learned senior counsel for the appellant is not acceptable
and we are in agreement with the conclusion arrived at by the High Court. As rightly concluded
by the High Court, the decree in O.P. No. 4 of 1977 became a nullity on and from 11.1.1996, the
Executing Court committed an error in executing the sale deed after coming into force of
amended Act. Further as rightly observed by the High Court, unless the sale deed is executed
either by the Mission or by the Court, the fruits of the decree will not be realized by the tenants
and the proceedings will come to an end only upon execution of the sale deed. Therefore, the
tenant cannot be heard to say that the proviso applies to him and that the proceedings are not
invalidated. The High Court is right in holding that the decree not having been executed by means
of a sale deed, the proceedings are deemed to be pending and, therefore, were determined with
the coming into force of the amendment Act.
11. Finally, Mr. M.N.Krishnamani placing reliance on the Full Bench decision of the
Madras High Court rendered in CRP(NPD) 2758 of 1996 titled Arulmigu Kasi Viswanathaswamy
Devasthanam v. Kasthuriammal submitted that the moment tenant deposited the amount the order
is fully satisfied. He further pointed out that as per the said decision the moment the order under
Section 9 (3) (a) is passed, it shall be construed that the proceedings got terminated and the suit
stood dismissed as per Section 9 (3) (b) of the Act. We are unable to accept the said
proposition. The relevant provisions are as follows:—
“9. (3) (a) On payment of the price fixed under clause (b) of sub-section (1) the
Court shall pass an order directing the conveyance by the landlord to the tenant
of the extent of land for which the said price was fixed. The Court shall by the
same order direct the tenant to put the landlord into possession of the remaining
extent of the land, if any, the stamp duty and registration fee in respect of such
conveyance shall be borne by the tenant.
(b) On the order referred to in clause (a) being made, the suit or proceeding shall
stand dismissed, and any decree or order in ejectment that may have been
passed therein but which has not been executed shall be vacated.”
It is clear that if the tenant complies with the order passed under Section 9 (1) (b) and
deposits the amount within the time as fixed, the Court has to pass an order directing the
conveyance by the landlord to the tenant. It is true that as per Section 9 (3) (b) on passing an
order under clause (a) the suit or proceeding shall stand dismissed. In the light of the language
used in clause (a) i.e., “conveyance” to be made by the landlord to the tenant, till the proper
document conveying title to the tenant it is presumed that the proceeding is kept pending. To put
it clear that unless the sale deed is executed by the landlord in favour of the tenant or in the
alternative by the Court on behalf of the landlord the fruits of the decree can not be realized. The
suit or proceeding will come to an end immediately on execution of sale deed either by the
landlord or by the Court on behalf of the landlord. In our case, as said earlier, the sale deed was
executed only on 28.10.1996, however the amended Act 2/96 came into force on 11.01.1996
much earlier to the execution of sale deed. The view expressed in the Full Bench decision runs
counter to the language used in the statute and we are unable to accept the same.
12. From the materials, we are satisfied that the conclusion reached by the High Court
holding that the review petitioner/respondent herein is a “religious Mission”/”institution” within
the meaning of amended provision and entitled to the benefits of amended Act. Further, if the
same is not applied to the Mission, it would result in miscarriage of justice and it had been
rightly rectified by the High Court by the impugned judgment. The benefit that has been
bestowed upon the religious institution by the Legislature cannot be ignored lightly merely
because the issue was decided by way of review applications. Inasmuch as at the relevant point of
time, the Amended Act 2 of 1996 was not enacted and not available for consideration before the
Court and also of the fact that the proceeding instituted by the tenant/appellant herein was
pending and not reached finality on the date of coming into force of the amended Act, we are
satisfied that the High Court is justified in granting the relief as provided under the amended Act
(Act No.2 of 1996) by allowing the review applications. As held earlier, if the judgment/order is
vitiated by an apparent error or it is a palpable wrong and if the error is self evident, review is
permissible and in this case the High Court has rightly applied the said principles as provided
under Order XLVII, Rule 1, C.P.C. In view of the same, we are unable to accept the
arguments of learned senior counsel appearing for the appellant, on the other hand, we are in
entire agreement with the view expressed by the High Court.
13. In the light of the above discussion and conclusion, the appeals fail and are accordingly
dismissed. No costs.
Appeals dismissed.

[2008 (1) T.N.C.J. 583 (SC)]

 SUPREME COURT
BEFORE:
A. K. MATHUR AND MARKANDEY KATJU, JJ.
M. V. THIMMAIAH AND OTHERS ...Petitioners
Versus
UNION PUBLIC SERVICE COMMISSION AND OTHERS ...Respondents
[Civil Appeal Nos.5883-5891 of 2007 (Arising out of SLP (C) Nos. 23060-23068 of 2005)
with C.A. Nos.5894-5902 of 2007 (Arising out of SLP (C) Nos. 23484-23492 of 2005), C.A.
Nos.5903-5911 of 2007(Arising out of SLP (C) Nos.23571-23579 of 2005), C.A. No.5912 of
2007 (Arising out of SLP (C) No.23852 of 2005), C.A. Nos.5913-5921 of 2007 (Arising out of
SLP (C) Nos.25764-25772 of 2005), C.A. No.5922 of 2007 (Arising out of SLP (C) No.900 of
2006), Contempt Petition No.131 of 2006 in SLP (C) Nos.23060-23068 of 2005, decided on 13th
December, 2007]
Service laws—Selection—Interference by Court—Permissibility of—Selection by
statutory selection committee—Guidelines have already been given by Commission as to
how ACRs to be assessed and how marking has to be assessed—Court can interfere only
where there is mala fide—No violation of guidelines—Hence, Court cannot interfere with
selection process—Appeal dismissed. (Paras 16, 17, 19
and 20)
Case law.—(1996) 4 SCC 64; (2005) 10 SCC 15—relied on; AIR 2003 SC 3044; (1993) 3
SCC 319; (1985) 4 SCC 417; (1981) 1 SCC 722; 2007 (3) SCALE 219; (1976) 3 SCC 583;
(1980) SCC 335; (2002) 1 SCC 749; (1973) 2 SCC 836; (1981) 4 SCC 159; 1986 (Supp) SCC
617; 1987 (Supp.) SCC 401; (1988) 2 SCC 242; (1983) 3 SCC 241; (1990) 1 SCC 305; 1992
Supp. (2) SCC 481; (1993) 1 SCC 17; 1994 Supp (1) SCC 454; (1997) 1 SCC 280; (1997) 9 SCC
151; (1998) 3 SCC 694; (2004) 6 SCC 786; (2006) 6 SCC 395—referred.
JUDGMENT
A.K.MATHUR, J.—Leave granted in all the special leave petitions.
2. All these appeals arise against the common order dated 6.10.2005 passed by the
Division Bench of the High Court of Karnataka while disposing of a bunch of petitions
arising out of the common order dated 4.10.2004 passed by the Central Administrative Tribunal,
Bangalore Bench (hereinafter to be referred to as the Tribunal). The Tribunal by the aforesaid
order set aside the recommendations of the Selection Committee to fill up 8 vacancies
belonging to the non-State Civil Service Officers of Government of Karnataka to the Indian
Administrative Service (IAS) of Karnataka cadre on the ground of mala fides, arbitrariness
and also on the ground that the Selection Committee without application of mind had
awarded marks to the selected candidates in a discriminatory manner. It was also held by the
Tribunal that the Selection Committee was not properly constituted as per the provisions of
Regulation 3 of the Indian Administrative Service (Appointment by Promotion) Regulations,
1955 (hereinafter to be referred to as the Regulations of 1955). Out of the bunch of petitions
which were filed before the Karnataka High Court, two petitions were filed by the Union
Public Service Commission (hereinafter to be referred to as the Commission), first is that the
Chairman of the Selection Committee, Shri Subir Dutta, Member, U.P.S.C. against whom the
allegation of mala fide was leveled and it was upheld by the Tribunal, second one challenging the
finding of the Tribunal that the Selection Committee was not properly constituted and the
Selection Committee acted arbitrarily and in a discriminatory manner and awarded marks to
the selected candidates. Another batch of petitions (seven in number) was filed by the selected
candidates whose names were recommended for appointment to the I.A.S. and two writ petitions
were filed by the persons who were not short-listed by the Screening Committee. Hence, all these
petitions were clubbed together and were disposed off by the common order as aforesaid.
3. Learned Division Bench of the Karnataka High Court after hearing all the parties
found that the allegation of mala fide leveled against Shri Subir Dutta, Member of the
Commission was not well founded, that the Selection Committee was properly constituted and
the Committee did not act in arbitrary or discriminatory manner while awarding the marks to the
selected candidates. Hence the order of the Tribunal was set aside. Aggrieved against this order
passed by the Division Bench of the Karnataka High Court dated 6.10.2005, the present appeals
were filed by the aggrieved persons. Hence, the appeals have now finally come up before us for
disposal.
4. The appointment to the I.A.S. from the State cadre can be made other than the State
Civil Service in case an incumbent is having outstanding merit and ability and holds a
gazetted post in a substantive capacity and has completed not less than eight years of service in
the State Government on the first day of January of the year in which his case is being considered
in any post which has been declared equivalent to the post of Deputy Collector in the State Civil
Service. The candidates shall not exceed five times the posts proposed to be filled up during the
year. An incumbent should not have attained the age of 54 years, as per the Regulations of 1997.
Regulation 5 says that a list shall be prepared of the suitable candidates by the Committee after
scrutiny of service records and personal interview. The Committee has been defined in
Regulation 2(i)(a) which means a Committee as constituted under Regulation 3 of
Regulations, 1955. As per the Regulations, the Committee shall be headed by the Chairman of the
Commission or if the Chairman fails to attend, by any other Member of the Commission.
The Chairman or the Member of the Commission shall preside over the meetings. Regulation
3(3) further says that the absence of a member, other than the Chairman or Member of the
Commission, shall not invalidate the proceedings of the Committee if more than half the
members of the Committee had attended the meeting. Regulation 3(3) which will have relevant
bearing reads as under:
“3(3) The absence of a member, other than the Chairman or Member of the
Commission, shall not invalidate the proceedings of the Committee if more
than half the members of the Committee had attended the meetings.”
Apart from the Member of the Commission, as per the schedule referred to for the State,
the following members shall also be the members of the Committee which includes the Chief
Secretary to the Government; Additional Chief Secretary to the Government; Principal Secretary
to Government, Revenue Department; Senior most Divisional Commissioner and two nominees
of the Central Government. This Selection Committee after scrutiny of the records and calling for
personal interview will prepare a list and recommend the names of the suitable candidates to
the State Government concerned, which shall forward to the Commission for its approval along
with the records of all members of the State Civil Service included in the list; the records of all
members of the State Civil Service who are proposed to be superseded by the recommendations
made in the list and the observations, if any, of the State Government on the recommendations of
the Committee to the Central Government and the Central Government shall also forward their
observations, if any, on the recommendations of the Committee to the Commission. Thereafter,
the Commission as per Regulation 7 of 1997 shall consider the list prepared by the Committee;
observations, if any, of the Central Government or the State Government concerned, on the
recommendations of the Committee and approve the list subject to the provisions of Regulation
7(2) of the Regulations, 1997. As per Regulation 7(2); if the Commission considers it necessary
to make any changes in the list received from the State Government, the Commission shall
inform the State Government and the Central Government of the changes proposed and after
taking into account these comments, if any, of the State Government and the Central
Government, may approve the list finally with such modification, as may in its opinion be just
and proper. That list shall be forwarded to the Central Government and the Central Government
shall make appointment on the basis of the list but if the Central Government is of the opinion
that it is necessary or expedient so to do in the public interest may not appoint any person and it is
within the domain of the Central Government and it need not record its reasons or communicate
the same to the Commission. In this scheme of the Rules, the factual controversy shall be
examined.
5. In the present case eight vacancies were advertised and the process of recruitment to
these vacancies was undertaken. The State Government constituted a Screening Committee for
short-listing of the officers not belonging to the State Civil Service. The Committee was headed
by Shri B.S.Patil, Chief Secretary to the Government and four other Members who were the
Secretaries to the Government of Karnataka. As per Circular dated 30.3.2002 the Government
had directed various Heads of the department to send a list sick of eligible suitable officers who
fulfil the aforesaid eligibility criteria. In pursuance of this circular 79 names were received from
different departments and their cases were scrutinized by the Screening Committee with
reference to their records for short-listing the names which could be sent to the Commission for
selection to the I.A.S. cadre. Since the number of persons to be considered shall not exceed five
times the vacancies proposed to be filled up in that year, therefore, as against eight vacancies 40
candidates were to be short-listed. The Screening Committee short-listed 40 candidates on the
basis of the service records out of the 79 candidates whose names were received from different
Departments. Besides, the name of one more person was sent to the Selection Committee for
selection because of the order passed by the Tribunal. Thus, in total names of 41 persons were
sent for consideration against eight vacancies. The Selection Committee after scrutinizing the
cases and after interviewing 39 candidates selected eight candidates and two candidates
remained absent. Though a petition was filed before the Tribunal by one person who was not
selected and stay order was obtained that was challenged before the High Court and the High
Court allowed the writ petition and vacated the interim order passed by the Tribunal staying the
selection and permitted the selection to be taken to its logical conclusion subject to the condition
that the order passed by the Tribunal shall be subject to challenge before this Court. Then one
special leave petition was filed before this Court against the order passed by the Division Bench
vacating the stay order passed by the Tribunal that special leave petition was dismissed on
23.7.2004. Thereafter, the matter was finally heard by the Tribunal and the Tribunal set aside the
selection of eight selected candidates of the Karnataka cadre to the I.A.S. The Tribunal was of the
view that the Selection Committee was not properly constituted as per the provisions of
Regulation 3 of the Regulations, 1955 and the Tribunal further took the view that the
selection of eight candidates stood vitiated as a result of mala fide on the part of Shri B.S.Patil,
Chief Secretary and Shri Subir Dutta, Member of the Commission who was the Chairman of the
Selection Committee. It was further observed by the Tribunal that the selection was not fair and
selection was being made in an arbitrary manner. However, the name of two persons who were
not short-listed was rejected by the Tribunal on the ground that there was no arbitrariness for their
non-inclusion. That order was challenged by them before the High Court by filing writ
petition. The Division Bench of the High Court after examining the matter found that all the
grounds raised by the writ petitioners were not sustainable.
6. The controversy involving the selection could be divided into two parts; (i) mala fide
and (ii) the constitution of the Selection Committee and the selection of the candidates. So far as
the first argument with regard to mala fide is concerned, Shri Subir Dutta was not impleaded as a
party, but subsequently, he was impleaded as a party respondent. The first ground which was
alleged is that the select list is not only arbitrary but also a product of favouritism shown to the
selected candidates notwithstanding the fact that the appellants had outstanding records but their
names were not included solely for the reason that the Selection Committee was headed by Shri
Subir Dutta, Member of the Commission and Shri B.S.Patil, the Chief Secretary to the
Government being one of the constituents of the Committee being interested in the candidature
of Respondents 5 to 12 before the Tribunal and as a result of such selection, their candidatures
have not been considered in a proper and objective manner and they did not receive a fair
treatment from the Selection Committee. It is alleged that the selection was vitiated on the
ground that Shri Subir Dutta, who was the Chairman of the Selection Committee was appeased
with the piece of land in the city of Bangalore i.e., he was allotted a site in Bangalore irrespective
of the fact that whether he was eligible or not. It was submitted that during the process of
selection and on the basis of interview, a site has been bartered away in favour of Shri Subir
Dutta and in that the former Chief Secretary to the Government, Shri B.S.Patil has shown a
great interest. Therefore, on account of this favouritism was shown to respondents 5 to 12 before
the Tribunal, the applicants before the Tribunal have been denied their legitimate selection and
therefore, in sum total, the allegation of mala fide against Shri Subir Dutta is that a site was
allotted to him to appease him and secure favourable selection in respect of Respondents 5 to 12.
The High Court in order to verify the element of truth sent for the original file relating to the
allotment of residential site to Shri Subir Dutta from Bangalore Development Authority wherein
it is noted that on 11.4.2003 a note was placed by Shri B.S.Patil, the Chief Secretary, to the Chief
Minister making a request that a site be allotted to Shri Subir Dutta as he has attachment to the
State of Karnataka and he has been helpful both for selecting Bangalore for bi-annual Air Shows
and for grant of defence land for the purpose of road network in Bangalore. For that on 17.4.2003
the Chief Minister approved the proposal of the Chief Secretary for allotment of a
residential site to Shri Subir Dutta who was at that time the Defence Secretary. After that
necessary formalities for allotment was undertaken. On 17.4.2003 when a site was allotted to
Shri Subir Dutta, he was the Defence Secretary to Government of India and he was not a Member
of the Commission and he became a Member of the Commission only on 1.7.2003 and assumed
charge on 4.7.2003 as Member of the Commission. The selection took place in November, 2003.
Therefore, the Division Bench of the High Court rejected the allegation of mala fide to be far-
fetched. We gave our thoughtful consideration to this allegation. There is no correlation with this
selection. It is too far fetched to connect with this case that Shri Subir Dutta who was given the
residential site in lieu of his service rendered to the State of Karnataka, would necessarily favour
the candidates. The short-listing was done by the Screening Committee headed by the Chief
Secretary along with four Secretaries of the State and there was no mala fide intention in
short-listing of these persons, now to think that just because Shri Dutta was allotted some land so
that necessarily he would favour these selected candidates only is nothing but figment of
imagination of the appellants. To connect the selection with the previous allotment of land to
Shri Subir Dutta has hardly any connection between the two. In the selection process Shri Subir
Dutta was one of the Members along with others. All the officers who were to be selected
belonged to Karnataka State and it is not specific that any of the selected candidates has in any
manner actively associated with the allotment of land to Shri Subir Dutta. It is too remote to
connect the selection of these candidates with the allotment of the site to Shri Subir Dutta. We
do not find any connection that any of the selected candidates has in any manner directly or
indirectly associated himself in the allotment of the site in favour of Shri Subir Dutta. As it
appears from the file which was summoned by the High Court that the proposal was mooted out
by the Chief Secretary and it was approved by the Chief Minister. Therefore, there appears no
direct or indirect connection with the selection of candidates and allotment of residential site in
favour of Shri Subir Dutta. As such, the allegations are too far-fetched to render the entire
selection invalid on the ground of so called mala fide. This is purely flight of imagination and we
strongly reject the allegation of mala fide against Shri Subir Dutta, the Chairman of the Selection
Committee.
7. So far as the allegation of mala fide against Shri B.S.Patil is concerned, he was not
impleaded as a party. Therefore, the allegation of mala fide could not be entertained by the
Tribunal. As such, the allegation of mala fide against Shri B.S.Patil could not be taken into
consideration and rightly so, by the High Court as well as by the Tribunal. The allegation of
mala fide is very easy to be levelled and it is very difficult to substantiate it, specially in the
matter of selection or whoever is involved in the decision making process. People are prone to
make such allegation but the Courts owe a duty to scrutinize the allegation meticulously because
the person who is making the allegation of animous sometimes bona fidely or sometimes mala
fidely due to his non-selection. He has a vested interest. Therefore, unless the allegations are
substantiated beyond doubt, till that time the Court cannot draw its conclusion. Therefore, we
reject the allegation of mala fide.
8. Now, coming to the constitution of the Selection Committee and the selection
undertaken by the Committee, so far as the constitution of the Selection Committee is concerned,
one of the submissions was that the Divisional Commissioner who was supposed to be the
Member of the Selection Committee was not there. Therefore, the whole selection stood vitiated.
So far as this argument is concerned, suffice it to say that the post of Divisional Commissioner
was abolished by the State Government with effect from 1.4.2003 and the said fact was informed
to the Commission about the abolition of the post and it was requested to suitably amend the
schedule as per Regulation 3 of the Regulations of 1955. Since the post of Divisional
Commissioner was not in existence and the same having been abolished there was no question
of including the Divisional Commissioner as a Member of Selection Committee specially when
the Government of Karnataka has already informed the Commission to amend the schedule.
When the post of Divisional Commissioner was not there that would not render the selection or
would not make the Selection Committee non-functional as out of the seven Members six
Members participated in the Selection Committee and Regulation 3 clearly says that absence of
a Member, other than the Chairman or Member of the Commission, shall not invalidate the
proceedings of the Committee if more than half the Members of the Committee had attended its
meetings. Therefore, this contingency has already been taken care by Regulation 3(3) that in case
any Member is unable to participate in the selection process except the Member of the
Commission and more than half of the members have attended the meeting, then the proceedings
of the Committee shall not vitiate in the absence of such Member. As such the Selection
Committee in the absence of Divisional Commissioner cannot be said to be not properly
constituted. More so there is no prejudice caused to the appellants as out of the seven
Members, six Members of the Selection Committee were there which is more than 50%. As
such, nothing turns on this. We hold that the Selection Committee was properly constituted.
9. Now, comes the question with regard to the selection of the candidates. Normally,
the recommendations of the Selection Committee cannot be challenged except on the ground of
mala fides or serious violation of the statutory Rules. The Courts cannot sit as an appellate
authority to examine the recommendations of the Selection Committee like the Court of appeal.
This discretion has been given to the Selection Committee only and Courts rarely sit in Court of
appeal to examine the selection of the candidates nor is the business of the Court to examine each
candidate and record its opinion. In this connection, learned senior counsel for the appellants has
taken us through various following decisions of this Court:
(i) AIR 2003 SC 3044, Surya Dev Rai v. Ram Chander Rai & Ors.
(ii) (1993) 3 SCC 319, P.M.Bayas v. Union of India & Ors.
(iii) (1985) 4 SCC 417, Ashok Kumar Yadav & Ors. v. State of Haryana & Ors. etc.
(iv) (1981) 1 SCC 722, Ajay Hasia & Ors. v. Khalid Mujib Sehravardi & Ors.
(v) 2007 (3) Scale 219, Union Public Service Commission v. S.Thiagarajan & Ors.
Mr.P.P.Rao, learned senior counsel appearing for the private respondents invited our
attention to the following decisions of this Court.
 (i) (1976) 3 SCC 583, Dr.G.Sarana v. University of Lucknow & Ors.
(ii) (1980) @ SCC 355, Mrs. Kunda S.Kadam v. Dr.K.K.Soman & Ors.
(iii) (2002) 1 SCC 749, Ashok Nagar Welfare Association & anr. v. R.K.Sharma & Ors.
Learned Senior Counsel for the Commission invited our attention to the following
decisions of this Court.
(i) (1973) 2 SCC 836, Union of India v. Mohan Lal Capoor & Ors.
(ii) (1981) 4 SCC 159, Lila Dhar v. State of Rajasthan & Ors.
(iii) (1985) 4 SCC 417, Ashok Kumar Yadav & Ors. v. State of Haryana & Ors. etc.
(iv) 1986 (Supp) SCC 617, R.S.Dass v. Union of India & Ors.etc.
(v) 1987 (Supp) SCC 401, State of U.P. v. Rafiquddin & Ors. etc.
(vi) (1988) 2 SCC 242, Union Public Service Commission v. Hiranyalal Dev & Ors. etc.
(vii) (1983) 3 SCC 241, Mehmood Alam Tariq & Ors. v. State of Rajasthan & Ors.
(viii) (1990) 1 SCC 305, Dalpat Abasaheb Solunke & Ors. v. Dr.B.S.Mahajan & Ors.
(ix) 1992 Supp. (2) SCC 481, National Institute of Mental Health and Neuro
Sciences v. Dr.K.Kalyana Raman & Ors.
(x) (1993) 1 SCC 17, Indian Airlines Corporation v. Capt. K.C.Shukla & Ors.
(xi) (1993) 3 SCC 319, P.M.Bayas v. Union of India & Ors. etc.
(xii) 1994 Supp. (1) SCC 454, C.P.Kalra v. Air India through its Managing
Director, Bombay & Ors.
(xiii) (1997) 1 SCC 280, Anil Katiyar (Mrs.) v. Union of India & Ors.
(xiv) (1997) 9 SCC 151,All India State Bank Officers Federation & Ors. v. Union of India
& Ors. Etc.
(xv) (1998) 3 SCC 694, Union of India & Anr. v. N.Chandrasekharan & Ors.
(xvi) (2004) 6 SCC 786, Inder Parkash Gupta v. State of J & K & Ors.
(xvii) (2006) 6 SCC 395, K.H.Siraj v. High Court of Kerala & Ors.
10. Keeping in view the ratio laid down by this Court in several decisions, now we shall
examine the argument of learned senior counsel for the appellants which had been addressed. But
we may at the very outset observe that the Court while considering the proceedings of the
Selection Committee does not sit in a court of appeal. Courts have limited scope to interfere,
either selection is actuated with mala fide or statutory provisions have not been followed. In the
present case, 39 candidates were examined by the Selection Committee for being recommended
for appointment to the I.A.S. The selection process took place between 24.11.2003 and
28.11.2003 whereby the Selection Committee scrutinized the service records of the individual
candidates and interviewed them and the Selection Committee selected those candidates who
were found to be having outstanding merit and ability. The Commission has fixed 50 marks for
scrutiny of the service records and 50 marks were allotted for interview. It was also decided by
the Commission that the candidates would be eligible for selection only if they secure 50% marks
in each of the two components i.e., 25 marks in the scrutiny of the service records and 25 marks
in the interview. The Commission has further laid down the norms for awarding marks for the
scrutiny of service records. 10 marks are awarded to a candidate if on an assessment of service
record he was found to be outstanding, 8 marks if the service record was found to be very good
and 5 marks if it was good. Candidates who have failed to secure 25 marks in the interview were
not held to be qualified. Similarly, the candidates who failed to secure 25 marks on the basis of
the service records were also not held to be eligible. However, on facts no person was rejected on
the ground that he failed to secure 25 marks either on the basis of the service records or on the
basis of interview. The Tribunal while scrutinizing the records sent by the Selection Committee
set aside the selection of eight candidates namely Sarvashri Anwar Pasha and K.Ramanna Naik,
who according to the Tribunal were wrongly selected. The block period is five years for which
the confidential records of the candidates were scrutinized by the Selection Committee i.e., from
1997-98 to 2001-02. It is alleged that the confidential report of Shri Anwar Pasha for the year
1998-99 was written on 14.6.2002 and for the year 1999-2000 was written on 15.6.2002. It is
further alleged that these confidential reports were written beyond the time limit prescribed by
Rule 8 of the Karnataka Civil Services (Performance Reports) Rules, 1994 (hereinafter to be
referred to as the ‘Rules of 1994’) and the same could not have been looked into by the Selection
Committee. Therefore, the selection of Shri Anwar Pasha was invalid. It was found by the
Selection Committee that the Annual Confidential Reports of this Officer for these two years
were not written within the time limit prescribed as required under Rule 8 of the Rules of 1994.
But it was pointed out that Rule 8 of the Rules of 1994 was amended in 1999 and the time limit
prescribed was done away with retrospective effect. It was provided as per clause (b) of Rule 5 of
the amending Rules of 1999 that the reports written or reviewed or accepted in accordance
with the 1994 Rules as amended in the year 1999 shall be deemed to be valid for the purpose of
that rule. But in view of the retrospective amendment of the Rules of 1999, the time limit having
been done away with the reports could have been taken into consideration but it was further
pointed out that the Rules of 1994 were repealed in 2000 and the provisions of Karnataka Civil
Services (Performance Reports) Rules, 2000 (hereinafter to be referred to as the ‘Rules of 2000’)
came into force. Rule 13 of the Rules of 2000 provided that the repeal shall not affect the
previous operation of the 1994 Rules or anything duly done or suffered there under or affect
any right, liability or obligation acquired, accrued or incurred under those Rules. Therefore, so far
as the annual confidential reports in respect of Shri Anwar Pasha which were written after the
period of two years should not have been taken into consideration by the Selection Committee,
does not survive because the Rules of 2000 repealed the Rules of 1994 and consequential
amendment of Rules of 1999 was done away with. Therefore, the reports for the years 1998-99
and 1999-2000 cannot be taken away and these two ACRs cannot be ignored and it has been
rightly not ignored by the Selection Committee. More so, if the ACRS are not written or
reviewed, then the incumbent is not responsible for it and why should he suffer on account of
that. The authority who is under obligation to complete the formalities having failed to do so till
the lapse of time why the incumbent should be punished. We fail to appreciate the submissions
of the parties before the Tribunal and the view taken by the Tribunal also. It was also pointed
that the operation of the Rules of 1999 was stayed by the Tribunal, that may be so. But even
thereafter also when the Rules of 2000 have repealed the Rules of 1994, then what turns on the
stay order granted by the Tribunal and we cannot hold the incumbent responsible for it and
deprive him the due consideration if there is failure on the part of the officers to discharge their
duties in writing the ACRs, the incumbent should not be allowed to suffer. Therefore, we are of
opinion that it is not a case in which there was any statutory breach of rules committed by the
Selection Committee in taking into consideration the ACRs of Shri Anwar Pasha. In the case of
another candidate i.e., Shri K.Ramanna Naik, his confidential reports for the years 2000-2001 and
2002-2002 were not written in time in terms of Rule 8 of the Rules of 1994. Therefore,
special reports were obtained, that too is also covered by the Karnataka Civil Services
(Performance Reports) (Amendment) Rules, 1996. Rule 11-A says that when performance reports
in respect of officers are not available for one or more years, the appointing authority, for the
reasons to be recorded in writing, may direct the concerned reporting officer or the
reviewing authority to prepare and submit the report within a specified time for the entire period
or for each year for which the report was not written. There again the question is failure on the
part of the reporting officer or the reviewing authority not writing the report of the officer for
which the officer cannot be made to suffer. Therefore, in this background, provisions have been
made for special reports and in the administrative jurisprudence special reports can be sought for
in respect of any officer whenever his case comes for consideration and if the Selection
Committee wants to have the up-to-date report of that incumbent. It is the established
practice to call for such kind of special reports. The idea is that for not reporting the annual
confidential reports of the incumbent, why the incumbent should be made to suffer. Therefore,
the Selection Committee or the concerned authority can always ask for the annual confidential
reports which were not written for a particular year by the reporting authority or by the reviewing
authority or in some cases it can also seek a special report. Such practice cannot be said to be
unusual practice in administrative jurisprudence. In the present case, it appears that a special
report in respect of Sh. K. Ramanna Naik was obtained and that was considered by the Selection
Committee. Therefore, this procedure adopted by the Selection Committee cannot be found to
be arbitrary or in any way discriminatory. Consideration of both these officers cannot be
faulted on that ground.
11. It is also contended that the marking given by the Selection Committee was arbitrary.
The grievance was that confidential report of Shri S.Daya Shankar for the year 2000-2001 was
not available and in case of Sri R. Rramapriya, the confidential report for the year 1997-98 was
not available. Yet the reports of Shri S.Daya Shankar was assessed to be outstanding and Shri R.
Ramapriya was assessed to be very good without there being any basis for it. This was found by
the Tribunal to be patently arbitrary. It is the selection process and what prevailed with the
Committee after review of the annual confidential reports of all these officers cannot be dilated
in writing. When the Selection Committee sits and considers the candidature of both the officers
and in case of both the officers, looking at the 5 years annual confidential reports, one is found to
be over all outstanding and the other is found to be over all very good, this marking of the
Selection Committee cannot be interfered with in extraordinary jurisdiction or even by the
Tribunal. We fail to understand how the Tribunal can sit as an appellate authority to call for the
personal records and constitute selection committee to undertake this exercise. This power is not
given to the Tribunal and it should be clearly understood that the assessment of the Selection
Committee is not subject to appeal either before the Tribunal or by the Courts. One has to give
credit to the Selection Committee for making their assessment and it is not subject to appeal.
Taking the over all view of the ACRs of the candidates, one may be held to be very good and
another may be held to be good. If this type of interference is permitted then it would virtually
amount that the Tribunals and the High Courts started sitting as Selection Committee or act as an
appellate authority over the selection. It is not their domain, it should be clearly understood, as
has been clearly held by this Court in a number of decisions. Our attention was invited to a
decision of this Court in R.S.Dass (supra) [1986 (Supp.) SCC 617] wherein at paragraph 28 it
was held as follows:
“It is true that where merit is the sole basis of promotion, the power of selection becomes
wide and liable to be abused with less difficulty. But that does not justify presumption
regarding arbitrary exercise of power. The machinery designed for preparation of
Select List under the regulations for promotion to All India Service, ensures object and
impartial selection. The Selection Committee is constituted by high ranking responsible
officers presided over by Chairman or a Member of the Union Public Service
Commission. There is no reason to hold that they would not act in fair and impartial
manner in making selection. The recommendations of the Selection Committee are
scrutinized by the State Government and if it finds any discrimination in the selection it
has power to refer the matter to the Commission with its recommendations. The
 Commission is under a legal obligation to consider the views expressed by the State
Government along with the records of officers, before approving the Select List. The
Selection Committee and the Commission both include persons having requisite
knowledge, experience and expertise to assess the service records and ability to adjudge
the suitability of officers. In this view we find no good reasons to hold that in the
absence of reasons the selection would be made arbitrary. Where power is vested in high
authority there is a presumption that the same would be exercised in a reasonable manner
and if the selection is made on extraneous considerations, in arbitrary manner
the courts have ample power to strike down the same and that is an adequate safeguard
against the arbitrary exercise of power.”
12. Our attention was invited to a decision of this Court in Union Public Service
Commission v. Hiranyalal Dev & Ors etc., (1988) 2 SCC 242, wherein it was held as follows:
“The mere fact that the Selection Committee erred in taking into account the non-existent
adverse remarks does not necessarily mean that the respondent should have been
categorized or considered as very good vis-a-vis others who were also in the field of
choice. How to categorize in the light of the relevant records and what norms to apply in
making the assessment are exclusively the functions of the Selection Committee. This
function had to be discharged by the Selection Committee by applying the same norm
and tests and the selection was also to be made by the Selection Committee as per the
relevant rules. The powers to make selection were vested unto the Selection
Committee under the relevant rules and the Tribunal could not have played the role
which the Selection Committee had to play by making conjectures and
surmises. The proper order for the Tribunal to pass under the circumstances was to direct
the Selection Committee to reconsider the merits of the respondent vis-a-vis the official
who was junior to him. The jurisdiction of the Supreme Court under Article 136 in this
respect is, however, wider and cannot be equated with that of the Tribunal.”
13. Our attention was invited to a decision of this Court in Dalpat Abasaheb Solunke &
Ors. v. Dr.B.S.Mahajan & Ors., (1990) 1 SCC 305, wherein it was observed as follows:
“It is not the function of the court to hear appeals over the decisions of the Selection
Committees and to scrutinize the relative merits of the candidates. Whether a
candidate is fit for a particular post or not has to be decided by the duly constituted
Selection Committee which has the expertise on the subject. The court has no such
expertise. In the present case the University had constituted the Committee in due
compliance with the relevant statutes. The Committee consisted of experts and it
selected the candidates after going through all the relevant material before it. In sitting
in appeal over the selection so made and in setting it aside on the ground of the so called
comparative merits of the candidates as assessed by the court, the High Court went wrong
and exceeded its jurisdiction.”
14. Similarly in National Institute of Mental Health and Neuro Sciences v.
Dr.K.Kalyana Raman & Ors., 1992 Supp. (2) SCC 481, this Court held that the expert committee
finding should not be lightly interfered. It was held as follows :
“The function of the Selection Committee is neither judicial nor adjudicatory. It is purely
administrative. Where selection has been made by the assessment of relative merits of
rival candidates determined in the course of the interview of candidates possessing the
required eligibility and there is no rule or regulation brought to the notice of the Court
requiring the Selection Committee to record reasons, the Selection Committee is
under no legal obligation to record reasons in support of its decision of selecting one
candidate in preference to another. Even the principles of natural justice do not
 require an administrative authority or a Selection Committee or an examiner to record
reasons for the selection or non-selection of a person in the absence of statutory
requirement.”
15. Our attention was invited to a decision of this Court in P.M.Bayas v. Union of India &
Ors., (1993) 3 SCC 319. In this case with regard to the IAS (Recruitment) Rules, 1954 which
contemplated that special cases from among persons and special circumstances occurring in the
rules could justify the selection of the incumbents or not, in that context, their Lordships held as
follows:
“We are satisfied that there were ‘special circumstances’ before the State Government to
make recruitment under the Regulations. In the face of clear pleadings on the record the
Tribunal was not justified in holding that there was no material on the record to show the
existence of ‘special circumstances’. The Tribunal was wholly unjustified in asking the
Central Government to show the existence of ‘special circumstances’ in terms of Rule
8(2) of the Rules. As interpreted by us the scheme of the Rules and the Regulations
clearly show that it is the State Government which has to be satisfied regarding the
existence of ‘special circumstances’.”
16. Our attention was invited to a decision of this Court in Anil Katiyar (Mrs.) v. Union of
India & Ors., (1997) 1 SCC 280, it was observed as follows:
“The question is whether the action of the DPC in grading appellant as ‘very good’
can be held to be arbitrary. Shri G.L.Sanghi, the learned Senior Counsel appearing for the
Union Public Service Commission, has placed before us the confidential procedure
followed by the DPCs in the Union Public Service Commission for giving overall
gradings, including that of ‘outstanding’, to an officer. Having regard to the said
confidential procedure which is followed by the Union Public Service Commission, we
are unable to hold that the decision of the DPC in grading the appellant as ‘very good’
instead of ‘outstanding’ can be said to be arbitrary. No ground is, therefore, made out for
interference with the selection of Respondent 4 by the DPC on the basis of which he has
been appointed as Deputy Government Advocate. But, at the same time, it must be
held that the Tribunal was in error in going into the question whether the appellant had
been rightly graded as ‘outstanding’ in the ACRs for the years 1990-91 and 1991-92. The
observations of the Tribunal that out of the two ‘outstanding’ gradings given to the
appellant one ‘outstanding’ grading does not flow from various parameters given
and the reports entered therein, cannot, therefore, be upheld....”
Therefore, in view of catena of cases, Courts normally do not sit in the court of appeal to
assess the ARCs and much less the Tribunal can be given this power to constitute an independent
Selection Committee over the statutory Selection Committee. The guidelines have already been
given by the Commission as to how the ACRs to be assessed and how the marking has to be
made. These guidelines take care of the proper scrutiny and not only by the Selection
Committee but also the views of the State Government are obtained and ultimately the
Commission after scrutiny prepares the final list which is sent to the Central Government for
appointment. There also it is not binding on the Central Government to appoint all the persons as
recommended and the Central Government can withhold the appointment of some persons so
mentioned in the select list for reasons recorded. Therefore, if the assessment of ACRs in respect
of Shri S.Dayashankar and Shri R.Ramapriya should have been made as “outstanding” or “very
good” it is within the domain of the Selection Committee and we cannot sit in the Court of
appeal to assess whether Shri R.Ramapriya has been rightly assessed or Shri Dayashankar has
been wrongly assessed. The overall assessment of ACRs of both the Officers were taken; one was
found to be “outstanding” and the second one was found to be “very good”. This assessment
cannot be made subject of Courts or Tribunal’s scrutiny unless actuated by mala fide.
 17. In the case of Shri S.B.Kolhar, Shri R.S.Phonde and Shri Puttegowda, the assessment
of the reporting officers and the reviewing officers in the State have been found to be
“outstanding”. But the Selection Committee downgraded the assessment to “very good” and
this has provided grounds to the Tribunal to interfere with the selection of others. The Selection
Committee normally abides by the assessment made by the reporting officer and the reviewing
authority. But the Selection Committee is not powerless. After reviewing the candidates’
performance, the Selection Committee can certainly make its own assessment. The guidelines
which have been issued by the Commission also enables the Selection Committee to assess the
remarks made by the reporting officer or the reviewing officer and after taking into consideration
various factors like the meritorious work done or any punishment or adverse remarks made or
subsequently expunged on representation can review the assessment about the candidates. Such
review of the assessment is fully within the competence of the Selection Committee and in this
connection the observations of this Court may be relevant in Ramanand Prasad Singh & Anr. v.
Union of India & Ors. Etc., (1996) 4 SCC 64, which reads as under :
“The Committee applies its mind to the service records and makes its own assessment of
the service records of the candidates marking them as outstanding, very good, good
and so on. The selection Committee does not necessarily adopt the same grading which is
given by the Reporting/ Reviewing Officer in respect of each of the candidates. In fact
the Selection Committee makes an overall relative assessment of the confidential report
dossiers of the officers in the zone of consideration. Thus, it does not evaluate the
confidential report dossier of an individual in isolation. It is after this comparative
assessment that the best candidates are put in the Select List.”
18. Our attention was invited to a decision of this Court in U.P.S.C. v. K.Rajaiah & Ors.,
(2005) 10 SCC 15, wherein it has been held as follows:
“That being the legal position, the Court should not have faulted the so-called down
gradation of the first respondent for one of the years. Legally speaking, the term
‘downgradation’ is an inappropriate expression. The power to classify as ‘outstanding’,
‘very good’, ‘good’ and ‘unfit’ is vested with the Selection Committee. That is a function
incidental to the selection process. The classification given by the State Government
authorities in the ACRs is not binding on the Committee. No doubt, the Committee is by
and large guided by the classification adopted by the State Government but, for good
reasons, the Selection Committee can evolve its own classification which may be at
variance with the gradation given in the ACRs. That is what has been done in the instant
case in respect of the year 1993-94. Such classification is within the prerogative of the
Selection Committee and no reasons need be recorded, though it is desirable that in a case
of gradation at variance with that of the State Government, it would be desirable to
record reasons. But having regard to the nature of the function and the power confided to
the Selection Committee under Regulation 5(4), it is not a legal requirement that reasons
should be recorded for classifying an officer at variance with the State Government’s
decision.”
Therefore, the view taken by the High Court is correct that it is always within the power of
the Selection Committee to record its own assessment about the selection which may be at
variance with that of the reporting officer or reviewing officer.
19. It was also pointed out that in the case of Shri N. Sriraman and Shri K.Ramana Naik,
the Selection Committee downgraded their reports from “outstanding” to “very good” yet they
were selected. Similar is the case with Sri K.L.Lokanatha who has not been selected. Likewise
the Selection Committee upgraded the assessment for the year 2001-02 from “very good” to
“outstanding” yet he could not be selected. Therefore, this is also the process of selection and the
Selection Committee constituted by the Commission and headed by the Member of the
Commission, we have to trust their assessment unless it is actuated with malice or apparent
mistake committed by them. It is not in the case of pick and choose, while selection has been
made rationally. The selection by expert bodies unless actuated with malice or there is apparent
error should not be interfered with. Lastly, the High Court considered the case of the two
candidates who were eliminated by the Selection Committee and their cases were not sent to the
Commission for selection to the I.A.S.cadre. The High Court found that this was the selection
process by the Screening Committee headed by the Chief Secretary and these persons were not
found more meritorious to be recommended for appointment. This assessment of the Screening
Committee was found by the High Court to be proper and there was nothing on record to show
that the candidates who were short-listed were not meritorious.
20. As a result of our above discussion, we find that there is no merit in these appeals and
consequently, the appeals are dismissed. There would be no order as to costs.
Contempt Petition No.131 of 2006:
21. In view of the order passed in the civil appeals, we find no merit in the contempt
petition and the same is dismissed.
Appeals dismissed.

[2008 (1) T.N.C.J. 600 (SC)]

SUPREME COURT
BEFORE:
S. B. SINHA AND HARJIT SINGH BEDI, JJ.
AJAY MOHAN AND OTHERS ...Petitioners
Versus
H. N. RAI AND AND OTHERS ...Respondents
[Civil Appeal No.5831 of 2007 (Arising out of SLP (C) No.13789 of 2007), decided on 12 th
December, 2007]
Civil Procedure Code, 1908—Order XXXIX, Rule 1—Injunction—Grant of—
Appellant claiming ownership of suit land by reason of deed of gift—Respondents claim
their right, title, interest and possession on or over land in dispute—For obtaining
injunction prima facie case, balance of convenience and irreparable injury has to be shown
—Civil Court found prima facie suit not maintainable in absence of any prayer for
cancellation and setting aside of said agreement for sale—Appeal filed but withdrawn
and allowed the order to become final—Hence, no interference warranted—Appeal
dismissed.
(Paras 15 to 18 and 20)
Case law.—AIR 1960 SC 941; AIR 1964 SC 993; (2002) 7 SCC 447; (2005) 7 SCC 190;
(2005) 1 SCC 787; 2005 (11) SCC 509—referred.
JUDGMENT
S.B. SINHA, J.—Leave granted.
2. Appellants are aggrieved by and dissatisfied with the judgment and order dated
16.6.2007 passed in Appeal From Order No.320 of 2007 by a Division Bench of the Bombay
High Court whereby and whereunder an appeal from an order dated 12.4.2007 passed by City
Civil Court, Bombay in Notice of Motion No.944 of 2007 rejecting an application for injunction
filed by them was dismissed.
3. Appellants are said to have become owners of the suit land by reason of a deed of gift,
which is said to have been executed by Mrs. Tara Sarup on 30.3.1968 in favour of the first
appellant. Indisputably, respondents claim their right, title, interest and possession on or over the
land in suit in terms of an agreement of sale purported to have been executed by the appellants
herein in their favour on or about 23.10.1969.
4. Appellants’ case in relation to the said agreement for sale are :
(a) It is a forged document.
(b) In any event, the plaintiff No.1 being minor on the date of execution of the
agreement (his date of birth being 8.3.1952), the same is void in law.
5. The claim of the respondents, on the other hand, is that out of the amount of
consideration mentioned in the said agreement, namely Rs. 90,000/-, a sum of Rs.80,000/- has
already been paid and they were put in possession there-over in part performance thereof, as
envisaged under Section 53-A of Transfer of Property Act.
6. Various proceedings appear to have initiated before the Revenue Courts in regard to
inclusion of the name of the respondents in the Revenue Records. It is further accepted that
the first appellant herein had executed three deeds of assignment in favour of the second appellant
herein on or about 29.6.1991. A suit was filed by the appellants before the City Civil Court,
Bombay which was marked as Suit No. 4962 of 2006 claiming, inter alia, for a decree for
permanent injunction restraining the respondents from creating any right in or over the suit land
on the basis of revenue entries as also for a decree for permanent injunction restraining them from
interfering with their possession and occupation thereupon. In the said suit, the appellants took
out a notice of motion marked as Notice of Motion No.3551 of 2006 and by order dated
13.10.2006, learned Judge, City Civil Court, Bombay refused to grant an order of injunction,
inter alia, holding :
(i) The contentions advanced by the defendants are of much substance inasmuch as
in view of the execution of the agreement for sale, the onus was upon the
plaintiffs to get the said documents cancelled and treated as null and void. Such a
prayer having not been made, mere relief for injunction prayed for by the plaintiffs
cannot give rise to existence of prima facie case for grant of relief at the interlocutory
stage.
(ii) The cardinal rule being that possession follows title, the plaintiff proceeded under the
assumption that he had assigned the suit property to plaintiff No.2 who is a builder
and developer and that plaintiff No.2 and plaintiff No.3 are said to be protecting
the property.
(iii) The alleged threat of dispossession given by the defendants to the plaintiffs being
towards the end of May 2006, no details thereabout had been stated in the plaint and
in that view of the matter also the plaintiffs had failed to make out a prima facie case.
(iv) After a report was prepared by the Revenue Officer, allegedly the defendants were
found to be in possession. As the plaintiffs had not challenged the agreement of sale
dated 23.10.1969 whereunder only the defendants had been claiming their right,
validity thereof or otherwise would be pre-judging the case at that stage.
It was also found that the plaintiffs had not approached the Court with clean hands.
7. Appellants thereafter filed an application for amendment of plaint. They also preferred
an appeal against the said order dated 13.10.2006 in the High Court of Judicature at Bombay. The
said appeal, however, was withdrawn stating that they would move the trial Court for amendment
of the plaint. While allowing the said prayer, an observation was made that the trial Court
shall consider the question in regard to the amendment of plaint without in any way being
influenced by the observations made by the learned trial Judge in the impugned order. Although,
the High Court allowed the appellants to withdraw the appeal, it directed the parties to maintain
status quo for a period of two weeks.
8. A chamber summons thereafter was taken by the appellants on or about 1.12.2006
wherein not only amendment of the plaint was prayed for but an interim order of injunction
during the pendency of the said application was also prayed for. We may notice the amendments
sought for by the appellants in the said Notice of Motion:
“(a) (i) That it may be declared that the defendants or any of them have no right, title or
interest of any nature in respect of the plots of land bearing at C.T.S. Nos.6A and
7/1A of village Powai, Taluka Kurla admeasuring about 37,673 sq. mtrs. and
C.T.S. Nos.20 and 22 of village Tirandaz, Taluka Kurla admeasuring about
27,582 sq. mtrs. or any part/s thereof by virtue of the alleged Agreement for Sale
dated 23rd October, 1969, being Exhibit “A-10” hereto or otherwise or at all;
(a) (ii) that the Defendants, their servants and agents may be permanently restrained by
an Order and injunction of this Hon’ble Court from claiming any right, title or
interest of any nature in respect of the plots of land bearing at C.T.S. Nos.A and
7/1A of village Powai, Taluka Kurla admeasuring about 37,673 sq. mtrs. and
C.T.S. Nos.20 and 22 of village Tirandaz, Taluka Kurla admeasuring about
27,582 sq. mtrs. or any part/s thereof by virtue of the said alleged Agreement for
Sale dated 23rd October, 1969 being Exhibit “A-10” hereto or otherwise or at
all.
11. Add in the prayer (a) in the Plaint after the words ‘pass an order of injunction’
add “permanently”.
12. Add in prayer (a) after the words ‘Taluka: Kurla bearing……..’ delete the
words “CTS No.22 (Approx.) admeasuring 18,083 sq. mts.’ And instead add
the following :
“CTS Nos.20 and 22 admeasuring 27,582 sq. mts. and at village Powai Taluka…..Kurla
bearing CTS Nos.6A and 7-1A admeasuring 37,673 sq. mts. And”.
13. Add in the prayer (b) in the Plaint after the words ‘pass an order of injunction’
add “permanently”.
14. (i) Add in prayer (b) after the words ‘Taluka : Kurla bearing ……..’ delete
the words “CTS No.22 (Approx.) admeasuring 18,083 sq. mts.’ And instead
add the following :
“CTS Nos.20 and 22 admeasuring 27,582 sq. mts. and at village Powai Taluka……Kurla
bearing CTS Nos.6A and 7-1A admeasuring 37,673 sq. mts. And”.
(ii) Add in the Fourth line of prayer (b) after the words land occupation of the
plaintiffs’ the words “Nos.2 and 3”.
15. In prayer clause (c) after the words prayer clauses add ‘(a) (i)’.
9. Prayer for interim relief was rejected by the learned Judge, City Civil Court opining that
the earlier order dated 13.10.2006 became final.
10. Against the said order, the appellants again approached the High Court and by an order
dated 10.1.2007, a learned Single Judge noticing that the proposed amendment fell short of relief
of declaration that the suit agreement was null and void and to be set aside, came to the
conclusion :
 “This indicates that the appellants were conscious that such relief will have to be pressed
in respect of the suit documents. Obviously, that perception is on account of the fact that
the said documents were made subject-matter of proceedings before the Revenue
Authorities indeed, the respondents have stated on affidavit that the original copy of
the said document has been lost in respect of which police complaint is already instituted.
In such a case, however, it is possible for the respondents to establish the fact of existence
of such agreement by relying on secondary evidence on fulfilling the required norms
in that behalf. Be that as it may, prima facie, it is seen from the record that the execution
of the suit documents has been disputed by the appellants as back as in 1984, which stand
has been dealt with by the Authorities. Suffice it to observe that the appellants would
succeed only if they were to challenge the subject agreement, inasmuch as the defendants
were asserting rights in respect of the suit land on the basis of the said agreement. The
fact that the original copy of the said agreement is not in existence does not alter the
situation so as to absolve the appellants from claiming relief that the said agreement is
null and void and to set it aside.”
On the said findings, the judgment and order of the City Civil Court was upheld.
11. A special leave application was filed before this Court against the said order which was
marked as SLP (C) No.1218 of 2007. The same was disposed of by an order dated 2.2.2007,
stating :
“Counsel for the respondent-defendants, on instructions, states that the defendants have
no intention to create third party rights till the disposal of the amendment application
filed by the petitioners before the concerned City Civil Court, which is coming
up before the said Court for disposal on 7th February, 2007. We direct the concerned
Court to dispose of the Chamber Summons on 7th February, 2007 and till then, as stated
on behalf of the counsel for the respondents-defendants, no third party interest shall
be created. The Chamber Summons shall be decided uninfluenced by any observations
made by the High Court in the impugned order. Counsel for the petitioners submits that
the prayers made in the Chamber Summons are for amendment of the plaint as well as for
interim reliefs. The Court will consider all the reliefs prayed for in the Chamber
Summons and pass appropriate orders. The special leave petition is disposed of
accordingly.”
12. By an order dated 28.2.2007, the application for amendment was allowed. Keeping in
view the fact that the plaintiffs’ prayer for grant of interim injunction was confined in the earlier
notice of motion till the disposal thereof, the plaintiff did not press for the second prayer
expressing his desire to take out a separate notice of motion. A notice of motion for grant of
injunction was again taken out which was dismissed by reason of an order dated 12.3.2007 by the
learned Judge, City Civil Court. In regard to the order of this Court dated 2.2.2007, the learned
Judge observed :
“I have read and reread the order of the Supreme Court. The Apex Court has said that this
Court will consider all the reliefs prayed for in the Chamber Summons and pass
appropriate order. The word “interim” is defined in Black’s Law Dictionary as “in the
meantime”, “temporary” and “occurring in intervening time”. The relevant meaning here
appears to be “occurring in intervening time”. Therefore, I am of the view that the Apex
Court has referred to the period till the hearing and disposal of the Chamber
Summons. Now the chamber summon, is disposed of. It is allowed and all amendments
are incorporated in the plaint. Therefore, there is no stage, which is “occurring in
intervening time”. In this view of the matter, I do not find any substance in this notice of
motion. I, therefore, pass the following order :
 “Notice of motion stands dismissed. No order as to cost. The same may be registered for
statistical purpose.”
By reason of the impugned judgment, the High Court has upheld the said order.
13. Mr. R.F. Nariman, learned senior counsel appearing on behalf of the appellant, inter
alia, would submit that the appellants have never been heard on merit of the matter. The learned
counsel argued that keeping in view the nature and purport of the order of this Court dated
2.2.2007, the City Civil Court could not have relied upon its earlier order. Consequently, the
High Court had also committed a manifest error in applying the principles of res judicata which
have no application in the instant case. It was contended that the purported finding of the learned
Judge, City Civil Court to the effect that the defendants had been found to be in actual physical
possession of the suit property on the date of institution of the suit was clearly erroneous
inasmuch as no such finding had been arrived at by the said Court while passing its order dated
13.10.2006. It was urged that the report of an officer appointed by the Revenue Minister found
the appellant to be in possession of the property and in that view of the matter, it was not
necessary for them to pray for a decree for cancellation and setting aside of the agreement for sale
dated 23.10.1969. In any event, having regard to the observations made by the High Court, it was
obligatory on the part of the Courts below to consider the merit of the matter afresh.
14. Mr. Ashok Desai, learned senior counsel appearing on behalf of the respondents, on
the other hand, contended that the learned City Civil Court rejected the application for grant of
injunction in favour of the appellants, inter alia, holding that :
(a) Plaintiffs do not have any prima facie case;
(b) They had not approached the Court with clean hands;
(c) The delay in questioning the validity of the said agreement of sale
disentitles the plaintiffs from obtaining the order of injunction and they had not
challenged the validity of the said agreement in the suit.
It was contended that the very fact that the appellants had withdrawn the appeal
without reserving their liberty to move the trial Judge again for injunction would clearly attract
the principles of res judicata, Mr. Desai would submit that although an opportunity had been
granted to the appellants to pray for a relief of cancellation of the said deed of sale, the same was
not prayed for which would demonstrate speculative nature of the litigation resorted to by
the plaintiffs. A party to a suit, undoubtedly, may file an application for injunction if a change in
the situation has been brought about but there being no said change, it was urged, the second
application for injunction would not be maintainable.
15. It is a trite law that the principles of res judicata apply in different stages of the
same proceedings. [See Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi & anr., AIR 1960 SC
941, Arjun Singh v. Mohindra Kumar & Ors., AIR 1964 SC 993; and C.V. Rajendran & Anr. v.
N.M. Muhammed Kunhi, (2002) 7 SCC 447, Ishwar Dutt v. Land Acquisition Collector & Anr.,
(2005)7 SCC 190, and Bhanu Kumar Jain v. Archana Kumar & Anr., (2005) 1 SCC 787.
The entire claim of the plaintiff was based on their claim of possession of the lands in suit.
Defendants, on the other hand, claimed their right, title, interest and possession on the basis of the
purported agreement for sale. Whether possession had been delivered to them in part
performance of agreement of sale or not is essentially a question of fact. Genuineness or
otherwise of the said agreement also involves determination of a disputed question.
16. Plaintiffs, while praying for the relief of interim injunction, were bound to establish a
prima facie case. They were also bound to show that the balance of convenience lay in their
favour and unless the prayer is granted, they will suffer an irreparable injury. The learned Judge,
City Civil Court clearly found that prima facie, the plaintiffs’ suit was not maintainable in
absence of any prayer for cancellation and setting aside of the said agreement for sale having
been made for in the suit. Appellants although had been contending that such a relief was not
necessary as it was merely a defence of the respondents, why they did not raise such a question in
the original suit is a matter of guess. We do not know as to why the plaintiffs, despite
opportunities having been given to them, failed to make such a prayer even while seeking the
Court’s ‘leave’ to amend the plaint.
17. The order of the City Civil Court dated 13.10.2006 may be bad but then it was required
to be set aside by the Court of Appeal. An appeal had been preferred by the appellants
thereagainst but the same had been withdrawn. The said order dated 13.10.2006, therefore,
attained finality. The High Court, while allowing the appellant to withdraw the appeal, no doubt,
passed an order of status quo for a period of two weeks in terms of its order dated 23.11.2006 but
no reason therefor had been assigned. It ex facie had no jurisdiction to pass such an interim order.
Once the appeal was permitted to be withdrawn, the Court became functus officio. It did not hear
the parties on merit. It had not assigned any reason in support thereof. Ordinarily, a Court, while
allowing a party to withdraw an appeal, could not have granted a further relief. [See G.E. Power
Controls India & Ors. v. S. Lakshmipathy & Ors., (2005) 11 SCC 509].
18. Even then, the plaintiff preferred to file a fresh notice of motion. It did not file any
application for grant of injunction till the disposal of the suit. It, principally, in the said notice
of motion asked for amendment of the plaint. The second relief prayed for in the said notice of
motion was again withdrawn with liberty to file a fresh notice of motion. Appellants,
therefore, have been filing applications after applications without making proper prayer
therein at all stages.
19. So far as the order of this Court dated 2.2.2007 is concerned at the first blush, it
appears that this Court could not have granted any relief to reagitate the questions of hearing the
parties and interim relief once over again. Even if that be so, the said interim relief having regard
to the admitted facts was to be kept confined only for a short term, namely, till the application for
amendment is considered. This Court, therefore, did not grant any liberty to the plaintiffs to file a
fresh application for injunction. It could not comprehend thereabout at that time. The Notice of
Motion taken out for grant of injunction was, therefore, required to be considered on its own
merit. The plaintiffs had not brought out any new circumstances warranting grant of any
injunction in their favour. Only because a further prayer had been made in the suit upon
amending the plaint, the same by itself did not bring about a situational change warranting
application of mind afresh by the learned Judge, City Civil Court. The only argument which is
available to the appellants was that the suit, by reason of amendment made in the prayer, has
become maintainable. Maintainability of the suit itself does not give rise to a triable issue.
The issues which arose for consideration in the suit are the ones we would have noticed
hereinbefore, namely, inter alia, the validity of the agreement for sale and/or grant of possession
in favour of the defendants/respondents. How, by sheer amendment of the plaint, the plaintiff
could prove a prima facie case or show existence of a balance of convenience in their favour, has
not been demonstrated.
20. We are, therefore, of the opinion that although learned Judge, High Court, while
passing its order dated 13.10.2006 could have considered the merit of the application filed by the
appellant in regard to the relief for injunction, the same by itself, in our opinion, did not warrant a
direction to consider the matter afresh by the learned Judge, City Civil Court.
We are, therefore, are of the opinion that the impugned judgment do not suffer from any
infirmity. We would, however, having regard to the peculiar facts and circumstances of the case,
request the learned Judge, City Civil Court to consider the desirability of disposing of the suit as
expeditiously as possible preferably within a period of six weeks from the date of communication
of this order. The parties are directed to render all cooperation to the learned Judge in early
disposal of the suit. If it is convenient to the learned Judge, the hearing of the suit may be taken
up on day to day basis.
21. This appeal is dismissed with costs. Counsel’s fee quantified at Rs.25,000/- (Rupees
twenty five thousand only).
Appeal dismissed with costs.

[2008 (1) T.N.C.J. 609 (SC)]

SUPREME COURT
BEFORE:
C. K. THAKKAR AND ALTAMAS KABIR, JJ.
LAXMAN PRASAD ...Petitioner
Versus
PRODIGY ELECTRONICS LTD. AND ANOTHER ...Respondents
[Civil Appeal No.5751 of 2007 (Arising out of SLP (C) No.12405 of 2006), decided on 10 th
December, 2007]
Civil Procedure Code, 1908—Sections 16 to 20—Territorial jurisdiction of Court—
Appellant was an employee of respondent—Resigned from job—Agreement between
parties that after resignation appellant would not start same business for two years
and will also not use similar name of respondent—Involvement of appellant in same
business and using similar name—Part of cause of action arose in Delhi when appellant
represented him in trade fair—Hence, Court at Delhi has jurisdiction to entertain suit—
Appeal dismissed. (Paras 20, 21, 22, 31 and 33)
Case law.—(1873) 8 CP 107; (1989) 2 SCC 163; (1990) 3 SCC 481; (1992) 3 SCC 551;
(2005) 5 SCC 465—referred.
JUDGMENT
C.K. THAKKER, J.—Leave granted.
2. The present appeal is directed against the judgment and order passed by the High Court
of Delhi on April 26, 2006 in I.A. No. 9562 of 2005 in Civil Suit (OS) No. 819 of 2005. By the
said order, the High Court dismissed an application filed by the appellant herein under Order VII,
Rules 10 and 11 of the Code of Civil Procedure, 1908 (hereafter referred to as ‘the Code’).
3. Shortly stated the facts are that ‘Prodigy Electronics Ltd.’- plaintiff (respondent
No.1 herein) (‘the Company’ for short) was formed and incorporated under the laws of Hong
Kong and is engaged in the business of trading electronic goods under the name and style
‘Prodigy Electronics’, Hong Kong. The main area of business of the Company is Printed Circuit
Board (PCB). The business carried on by the Company involves keen understanding of the
requirements of the customers in order that the products may be manufactured to the specific
needs of the customers and they may be made available at competitive prices. The Company is,
therefore, required to take care of the consumer-complaints, if any. It also involves a reach into
the market identifying the potential consumers of the products which involves substantial
investment of time, effort and finance. According to the Company, it has developed solid
reputation in India under the trade name and trade mark ‘Prodigy Electronics’ in the field
of electronics generally and PCBs particularly.
4. According to the plaintiff-Company, on July 22, 2002, the defendant (appellant
herein) joined Prodigy Electronics in India as a representative for marketing PCB products of
the Company in India. An employment contract was entered into on October 2, 2003 between the
defendant-employee and the plaintiff-Company. Under the said contract, the defendant was given
full-time employment in the Company at Hong Kong in the capacity of ‘International Business
Development Manager’. He was given job profile of conducting all business of the Company in
India. Subsequently, at the request of the defendant who put forward personal reasons, he was
relocated to India and a new employment agreement dated September 13, 2004 was signed
by the parties. It was agreed that the job location of the appellant would be India. The defendant’s
tenure in India started from October 1, 2004. The Company was to bear all expenditure, including
travel-expenses of the defendant. According to the Company, however, after relocation to India in
October, 2004, the defendant tendered his resignation by e-mail on the ground of personal
problems. It was also stated that he would decide his next course of action later on. Though the
Company gave assurance to the defendant to support in his personal problems, the defendant did
not withdraw the resignation and thus his employment came to be terminated on
December 20, 2004. According to the Company, the defendant sent another e-mail on
December 20, 2004 giving assurance to the Company that though he would continue to be
involved in marketing of PCB products, he would be associating himself with
manufacturers other than the customers and suppliers of the Company.
5. It is the allegation of the Company that the defendant contacted potential customers of
the Company and informed them that he was representing ‘Prodigy’. He also submitted
quotes for PCB products. It was also the case of the Company that the defendant participated in
the Trade Fair in Delhi (Componex/Electronic India, 2005) which was held between February 1,
2005 to February 4, 2005 at Pragati Maidan, New Delhi. In the said Trade Fair, the defendant
used the goodwill and passed on the trade name of the plaintiff-Company. In the course of
inquiries about the data generated about PCB customers, the organizers of the Trade Fair
informed the Company that Multi Circuit Board (CHINA) Ltd., Hong Kong had participated in
the fair and information could be obtained from them. It was averred that the Company was
shocked to receive the said information since Multi Circuit Board (CHINA) Ltd. was the
manufacturer from whom the Company used to source its products for its Indian customers. The
further inquiry by the Company revealed that the said Multi Circuit Board (CHINA) Ltd. had a
representative in India and he was none else but the defendant who operated under the name and
style of “Prodigy Circuit Boards”. On being contacted, Multi Circuit Board (CHINA) Ltd. also
confirmed that it had executed a contract with the defendant. It also came to the notice of the
Company that the defendant had registered a deceptively similar domain name
‘www.prodigycircuits.com’ as far back as on October 5, 2004 while he was still in the
employment of the Company. The Company was thus convinced that the defendant had not
resigned on account of personal reasons or family problems but he wanted to misuse confidential
information which he had received from the Company and he wanted to take undue advantage in
spite of the agreement entered into with the Company. The Company also discovered that the
defendant had incorporated a Company under the name and style of ‘Canton Treasure
Corporation Ltd.’ on July 16, 2004 when he was stationed in Hong Kong and was still serving
with the Company. Thus, obvious breach of employment contract was committed by the
appellant.
6. In view of the above facts and breach of contract by the defendant, the plaintiff-
Company on May 28, 2005, filed a suit being Civil Suit (OS) No. 819 of 2005 in the High Court
of Delhi at New Delhi (Original Jurisdiction) for permanent and mandatory injunction against the
defendant as also for damages by ordering rendition of accounts. Alongwith the plaint, the
Company filed an application under Order XXXIX, Rules 1 and 2 read with Section 151 of the
Code for interim injunction restraining the defendant from using the name ‘Prodigy’, ‘Prodigy
Circuit’ or any other identical or deceptively similar name or from passing off any such identical
or deceptively similar trade mark or trade name.
 7. Notice was issued to defendant. He filed his written statement on November 10, 2005.
The defendant also filed an application under Order VII, Rules 10 and 11 of the Code praying for
rejection/return of plaint for presentation to proper Court. It was contended by the defendant that
the plaint disclosed no cause of action and was liable to be rejected. It was further stated that no
requisite court-fee had been paid within the time granted by the Court and on that ground also,
the plaint deserved to be rejected. It was also asserted that there was an agreement between the
plaintiff-Company and the defendant by which exclusive jurisdiction was granted to Courts in
Hong Kong and jurisdiction of all other Courts had been ousted and on that ground also Delhi
Court had no jurisdiction in the matter.
8. The High Court, as observed earlier, considered the application of the defendant and by
the impugned order, dismissed it holding that the agreement did not take away jurisdiction of the
Court as contended by the defendant and the application had been filed only with a view to delay
the progress of the suit which was liable to be dismissed and it was accordingly dismissed with
costs of Rs.4,000/-.
9. The appellant-defendant has challenged the said order by filing the present appeal. On
August 7, 2006, notice was issued by this Court and in the meantime further proceedings in the
suit were stayed.
10. We have heard learned counsel for the parties.
11. The learned counsel for the appellant contended that the High Court was wholly wrong
in holding that Courts in India could entertain a civil suit and the application filed by the
defendant-appellant was liable to be rejected. According to the learned counsel, the agreement
entered into between the parties made it expressly clear that the law applicable, in case of dispute
between the parties would be law of Hong Kong Special Administrative Region and, hence,
Indian Courts have no jurisdiction to entertain, deal with and decide such question. It was also
submitted by the learned counsel that in the light of the agreement between the parties, only
remedy available to the plaintiff-Company was to take appropriate proceedings in accordance
with law in a competent Court in Hong Kong and no Indian Court could have jurisdiction
inasmuch as jurisdiction of all Courts in India is barred by necessary implication. The counsel
also contended that the High Court committed an error in holding that Delhi High Court
had jurisdiction as the defendant was residing in Delhi. In the plaint itself, the plaintiff gave the
address of the defendant of Ghaziabad which is not in Delhi but in Uttar Pradesh (U.P.). The
counsel also made grievance that the High Court was not right in observing that the defendant
wanted to delay the proceedings and was not justified in imposing costs of Rs.4,000/-. It was,
therefore, submitted that the appeal deserves to be allowed by setting aside the order passed by
the High Court.
12. The learned counsel for the respondent-Company, on the other hand, supported the
order passed by the High Court. He submitted that the only thing which was relevant in the
agreement was as to applicability of laws. As per settled legal position, a suit could be instituted
in Delhi as part of cause of action had arisen within the territorial jurisdiction of that Court. The
High Court was right in observing that applicability of law had nothing to do with situs of a suit
and since the defendant had used the trade mark/trade name of the plaintiff in Delhi in Trade Fair,
it was open to the plaintiff Company to institute a suit in Delhi. It was submitted that it is really
surprising that though Hong Kong based Company institutes a suit in Delhi where the defendant
had used the trade mark/trade name, where he resides and thus it is much more convenient to
him to defend the suit, yet he objects to the proceedings which clearly goes to show that the only
intention on the part of the defendant is to delay the proceedings. The High Court was, therefore,
right in dismissing the application and in ordering payment of costs by him. It was, therefore,
submitted that the appeal deserves to be dismissed.
 13. Having heard the learned counsel for the parties, in our opinion, no case has
been made out by the appellant from which it can be said that Delhi Court had no jurisdiction.
Both the learned counsel referred to the agreement dated September 13, 2004 entered into
between the parties. Clause 10 of the agreement relates to “Resignation and Termination of
Service”. In accordance with the said clause, the appellant herein left the plaintiff-Company.
Clause 10 stipulates that in the event of resignation or termination for any reason, the employee
would not engage himself in a similar or competitive business for a period of two years, nor he
would contact or solicit any customer or supplier with whom the employer conducted business
during the employment. Clause 14 provides for ‘Conflict of Interest’. Clause 15 deals with
‘Confidentiality’. It recites that upon accepting employment with Prodigy, the defendant
would maintain confidentiality which would mean that he would not disclose any ‘Prodigy
confidential information’ either during or after his employment to anyone outside the Company,
nor would use it for personal benefit. Clause 18 is material for the purpose of controversy and
may be reproduced:
“18. The terms and conditions as stipulated above shall be interpreted in accordance
to the laws of the Hong Kong Special Administrative Region.”
(emphasis supplied).
14. It is this clause (Clause 18), which requires interpretation. According to the
appellant, since the terms and conditions in the agreement have to be interpreted in
accordance with the laws of Hong Kong, no Court in any country other than a Court in Hong
Kong shall have jurisdiction to entertain a suit, petition, application or any other proceeding. The
submission of the respondent-Company, on the other hand, is that what is agreed upon is not
territorial jurisdiction of a Court but applicability of laws. Clause 18 deals with the second
eventuality and declares that terms and conditions of the agreement would be interpreted in
accordance with the laws of Hong Kong.
15. We find considerable force in the submission of the learned counsel for the respondent-
Company. In our view, ‘cause of action’ and ‘applicability of law’ are two distinct, different and
independent things and one cannot be confused with the other. The expression ‘cause of action’
has not been defined in the Code. It is however settled law that every suit presupposes the
existence of a cause of action. If there is no cause of action, the plaint has to be rejected [Rule
11(a) of Order VIII]. Stated simply, ‘cause of action’ means a right to sue. It consists of
material facts which are imperative for the plaintiff to allege and prove to succeed in the suit. The
classic definition of the expression (‘cause of action’) is found in the observations of Lord Brett
in Cooke v. Gill, (1873) 8 CP 107 : 42 LJ CP 98.
16. His Lordship stated:
“Cause of action 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”.
17. In A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, (1989) 2 SCC 163, this Court said:
“A cause of action means 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,
it is a bundle of facts which taken with the law applicable to them gives the plaintiff a
right to 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 can possibly accrue. It is not limited to
the actual infringement of the right sued on but includes all the material facts on
which it is founded It does not comprise evidence necessary to prove such facts, but
every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything
which if not proved would give the defendant a right to immediate judgment must be part
 of the cause of action. But it has no relation whatever to the defence which may be
set up by the defendant nor does it depend upon the character of the relief prayed for by
the plaintiff”. (emphasis supplied)
18. Now, Sections 16 to 20 of the Code deal with territorial jurisdiction of a Court (place
of suing). Whereas Sections 16 to 18 relate to immovable property, suits for compensation
for wrongs to persons or movables have been dealt with under Section 19. Section 20 of the
Code is a residuary provision and covers all cases not falling under Sections 16 to 19.
19. The relevant part of Section 20 reads thus:
“20. Other suits to be instituted where defendants reside or cause of action arises.—
Subject to the limitations aforesaid, every suit shall be instituted in a Court
within the local limits of whose jurisdiction—
(a) the defendant, or each of the defendants where there are more than one, at the
time of the commencement of the suit, actually and voluntarily resides, or carries
on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on
business, or personally works for gain, provided that in such case either the leave
of the Court is given, or the defendants who do not reside, or carry on business,
or personally work for gain, as aforesaid, acquiesce in such institution ; or
(c) the cause of action, wholly or in part, arises.”
(emphasis supplied)
20. Bare reading of Clause (c) leaves no room for doubt that a suit would lie in a Court
within the local limits of whose jurisdiction the cause of action has arisen, wholly or partly.
21. Section 20 has been designed to secure that justice might be brought as near as possible
to every man’s hearthstone and that the defendant should not be put to the trouble and expense
of travelling long distances in order to defend himself.
22. According to the plaintiff-Company, a suit instituted on the Original Side of the High
Court of Delhi is maintainable since a part of cause of action had accrued within the territorial
jurisdiction of Delhi Court (breach of agreement by defendant). The argument of the defendant
that the agreement was executed in Hong Kong and hence suit could have been instituted only in
that country is, in our opinion, not well founded. It is no doubt true that the suit could have been
instituted in Hong Kong as well. That, however, does not take away the jurisdiction of Delhi
Court where a part of cause of action has arisen. In the plaint, it was specifically alleged by the
plaintiff Company that the defendant committed breach of terms and conditions of agreement
during the Trade Fair in February, 2005 held in Pragati Maidan, Delhi. It was, therefore, open to
the plaintiff Company to institute a suit in a competent Court within the jurisdiction of Delhi and
that is how the suit is filed in the High Court on its Original Side. In our considered opinion,
therefore, the contention of the appellant-defendant that the agreement was executed in a foreign
country or the defendant was a resident of Ghaziabad (Uttar Pradesh) cannot take away, exclude
or oust the jurisdiction of Delhi Court in view of the averment made in the plaint that a part of
cause of action had arisen within the local limits of Delhi.
23. It was submitted by the learned counsel for the appellant that once there is an
agreement as to choice of Court or forum, the parties are bound by it. For the said proposition,
our attention has been invited to several decisions rendered by this Court. We do not intend to
burden our judgment on that point as the law is well settled and the learned counsel for the
respondent-Company has not disputed the proposition. What was contended was that Clause 18
does not take away the jurisdiction of a competent Court and the agreement did not exclude
territorial jurisdiction of any Court.
 24. Learned counsel for the appellant relied on a decision of this Court in British India
Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries & Ors., (1990) 3 SCC 481. In
that case, the plaintiff purchased from the defendant-Company raw cashew nuts which were
shipped in a vessel chartered by the Company incorporated in England. Clause 3 of the Bill of
Lading dealt with jurisdiction of the Court. The said clause read as under:
“3. Jurisdiction.—The contract evidenced by this bill of lading shall be
governed by English law and disputes determined in England or, at the
option of the Carrier, at the port of destination according to English law to the
exclusion of the jurisdiction of the Courts of any other country.”
25. Though the above clause made it clear that the dispute should be determined in
England, this Court held that the objection as to territorial jurisdiction had been waived by
the defendant. So far as the law is concerned, it was held that proper law to govern the contract
was English law.
26. The learned counsel for the appellant submitted that the ratio laid down in British India
Steam Navigation Co. applies to the case on hand and the High Court of Delhi committed an error
of law in not upholding the objection of the defendant that Indian Court had no
jurisdiction to deal with the matter.
27. We are unable to agree. Clause 3, as extracted hereinabove, clearly provided that the
contract would be governed by English law. The High Court was, therefore, right in observing
that the case is not relevant so far as the question raised in the present matter.
28. The counsel also referred to National Thermal Power Corporation v. Singer Company
& Ors., (1992) 3 SCC 551. The parties in that case by an agreement had chosen the jurisdiction of
one Court to the exclusion of the other. Likewise, they also agreed as to the applicability of law.
In the light of the fact situation, the Court held that the parties are bound by such agreement and it
has to approach a Court in consonance with the agreement. This judgment also does not
help the appellant in the instant case.
29. Our attention was also invited to Technip S.A. v. S.M.S. Holding (P) Ltd. & Ors.,
(2005) 5 SCC 465. Even that case also does not help the appellant. What was held there was as to
the law applicable to the dispute and not the territorial jurisdiction of the Court. On the
contrary, para 23 of the said decision goes to show that territorial jurisdiction of the Court
and applicability of law are two different things and even if a matter is decided in the country
other than the country where the agreement has been executed, the law which would apply would
be the law agreed by the parties.
30. The Court stated:
“23. The relationship of Technip to Coflexip whether one of control or not is really
a question of their status. The applicable law would therefore be the law of
their domicil, namely, French law. Having determined their status according to
French Law, the next question as to their obligation under the Indian law vis-a-
vis SEAMEC would have to be governed exclusively by Indian law (in this case
the Act and the Regulations). SAT’s error lay in not differentiating between
the two issues of status and the obligation by reason of the status and in seeking
to cover both under a single system of law”.
(emphasis supplied)
31. In the case on hand, we have referred to the relevant clauses of the agreement. Clause
18 provides for applicability of law and it specifically declares that the terms and conditions of
the agreement shall be interpreted in accordance with ‘the laws of Hong Kong Special
Administrative Region’. That, in our judgment, does not mean that a suit can be instituted only in
Hong Kong and not in any other country. Territorial jurisdiction of a Court, when the plaintiff
intends to invoke jurisdiction of any Court in India, has to be ascertained on the basis of the
principles laid down in the Code of Civil Procedure. Since a part of ‘cause of action’ has arisen
within the local limits of Delhi as averred in the plaint by the plaintiff Company, the question has
to be considered on the basis of such averment. Since it is alleged that the appellant-defendant
had committed breach of agreement by using trade mark/trade name in Trade Fair, 2005 in Delhi,
a part of cause of action has arisen in Delhi. The plaintiff-Company, in the circumstances, could
have filed a suit in Delhi. So far as applicability of law is concerned, obviously as and when the
suit will come up for hearing, the Court will interpret the clause and take an appropriate decision
in accordance with law. It has, however, nothing to do with the local limits of the jurisdiction of
the Court. The High Court, in our opinion, was right in rejecting the application and in overruling
preliminary objection. Since prima facie the plaint disclosed a cause of action as also territorial
jurisdiction of the Court, the High Court rightly rejected both the contentions and no error was
committed by it in not rejecting plaint, nor returning it for presentation to proper Court.
‘Applicability of Hong Kong Law’, ‘entering into an agreement in Hong Kong’ or ‘defendant
residing in Ghaziabad (Uttar Pradesh)’ or any of them does not take away the jurisdiction of
Delhi Court since a ‘cause of action’ at least in part, can be said to have arisen in Delhi. We,
therefore, see no substance in the contention of the defendant- appellant.
32. So far as imposition of costs is concerned, normally it is in the discretion of the Court.
When the Court, in the light of the facts before it, satisfied that the defendant wanted to delay the
proceedings and ordered him to pay costs of Rs.4,000/-, it would not be appropriate to interfere
with that part of the order.
33. For the foregoing reasons, the appeal deserves to be dismissed and is accordingly
dismissed. However, in the facts and circumstance of the case, there shall be no order as to costs.
Appeal dismissed.

[2008 (1) T.N.C.J. 618 (SC)]

SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.
THE GENERAL MANAGER, PENCH AREA,
PARASIA, M.P. AND ANOTHER ...Petitioners
Versus
BARKAN @ KANHAIYA ...Respondent
[Civil Appeal No.2711 of 2001, decided on 13 December, 2007]
th

Specific Releif Act, 1963—Section 114—Specific performance of contract of

employment—Land of respondent acquired—Agreement that four persons were to be given
employment—Allegation that only three had been provided employment—Suit decreed and
upheld by High Court—Before Apex Court document produced showing that son of
respondent was given employment—Hence, suit of respondent deserves to be dismissed—
Appeal allowed.
(Paras 5 and 6)
JUDGMENT
 DR. ARIJIT PASAYAT, J.—Challenge in this appeal is to the order passed by a learned
Single Judge of the Madhya Pradesh High Court at Jabalpur Bench dismissing the appeal filed by
the appellants.
2. Background facts in a nutshell are as follows:
Respondent filed a suit for specific performance of the contract of employment. According
to the appellants, his lands were acquired for the purpose of construction of quarters for the
employees.
2-A. Sale-deed was executed in respect of the land and there was specific provision in a
preceding agreement that four persons were to be given employment. Allegation was that only
three had been provided employment and in spite of assurance the defendants did not give the job
to the plaintiffs.
3. Stand of the defendants was that the suit was not maintainable. In fact, four persons
have been given employment. The Trial Court and the First Appellate Court accepted the position
that three persons had been given jobs but held that no job was provided to the appellant. The
Trial Court noticed that even though it was contended by the present appellants that one son of
the plaintiff had been given a job, no document in that regard had been filed. The First Appellate
Court and the High Court were of the same view.
4.The High Court held that the stand of the appellant that in view of Section 14 of the
Specific Relief Act, 1963, suit for specific performance is not maintainable and is subject to
certain exceptions. It was held that since there was a solemn promise to employ four persons the
appellants should not be permitted to wriggle out the promise by taking the plea that Section 14
of the Act bars a suit of the nature filed.
5. By order dated March 31, 2000, this Court had permitted the appellants to file
documents to show that the son of the respondent No.1 had been given appointment on his
nomination. The same has been filed. Though this document was not part of the records of the
Courts below, but other evidence was available to show that, in fact, son of respondent No.1
named ‘Guntoo’ was appointed at the request of respondent No.1. The document placed on record
by the appellant pursuant to the order of this Court also clearly establishes this fact.
6. In that view of the matter the suit filed by respondent No.1 deserves to be dismissed
and the orders of the Trial Court, First Appellate Court and the High Court in the Second Appeal
deserve to be set aside which we direct.
7. The appeal is allowed to the aforesaid extent. No costs.
Appeal allowed.

[2008 (1) T.N.C.J. 620 (SC)]

SUPREME COURT
BEFORE:
S. B. SINHA AND HARJIT SINGH BEDI, JJ.
SONI DINESHBHAI MANILAL AND OTHERS ...Petitioners
Versus
JAGJIVAN MULCHAND CHOKSHI ...Respondent
[Civil Appeal No.5945 of 2007 (Arising out of SLP (C) No.19295 of 2005) with C.A. No.5946 of
2007 (Arising out of SLP (C) No.7818 of 2006), decided on 14th December, 2007]
Constitution of India, 1950—Article 136—Civil Procedure Code, 1908—Section 100,
Order XXVI, Rule 11 and Order XVIII, Rule 1(4)—Commissioner’s report—Suit for
dissolution of firm—Suit decreed—Application for initiation of a final decree proceeding—
Court Commissioner appointed for taking accounts—Report submitted and no objection
filed—Even no revision filed and allowed it to become final—However, matter has been
considered by appellate Court and recorded finding—Hence, no interference warranted.
(Paras 21 to 25)
Case law.—AIR 1970 SC 1; 2007 (7) Scale 758—referred.
JUDGMENT
S.B. SINHA, J.—Leave granted.
2. Appellants in both the appeals are before us, aggrieved by and dis-sastisfied with the
judgment and order dated 6th April, 2005 passed by a learned Single Judge of the High Court of
Gujarat in Second Appeal No.37 of 1998.
3. For the purpose of determining the question involved in these appeals, Soni Dineshbhai
Manilal and others are being referred to as the appellants, while Jagjivan Mulchand Chokshi is
being referred to as the respondent.
4. Appellants’ father and the respondent were partners of a partnership firm known as
“Bhagyoday Engineering Company”. A decision was taken to dissolve the said firm. A deed
of dissolution was entered into on the 9th day of September, 1965. A suit for dissolution of the
partnership firm and accounts was filed by the respondent herein, inter alia on the premise of the
existing dispute in regard to shares of the parties in the said partnership firm.
5. The suit was dismissed on 29th July, 1975. However, the appeal preferred thereagainst
was allowed holding that the respondent-plaintiff was entitled to 56 % shares, whereas the father
of the appellants was entitled to 44 % share. A decree was also passed for accounts for the period
19th January, 1960 and 9th September, 1965. Father of the appellants filed a second appeal
before the High Court which was partly allowed, whereby the shares of the parties were
determined at 50 % each. The said decree was affirmed by this Court by its order dated 25th
February, 1994.
6. An application was thereafter filed for initiation of a final decree proceedings. A Court
Commissioner was appointed for taking accounts. The Commissioner submitted his report on
13th August, 1986. Objection thereto was filed by the father of the appellants. An application was
also filed for permission to cross-examine the Court Commissioner. The same was rejected. A
civil revision application was filed by the father of the appellants which was dismissed by an
order dated 22nd Aril, 1996, stating :—
“Mr. D.K. Acharya, learned Advocate for the petitioner seeks leave to withdraw the civil
revision application. Leave granted. Rejected as withdrawn. It is, however, clarified that
the petitioner-defendant would be entitled to prove or disprove the accounts that may be
submitted by the parties with regard to the partnership firm.”
7. An application was also filed by the father of the appellants before the trial Court to
allow a Chartered Accountant to verify the records and, accounts books. The said prayer was also
rejected.
8. By an order dated 2nd May, 1997 the trial Court rejected the objections of the appellants
opining:—
“Taking into consideration, the submissions, replies and evidences of both the sides, Civil
Court had rejected the said suit and against the said order, Appeal No. 79 of 1975 was
being admitted in the District Court. The appellate Court had quashed the order of the
Civil Court and share of the Plaintiff was decided and it was ordered in respect of
accounts to appoint the Court Commissioner for taking accounts. Thereafter in the
Hon’ble High Court and in the Hon’ble Supreme Court, the said matter was filed and
thereafter to draw final decree the same matter was adjourned.
 In the said case, being kept for hearing on the debated point in respect of legal question,
but both the parties were given proper time and reasonable opportunity, even though,
their rights were closed as there was no submissions.
In the said case, Commissioner’s Report at Mark 44/1, which was being admitted in
evidence according to provisions of Order 2-G, Rules 11, 12, which was taken on record
by Exh. 124 for taking into consideration for evidence. In the said case, the record and
Commissioner’s report which were produced before me, being taken into consideration
and if determined as per law, the Commissioner’s report and the finding which were
given by taking into account the fact, are found reasonable and when said report was
given by the defendant by violating the provisions of existing law, have been failed to
prove the same, in that circumstances, it is found that it is reasonable and just to give
sanction to the details of the report of Court Commissioner. So taking into consideration
the facts and documentary evidence produced, I pass the following order in the interest of
justice.”
9. An appeal preferred thereagainst, however, was allowed by an order dated 11th
December, 1997. Cross-objection was filed by the respondent therein and while rejecting the
said cross-objection, the first appellate Court observed:—
“The cross-objections Ex.11 filed by the respondent plaintiff are hereby rejected.
However, the learned trial Judge is directed to allow the said party to agitate the question
regarding interest and the same be decided as per law.”
10. Respondent filed a second appeal thereagainst which has been allowed by reason of the
impugned judgment.
11. Mr. Pravin Satale, learned counsel appearing on behalf of the appellant submitted :
(i) having regard to the provisions of Order XLIII, Rule 1, sub-rule (u) of the
Code of Civil Procedure the second appeal was not maintainable ;
(ii) High Court committed a serious error in relying upon the orders passed by the trial
Court from time to time without taking into consideration the fact that in view of
Section 105 of the Code of Civil Procedure, such orders are open to challenge
in an appeal preferred against a final order ;
(iii) The Commissioner appointed to take accounts should be allowed to be cross-
examined by a party taking objection to his report and in any event, he is entitled to
adduce his own evidence in support of his objection.
(iv) The Commissioner having ignored vital facts including non-production of books
of accounts and ledger, his report could not have been accepted.
12. Ms. Meenakshi Arora, learned counsel appearing on behalf of the respondent, on the
other hand, contended :
(i) The appeal preferred by the respondent being a composite one both against the order
dismissing the cross-objection as also the appeal preferred by the appellants, a second
appeal was maintainable.
(ii) A distinction must be made between a Commissioner appointed to examine accounts
and other Commissioners inasmuch as the report in the former case is to be treated as
evidence in the suit. In any view of the matter, keeping in view the facts and
circumstances of the case, in particular the fact that the preliminary decree was
passed as far back as 13th October, 1978, the impugned judgment should not be
interfered with.
 13. The learned trial Judge inter alia opined that opportunities have been granted to the
appellants to adduce evidence which they did not avail.
14. The learned Court of Appeal, on the other hand, held that the appellants were
prejudiced as the objections filed by them had not been considered.
15. In the final decree proceeding, one Shri Vardhilal A. Shah was appointed as a
Commissioner. He was asked to examine the accounts of the dissolved partnership firm. He
submitted a detailed report. It is not the case of the appellants that while preparing the said report
he was not allowed to place any document before him or call for any document which was in
custody or possession of the respondent. For the purpose of determining the issue referred to him
by the Court in terms of Order XXVI, Rule 11 of the Code of Civil Procedure, principally the
books of accounts which were maintained by the firm were required to be taken into
consideration. If any additional books of accounts or any other document was required to be
taken into consideration therefor, it was for the appellants to point out the same. It appears that
the first objection which was taken by the appellant was non-production of ‘ublek’ books and
stock books. An objection was filed to that effect on 1st July, 1985 which was rejected by an
order dated 26th July, 1985. It does not appear that any civil revision application was filed
thereagainst. The said order, therefore, attained finality.
16. Another application was filed in 1994 to cross-examine the Commissioner. The
same was rejected on 29th April, 1995. However, an observation was made by the trial Court
that the ‘averments are fabricated with bad intention by the defendant and that the delay
may be caused for recovery of decretal amount’. Another objection filed by the respondent was
rejected by a very detailed order dated 31st January, 1996 not only taking into consideration the
provisions of law but also the precedents operating in the field. Conduct of the parties had also
been taken into consideration therein. The learned Judge also considered the nature of the
objections raised, one of which, we may notice, is that the Commissioner was not an expert in
accounts. It was pointed that no such objection was raised at the time of the appointment of the
Commissioner.
17. Appellants’ principal grievance centers round the non-production of ‘ublek’ books
which, as noticed hereinabove, had been dealt with in the earlier orders of the Court. It was
pointed out that the Commissioner had prepared a balance sheet inter alia on the basis of the
purchase bills and the sales bills.
18. A civil revision application, as noticed hereinbefore, was filed against one of the
orders, which was later withdrawn. It is accepted at the Bar that the other civil revision
application was also withdrawn.
19. The High Court in its impugned judgment had taken the said facts into consideration.
Order XXVI, Rule 11 of the Code of Civil Procedure provides for appointment of a
Commissioner to examine or adjust accounts, if necessary. He is competent to decide all
questions raised before him, taking into consideration all aspects of the matter. He is to assist the
Court. A Commissioner’s report can be set aside only upon assignment of proper and sufficient
reasons. In the event any defect in the conduct of enquiry by him is found out, the Court may
issue any further directions. A further enquiry can also be ordered. A report of the Commissioner
is a part of the record. It is to be treated as evidence in the suit.
20. Rule 16 of Order XXVI of the Code of Civil Procedures provides for powers of the
Commissioners which is in the following terms:—
“16. Powers of Commissioners.—Any Commissioner appointed under this Order may,
unless otherwise directed by the order of appointment,—
 (a) examine the parties themselves and any witness whom they or any of them may
produce, and any other person whom the Commissioner thinks proper to call
upon to give evidence in the matter referred to him;
(b) call for and examine documents and other things relevant to the subject of
inquiry;
(c) at any reasonable time enter upon or into any land or building mentioned in the
order.”
21. Appellants’ father was, therefore, entitled to raise all the contentions in regard to
non-production of books of accounts and other maters. It was also permissible for him to examine
witnesses in support of his case before the Commissioner. It may be true that any order passed
can be questioned in the grounds taken in the appeal against the final orders, but such
interlocutory orders are required to be challenged. Nothing has been shown before us that
such interlocutory orders and particularly those which are referred to hereinbefore had
specifically been challenged in the Memorandum of Appeal but the said interlocutory orders
were not subjected to revision. What is essential is that they should not have been appealed
against. If a revision has been filed which is a part of the appellate jurisdiction, although stricto
sensu, doctrine of merger may not apply but Section 105 of the Code of Civil Procedure also
would not apply in such cases. Each of those orders attained finality. It has been held in Shankar
Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat, AIR 1970 SC 1, that civil
revision is a part of appellate jurisdiction.
22. As noticed hereinbefore, before the Court, objections to the report of the
Commissioner had been taken. Several orders were passed. There is nothing on record to show
that the appellant intended to adduce any evidence in support of his case. In fact he was
permitted to do so.
23. It may be true that in view of Rule 1(u) of Order XVIII a second appeal was not
maintainable but the scope of an appeal under Section 100 of the Code of Civil Procedure is
narrower. If the appeal had been entertained upon hearing both the parties, this Court may not
exercise its extraordinary jurisdiction to set aside that order, as what matters most is to see
whether substantial justice has been done to the parties and not the technicalities involved therein.
24. In a given case the appellate Court in exercise of its inherent jurisdiction can convert
one type of appeal to the other. Forum for preferring a second appeal as also an appeal
under Order XVIII, Rule 1(u) is the same, namely the High Court. As the scope of an appeal
under Order XVIII, Rule 1(u) is wider than a second appeal, the appellants on their own showing
are not prejudiced in any manner, if the High Court proceeded to consider the question involved
in the appeal in its impugned judgment.
25. Even substantial questions of law were framed and the same have been answered. We,
however, although agree that technically a second appeal was not maintainable from one part of
the judgment, keeping in view of the fact that the matter is pending for more than 40 years
and in view of the nature of the dispute as also the quantum of amount involved, we are of the
opinion that it is not a fit case where we should exercise our discretionary jurisdiction under
Article 136 of the Constitution of India. It is now well settled that this Court may decline to
exercise its jurisdiction, although it would be lawful to do so. [See Management, Pandiyan
Roadways Corporation Ltd. v. N. Balakrishnan, 2007 (7) Scale 758 ].
26. In the above circumstances both the appeals fail and are dismissed. However, in
the facts and circumstances of the case there shall be no order as to costs.
Appeals dismissed.
 [2008 (1) T.N.C.J. 626 (SC)]
SUPREME COURT
BEFORE:
A. K. MATHUR AND MARKANDEY KATJU, JJ.
STATE OF RAJASTHAN AND OTHERS ...Petitioners
Versus
M/S. KHANDAKA JAIN JEWELLERS ...Respondent
[Civil Appeal No.5273 of 2007 (Arising out of S.L.P. (C) No.19439 of 2006), decided on 16 th
November, 2007]
(A) Stamp Act, 1899—Sections 2(12), 3, 17, 27 and 47-A [as inserted by Rajasthan
(Amendment) State Stamp Act]—Market value of the instrument—To be seen at the time of
the execution of the sale deed—And not at the time when agreement of sale was entered
into. (Para 9)
(B) Interpretation of Statutes—A taxing statute has to be read as it is—Literal rule of
interpretation applies. (Para 11)
(C) Stamp Act, 1899—Sections 2(12) and 17—Market value—Ascertainment of—
Registering authority is under an obligation to ascertain the correct market value at the
time of registration—And should not go by the value mentioned in the instrument.
(Para 12)
(D) Stamp Act, 1899—Sections 3, 17 and 27—Composite reading of—Valuation
given in an instrument is not conclusive—Registering authority has to ascertain the correct
valuation given in the instrument regarding market value of the property at the time of sale.
(Para 13)
(E) Stamp Act, 1899—Section 17—Market value—To be ascertained at the time
when registration is made—Valuation is to be seen on that basis.
(Para 14)
Case law.—AIR 1957 SC 657; AIR 1998 A.P. 252.
Important Point
The market value of the instrument has to be seen at the time of the execution of the sale
deed and not at the time when agreement to sale was entered into. An agreement to sell is not a
sale. An agreement to sell becomes a sale after both the parties signed the sale deed.
JUDGMENT
A.K. MATHUR, J.—Leave granted.
2. This appeal is directed against the judgment dated 23.11.2005 passed by the Division
Bench of the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in SBCWP No.
133/1997 and DBCSA No. 427/2002 whereby the division bench has affirmed the order of the
learned Single Judge.
3. Brief facts which are necessary for the disposal of this appeal are as under:
The S.B. Civil Writ Petition No. 133/97 was filed by M/s Khandaka Jain Jewellers,
petitioner (respondent herein) in the High Court of Judicature for Rajasthan, Jaipur Bench,
Jaipur who prayed that a direction may be issued to the respondent Nos. 2 and 3 to register
the sale deeds sent by the Court of additional district Judge No. 1, Jaipur city in execution
application Nos. 15/94 and 16/94 and to send back the same to the Court immediately after
registration. It was also prayed that the respondents may be directed to register the sale deeds on
the stamps on which it is executed by the executing Court and not to charge more stamp duty
from respondent (herein). It was further prayed to quash and set aside the proceedings taken
under Section 47-A(2) of the Stamps Act, 1952 in case Nos. 442/95 and 443/95 on 4th March,
1997 for determination of the valuation of the sale deed for registration.
The respondent is a registered firm and it entered into two agreements for purchase of
properties with Shri Prem Chand Ajmera, resident of 2148, Haldiyon Ka Rasta, Jaipur by one
agreement dated 20th October, 1983. The property was agreed to be purchased for a sum of
Rs. 1,41,000/- out of which Rs. 20,000/- were paid at the time of the agreement. As the vendor
failed to comply with the terms of the agreement, the respondent vendee filed a suit for specific
performance of the contract in the Court of District Judge, Jaipur city which was later on
transferred to the Court of Additional District Judge No.1, Jaipur city under registration No.
216/86. The suit was decreed by the Judgment and decree dated 2nd February,1994. In pursuance
of the said decree, the respondent firm deposited an amount of Rs. 1,21,000/- in the Court on 9th
May, 1994. Since the vendor did not execute the sale deed, therefore, the respondent firm filed
the execution application No. 16/90 before the Court of Additional District Judge No. 1, Jaipur
city.
In another agreement dated 20 th October, 1983 the vendor Premchand agreed to sell a
portion of property for a sum of Rs. 50,000/- out of which Rs. 10,000/- was paid at the time of
agreement. The respondent firm purchased the stamp papers and got the sale deed typed. In this
case also the vendor failed to fulfil the condition of agreement and to execute the sale deed.
Consequently, the respondent firm filed another suit for specific performance of the contract in
the Court of District Judge, Jaipur city. It was also transferred to the Court of additional district
Judge No. 1, Jaipur city under registration No. 151/91. The suit was decreed vide judgment and
decree dated 2nd February, 1994 and the respondent firm was directed to deposit the
remaining amount of Rs. 40,000/- and the judgment debtor would execute the sale deed. If the
judgment debtor fails to comply with the decree, the decree holder would be entitled to get the
sale deed registered and to get the possession. In compliance of the judgment and decree passed
by the Court, the respondent firm deposited an amount of Rs. 40,000/- in the Court but the
judgment debtor did not execute the sale deed. The execution application No. 15/94 was filed
before the Court of Additional District Judge No. 1, Jaipur city. Both these applications No. 5/94
and 16/94 were taken up by the executing Court and the respondent firm was directed to submit
the stamp papers for the execution of the two sale deeds. The stamp papers for a sum of
Rs.14,100/- and Rs.5,000/- for execution of the sale deeds in respect of properties purchased for
a sum of Rs. 1,41,000/- and Rs. 50,000/- respectively, were submitted by the respondent firm.
The learned executing Court executed the sale deeds and sent the same on 17th March, 1995
for registration before the Sub-Registrar, Registration Department, Collectorate Bani Park,
Jaipur. The Sub-Registrar exercising its powers under Section 47-A(1) of the Stamp Act sent
these two sale deeds to Collector (Stamps) Jaipur for determining the market value and to assess
the charge of the stamp duty. The Collector (Stamps) registered these two cases No.442/95 and
443/95 of the respondent firm and passed the order dated 5th March, 1997. In case No.442/95 he
assessed value of the property as Rs. 5,60,000/- and deficient stamp duty was raised to the extent
of Rs. 41,900/- and deficient registration fees as Rs.1500/- and he also levied the penalty of Rs.
1000/-. Thus, the total amount against the respondent firm raised was Rs. 44,400/-. In the second
case No. 443/95 he assessed value of the property as Rs. 3,87,580/- and deficient stamp duty
to the extent of Rs.33,758/- and deficient registration fees as Rs. 1500/- and the penalty of Rs.
1000/-. Thus the total amount directed to be recovered from the respondent firm was Rs. 36,258/-.
The respondent firm filed writ petition challenging both these orders and the contention of the
respondent firm was that the valuation of the property should be taken when the agreement of
sale deed was executed, and not at the time of the registration of the sale deed. The learned
Single Judge relying on the judgment in the case of Sub-Registrar, Kodad Town and Mandal v.
Amaranaini China Venkat Rao and others, AIR 1998 AP 252, allowed the writ petition and
observed that since the vendor backed out and did not execute the sale deed of the property in
pursuance of the agreement on 20th October, 1983 therefore, the respondent firm filed a suit for
specific performance of contract in 1986 and the suit was decreed. The respondent firm was ready
and willing to pay the amount, and therefore, it was not his fault. The same was the position
regarding the second suit which was filed in 1991. The learned Judge after considering the
matter directed to set aside both the orders and held that for the purpose of charging stamp
duty, etc, the relevant date for assessment of the market value shall be the date on which the
suit for specific performance of the agreement to sale was filed. Consequently the order dated 4th
March, 1997 (Annexures 5 and 6) was quashed and the authorities were directed to pass a fresh
order regarding the market value of the property in question for the purpose of levy of the stamp
duty as on the date of filing of the suit and also directed to undertake this exercise keeping in
view the observation of the judgment within a period of one month from the date of receipt of the
certified copy of the order after notice to respondent firm.
4. Aggrieved against this order, an appeal was preferred before the Division Bench of the
Rajasthan High Court at Jaipur Bench and the Division Bench affirmed the order of the learned
single Judge. Aggrieved against the order of the Division Bench, the present appeal was
preferred by the State of Rajasthan & Ors., appellants herein.
5. We have heard learned counsel for the parties and perused the records.
6. The question is whether the valuation should be assessed on the market rate prevailing
at the time of registration of the sale deed or when the parties entered into agreement to sell.
7. Learned counsel for the State has submitted that the Stamp Act is a taxing statute and a
taxing statute has to be construed strictly. Whatsoever may have been the consideration for
the vendor not to get the sale deed executed is a matter between both the parties, but when the
matter is before the registering Authority the registering Authority has to see the valuation of the
property at the market rate at the time of the registration as per Section 17 of the Act. Therefore,
a notice under Section 47-A of the (Rajasthan Amendment) Stamp Duty Act was given and
proper valuation was determined for registration. As against this, the learned counsel for the
respondent submitted that Section 3 of the Act is a charging section. The registering authority has
to see the instrument and the consideration mentioned therein for payment of duty as per
Section 27 of the Act. If he finds it undervalued then he can hold an inquiry with regard to
market value which was prevailing at the time of agreement to sell.
8. In order to appreciate the controversy involved in the matter, it is necessary to
reproduce the relevant provisions of the Stamp Act which are as under:
Section 2(12) of the Act reads as under:
“(12) “Executed”, and “execution”, used with reference to instruments, mean “signed”
and “signature”.”
Section 3 of the Act reads as under:
“3. Instruments chargeable with duty.—Subject to the provisions of this Act
and the exemptions contained in Schedule I, the following instruments shall be
chargeable with duty of the amount indicated in that Schedule as the proper duty
therefore, respectively, that is to say—
(a) every instrument mentioned in that Schedule which, not having been previously
executed by any person, is executed in (India) on or after the first day of July,
1899;
 (b) every bill of exchange payable otherwise than on demand or promissory note
drawn or made out of India on or after that day and accepted or paid, or
presented for acceptance or payment, or endorsed, transferred or otherwise
negotiated, in India; and
(c) every instrument (other than a bill, exchange or promissory note) mentioned in
that Schedule, which, not having been previously executed by any person, is
executed out of India on or after that day relates to any property situate, or to
any matter or thing done or to be done, in India and is received in India:
Provided that no duty shall be chargeable in respect of—
(1) any instrument executed by, or on behalf of, or in favour of, the Government in
cases where, but for this exemption, the Government would be liable to pay the
duty chargeable in respect of such instrument;
(2) any instrument for the sale, transfer or other disposition, either absolutely or by
way of mortgage or otherwise, of any ship or vessel, or any part, interest, share or
property of or in any ship or vessel, registered under the Merchant Shipping Act,
1894, or under Act 19 of 1938, or the Indian Registration of Ships Act, 1841 (10
of 1841) as amended by subsequent Acts.
(3) Any instrument executed, by or on behalf of, or in favour of the Developer, or
Unit or in connection with the carrying out of purposes of the Special
Economic Zone.”
Section 17 of the Act reads as under:
“17. Instruments executed in India.—All instrument chargeable with duty and
executed by any person in India shall be stamped before or at the time of
execution.”
Section 27 of the Act reads as under:
“27. Facts affecting duty to be set forth in instrument.—The consideration (if any)
and all other facts and circumstances affecting the chargeability of any
instrument with duty, or the amount of the duty with which it is chargeable, shall
be fully and truly set forth therein.”
Section 47-A inserted by Rajasthan (Amendment) State Stamp Act reads as under:
“Section 47-A. Instruments under-valued, how to be valued.—(1) Notwithstanding
anything contained in the Registration Act, 1908 (Central Act XVI of 1908) and the rules
made thereunder as in force in Rajasthan where in the case of any instrument relating to
an immovable property chargeable with an ad valorem duty on the market value of the
property as set forth in the instrument, the registering officer has, while registering the
instruments, reason to believe that the market value of the property has not been truly set
forth in the instrument, he may either before or after registering the instrument, send it in
original to the Collector for determination of the market-value and to assess and
charge the duty in conformity with such determination together with a penalty not
exceeding ten-times the deficient stamp duty chargeable and surcharge, if any, payable on
such instrument.
(2) On receipt of the instrument under sub-section (1), the Collector shall, after
giving the parties a reasonable opportunity of being heard and after holding an
enquiry in the prescribed manner determine the market-value and the duty
including penalty and surcharge, if any, payable thereon; and if the amount of
duty including penalty and surcharge, if any, already paid, is deficient, the
deficient amount shall be payable by the person liable to pay the duty including
penalty and surcharge, if any.
 (2-A) Where it appears to a person having by law or consent of parties
authority to receive evidence or a person in charge of a public office, during the
course of inspection or otherwise, except an officer of a police, that an instrument
is undervalued, such person shall forthwith make a reference to the
Collector in that matter.
(3) The Collector may, suo motu, or on a reference made under sub-section (2-A)
call for and examine any instrument not referred to him under sub-section (1),
from any person referred to in sub-section (2-A) or the executant or any other
person for the purpose of satisfying himself as to the correctness of the market-
value of such property has not been truly set forth in the instrument, he may
determine in accordance with the procedure provided in sub-section (2), the
market-value and the amount of stamp duty together with a penalty not exceeding
ten times the deficient stamp duty chargeable on it, which shall be payable
by the person liable to pay the stamp duty and penalty.
(4) Where for any reason the original document called for by the Collector under
sub-section (3) is not produced or cannot be produced, the Collector may after
recording the reasons for its non-production call for a certified copy of the entries
of the document from the registering officer concerned and exercise the powers
conferred on him under sub-section (3).
(5) For the purpose of enquiries under this section, the Collector shall have
power to summon and enforce the attendance of witnesses including the
parties to the instrument or any of them, and to complete the production of
documents by the same means, and so far as may be in the same manner, as is
provided in the case of Civil Court under Code of Civil Procedure, 1908 (Central
Act V of 1908).”
9. The contention of the learned counsel for the State that as per Section 17 of the Act, the
market value has to be taken into consideration because Section 17 stipulates that all the
instruments chargeable with duty and executed by person of India shall be stamped before or “at
the time of execution”. The word “execution” has been defined in Section 2(12) of the Act which
says that “Execution” used with reference to the instruments, mean “signed” and
“signature”. Therefore, it shows that the document which is sought to be registered has to be
signed by both the parties. Till that time the document does not become an instrument for
registration. A reading of Section 2(12) with Section 17 clearly contemplates that the document
should be complete in all respects when both the parties should have signed it with regard to the
transfer of the immovable property. It is irrelevant whether the matter had gone in for
litigation.
10. It may be mentioned that there is a difference between an agreement to sell and a
sale. Stamp duty on a sale has to be assessed on the market value of the property at the time of
the sale, and not at the time of the prior agreement to sell, nor at the time of filing of the suit.
This is evident from Section 17 of the Act. It is true that as per Section 3, the instrument is to be
registered on the basis of the valuation disclosed therein. But Section 47-A of the Rajasthan
(Amendment) Stamp Duty Act contemplates that in case it is found that properties are under-
valued then it is open for the Collector (Stamps) to assess the correct market value. Therefore, in
the present case when the registering authority found that valuation of the property was not
correct as mentioned in the instrument, it sent the document to the Collector for ascertaining
the correct market value of the property. The expression “execution” read with Section 17 leaves
no manner of doubt that the current valuation is to be seen when the instrument is sought to be
registered. The Stamp Act is in the nature of a taxing statute, and a taxing statute is not
dependant on any contingency. Since the word “execution” read with Section 17 clearly says that
the instrument has to be seen at the time when it is sought to be registered and in that if it is
found that the instrument has been undervalued then it is open for he registering authority to
enquire into its correct market value. The learned single Judge as well as the Division Bench in
the present case had taken into consideration that the agreement to sell was entered into but it
was not executed.
Therefore, the incumbent had to file a suit for seeking a decree for execution of the
agreement and that took a long time. Therefore, the Courts below concluded that the valuation
which was in the instrument should be taken into account. In our opinion this is not a correct
approach. Even the valuation at the time of the decree is also not relevant. What is relevant
in fact is the actual valuation of the property at the time of the sale. The crucial expression used in
Section 17 is “at the time of execution”. Therefore, the market value of the instrument has to be
seen at the time of the execution of the sale deed, and not at the time when agreement to sale was
entered into. An agreement to sell is not a sale. An agreement to sell becomes a sale after both
the parties signed the sale deed. A taxing statute is not contingent on the inconvenience of the
parties. It is needless to emphasize that a taxing statute has to be construed strictly and
considerations of hardship or equity have no role to play in its construction. Viscount Simon
quoted with approval a passage from Rowlatt, J. expressing the principle in the following
words “In a taxing Act one has to look merely at what is clearly said. There is no room for any
intendment. There is no equity about a tax. There is no presumption as to tax. Nothing is to be
read in, nothing is to be implied. One can only look fairly at the language used.”
11. The same view was expressed by Hon’ble Bhagwati, J. in the case of A.V. Fernandez
v. State of Kerala, AIR 1957 SC 657. The principle is as follows:
“In construing fiscal statutes and in determining the liability of a subject to tax one must
have regard to the strict letter of the law. If the revenue satisfies the Court that the case
falls strictly within the provisions of the law, the subject can be taxed. If on the other
hand, the case is not covered within the four corners of the provisions of the taxing
statute, no tax can be imposed by inference or by analogy or by trying to probe into the
intention of the Legislature and by considering what was the substance of the matter.”
Hon’ble Shah, J. has formulated the principle thus:
“In interpreting a taxing statute, equitable considerations are entirely out of place. Nor
can taxing statutes be interpreted on any presumptions or assumptions. The Court must
look squarely at the words of the statute and interpret them. It must interpret a taxing
statute in the light of what is clearly expressed; it cannot imply anything which is not
expressed; it cannot import provisions in the statute so as to supply any assumed
deficiency.”
Therefore, a taxing statute has to be read as it is. In other words, the literal rule of
interpretation applies to it.
12. In this back-ground, if we construe Section 17 read with Section 2(12) then there
is no manner of doubt that at the time of registration, the Registering Authority is under an
obligation to ascertain the correct market value at that time, and should not go by the value
mentioned in the instrument.
13. Learned counsel for the respondent submitted that if we construe Section 3 read
with Section 27 of the Act then the Registering Authority is under an obligation to only see the
value mentioned in the instrument. In our opinion Section 3 which is the charging section
cannot be read in isolation but has to be read along with Section 17 of the Act. From a
composite reading of Sections 3,17 and 27, it becomes abundantly clear that the valuation given
in an instrument is not conclusive. If any doubt arises in the mind of the Registering
Authority that the instrument is under-valued then as per Section 47-A of the Rajasthan
(Amendment) the instrument can be sent to the Collector for determination of the correct market
value. Under Section 47-A read with Sections 3, 17 and 27, it becomes clear that the
Registering Authority has to ascertain the correct valuation given in the instrument regarding
market value of the property at the time of the sale.
14. Learned counsel for the respondent strenuously urged before us that in fact when the
agreement to sell was not executed by the vendor, the respondent had no option but to file a suit
and a long time was taken for obtaining a decree for execution of the agreement. He was not at
fault and as such the valuation given in the instrument should be taken into consideration because
during the litigation the valuation of the property has shot up. In this connection, learned
counsel has invited our attention to the principle “Actus curie neminem gravabit” meaning
thereby that no person shall suffer on account of litigation. Hence learned counsel submitted
that since the matter had been in the litigation for a long time, the respondent cannot be made to
suffer. He invited our attention to the decision of the Andhra Pradesh High Court Sub-
Registrar, Kodad Town and Mandal (supra). It is true that no one should suffer on account of the
pendency of the matter but this consideration does not affect the principles of interpretation of a
taxing statute. A taxing statute has to be construed as it is all these contingencies that the
matter was under litigation and the value of the propeprty by that time shot up cannot be taken
into account for interpreting the provisions of a taxing statute. As already mentioned above a
taxing statute has to be construed strictly and if it is construed strictly then the plea that the
incumbent took a long time to get a decree for execution against the vendor that consideration
cannot weigh with the Court for interpreting the provisions of the taxing statutes. Therefore,
simply because the matter have been in the litigation for a long time that cannot be a
consideration to accept the market value of the instrument when the agreement to sale was
entered. As per Section 17, it clearly says at the time when registration is made, the valuation is
to be seen on that basis.
15. In the case of Sub-Registrar, Kodad Town and Mandal (supra), the learned single
Judge of the Andhra Pradesh High Court felt persuaded on account of 30 years’ long
litigation and therefore, declined to send the papers back to the Collector for valuation at the
market value. With great respect, the view taken by the learned single Judge is against the
principles of interpretation of a taxing statute. Therefore, we are of the opinion that the view
taken by the learned single Judge of the Andhra Pradesh High Court is not correct.
16. Accordingly, we are of the opinion that the view taken by the learned single Judge as
well as by the Division Bench cannot be sustained and the same is set aside. The Collector
shall determine was the valuation of the instrument on the basis of the market value of the
property at the date when the document was tendered by the respondent for registration, and the
respondent shall pay the stamp duty charges and surcharge, if any, as assessed by the Collector
as per the provisions of the Act. The appeal of the State is allowed. No order as to costs.
Appeal allowed.

[2008 (1) T.N.C.J. 636 (SC)]

SUPREME COURT
BEFORE:
ASHOK BHAN AND D. K. JAIN, JJ.
SUNIL KUMAR ...Petitioner
Versus
RAM SINGH GAUD AND OTHERS ...Respondents
 [Civil Appeal No.5108 of 2007 (Arising out of SLP (C) No.19611 of 2005), decided on 2 nd
November, 2007]
Motor Vehicles Act, 1988—Sections 163-A, 166 and 173— Compensation—Award
of Rs.72,000/- along with interest @ 6% p.a. from the date of claim petition till payment—
Legality of—45% permanent disability suffered considered by the Tribunal— Claimant
was working as a driver aged about 29 years at the time of accident—Fracture of tibia—
Doubtful if the claimant can even drive again or pursue some other vocation—Not be able
to earn as much as he is earning now—Earning capacity reduced due to disability—
Required to be compensated for the loss of earning due to the injuries suffered in the
accident—Income was Rs. 4,000/- p.m.—Capacity to earn in future would be reduced to
Rs.1,800/- p.m. approximately—Deduction of 1/3rd towards miscellenous expenses—Loss of
income comes to Rs.1200/- p.m.—Equal to Rs.14,400/- p.a.—Age of claimant 29 years at the
time of accident—Use of multiplier of 18 per schedule—Total loss of income comes to
Rs.2,59,000/-—Award of such amount in addition to the sum already awarded by the
Tribunal @ 6% interest.
(Paras 8 to 10).
Important Point
Disability suffered by the claimant in the accident would surely reduce his earning
capacity, the claimant is required to be compensated for the loss of earning due to the injuries
suffered by him in the accident.
JUDGMENT
ASHOK BHAN, J.—Leave granted.
2. Factual background of the case is that on 10th July, 2003, appellant was driving his
mini truck No.MP 20 G-7705 towards Bargi along with one Ramesh Prajapati. When the mini
truck reached Chulha Gulhai, a truck dumper bearing No.MP 18-6392 came from the opposite
side, which was being driven in rash and negligent manner and hit the mini truck of the appellant
with the result that the appellant sustained grievous injuries on his leg. He suffered three fractures
including one at tibia. He was examined by the Medical Board. After examining the injuries,
Board came to the conclusion that the appellant had suffered 45% permanent disability. Appellant
was 29 years of age at the time of accident and was working as a driver and earning Rs.4,000/-
per month.
3. FIR was lodged. A claim was also filed against the owner of truck dumper as well as the
insurance company before the Motor Accident Claims Tribunal (for short ‘the Tribunal’) for
compensation under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act’), inter
alia, stating that in the accident, appellant suffered fracture in his tibia and two other
places. Appellant claimed Rs.8,20,000/- by way of compensation.
4. Tribunal by its order dated 25th June, 2004 awarded a compensation of Rs.45,000/- for
the 45% permanent disability suffered by the appellant; Rs.21,000/- towards the amount spent on
the treatment and Rs.6,000/- for physical pain and mental agony suffered by the appellant. Thus,
a total sum of Rs.72,000/- was awarded as compensation along with interest @ 6% per annum
from the date of the claim petition till payment.
5. Being aggrieved, appellant filed an appeal in the High Court of Madhya Pradesh at
Jabalpur which has been dismissed by the impugned order.
6. Learned counsel appearing for the appellant contends that as a result of the impact of
injuries suffered by the appellant, the appellant cannot pursue his vocation of driving any longer
and the Tribunal as well as the High Court have grossly erred in not awarding any compensation
towards the loss of his earning capacity. That, keeping in view the injuries suffered by him, the
compensation awarded is too low. Counsel appearing for the Oriental Insurance Company
Limited, respondent No.3, has supported the judgment and order passed by the Courts below.
7. Learned counsels for the parties have been heard at length.
8. We find substance in the submission put forth by the counsel for the appellant. The
Tribunal as well as the High Court have not awarded any compensation towards loss of future
income. After the fracture of tibia, it is doubtful if the appellant can even drive again. Even if he
pursues some other vocation, he would not be able to earn as much as he is earning now. The
disability suffered by the appellant would surely reduce his earning capacity. Therefore, the
appellant is required to be compensated for the loss of earning due to the injuries suffered by him
in the accident.
9. Taking into consideration the present income of the appellant as Rs.4,000/- per month;
and the permanent disability of 45% suffered by him, we are of the view that the capacity of the
appellant to earn in future would be reduced by Rs.1,800/- per month approximately. If 1/3rd is
deducted towards miscellaneous expenses, the loss of income comes to Rs.1,200/- per month
which, in turn, comes to Rs.14,400/- per annum. Appellant was 29 years of age at the time of
accident. Taking the multiplier to be 18 (as per the Second Schedule to Section 163-A of
the Act), the total loss of income comes to Rs.2,59,200/-.
10. For the reasons stated above, the loss of income is assessed at Rs.2,59,200/-. The
appellant would be entitled to the aforesaid amount in addition to the sum already awarded by the
Tribunal, which has been upheld by the High Court. The appellant would be entitled to interest at
the same rate, i.e., 6% per annum on the enhanced amount as well from the date of filing of the
claim petition till realization.
11. Accordingly, the appeal is accepted and the order passed by the Courts below stands
modified to the extent indicated above.
Appeal accepted.

[2008 (1) T.N.C.J. 638 (SC)]

SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND LOKESHWAR SINGH PANTA, JJ.
LUCKNOW DEVELOPMENT AUTHORITY ...Appellant
Versus
KRISHNA GOPAL LAHOTI AND OTHERS ...Respondents
[Civil Appeal No.5112 of 2007 (Arising out of SLP (C) No. 12446 of 2005), decided on 2 nd
November, 2007]
(A) Land Acquisition Act, 1894—Sections 11, 18, 23 and 54—Market value—Fixation
of—Principles with reference to comparable sales—When sale is within a reasonable
time of the date of notification under Section 4(1)—It should be a bona fide transaction—It
should be of the land acquired or of the land adjacent to the land acquired—And it
should possess similar advantages—Factors merit a consideration as a comparable case—
Taking into account the general principles and the factual scenario, market value fixed
as Rs.8/- sq. ft. sustained—1/3 rd
deduction allowed towards development charges—
Entitlement to compensation to be worked out on that basis.
 (Paras 18, 19, 25 and 26)
(B) Development charges—Deduction in respect of—Depend upon the facts of each
case—A claimant who claims that his land is fully developed and nothing more is required
to be done for development purposes—Must show on the basis of evidence that it is such a
land and it is so located. (Para 22)
(C) Land Acquisition Act, 1894—Where large area of land is subject-matter of
acquisition, rate at which small plots are sold cannot be said to be a safe criterion.
(Para 15)
Case law.—AIR 1971 SC 2015; AIR 1977 SC 1560; AIR 1984 SC 892; 1989 (1) SVLR (C)
399; AIR 1959 SC 429; 2003 (4) SCC 481; 2003 (1) SCC 354; 2004 (10) SCC 745; 2004 (12)
SCC 425; 2003 (12) SCC 642; AIR 1939 P.C. 98.
Important point
The fact that area is developed or adjacent to a developed area will not ipso facto make
every land situated in the area also developed to be valued as a building site or plot, particularly,
when vast tracts are acquired for development purpose.
JUDGMENT
DR. ARIJIT PASYAT, J.—Leave granted.
2. Challenge in this appeal is to the judgment of a Division Bench of the Allahabad High
Court, Lucknow Bench dismissing the appeal filed by the appellant under Section 54 of the Land
Acquisition Act, 1894 (in short the ‘Act’) read with Section 96 of the Code of Civil Procedure,
1908 (in short ‘CPC’).
3. In the First Appeal challenge was to the award dated 18.2.1998 passed by the Presiding
Officer, Nagar Mahapalika Tribunal, Lucknow in a reference under Section 18 of the Act in land
case No.746 of 1991 titled Krishna Gopal Lahoti v. State of U.P.
4. The factual background in a nutshell is as follows:
A large area of land measuring 194 bigha 19 biswa 14 biswansi and 14 kachwansi situated
in village Purania and Mahibullapur was sought to be acquired by appellant-Lucknow
Development Authority under the housing and development scheme known as “Timber Nagar
Avasiya Yojana”. Khasra plot No.379 measuring 8 bigha, and Khsra plot No.394 measuring 2
bigha, 8 biswa 15 biswansi situated at village Mahibullapur and belonging to the claimants
Krishna Gopal Lahoti, Sharad Kumar Lahoti, Sunil Kumar Lahoti and Sudhir Kumar Lahoti were
also acquired under the said scheme. The relevant notification under Section 4 was issued on
26.3.1986. The notification under Section 6 of the Act was published on 28.5.1986. The
possession of the acquired land was taken on 17.12.1986 and Award under Section 11 of the Act
was made on 27.5.1988 by the Special Land Acquisition Officer. The Special Land Acquisition
Officer in his Award under Section 11 of the Act determined the market value of the land in
question at the rate of Rs.2.20 per sq. ft.
5. Aggrieved by the aforesaid Award, reference under Section 18 was preferred by the land
owners, inter alia, stating that adjoining to the land in question, there is Lucknow-Sitapur
Highway and nearby the acquired land there are number of colonies such as Aliganj Colony,
Kapurthala Complex, P & T Colony, Arif Complex, Public Service Commission and Office
of Geological Survey of India.
6. According to the landowners, the land in question has great potential value and the
market value as determined by the Special Land Acquisition Officer is quite inadequate. The
market value of the land at the rate of Rs.60/- per sq.ft. was claimed by the respondents besides
statutory benefit under Act 68 of 1984.
 7. The Lucknow Development Authority and the State of U.P. filed written statements
separately. It was stated that the compensation as determined and awarded by the Special Land
Acquisition Officer is quite adequate and the claimants are not entitled to the benefits of the
provisions of Act 68 of 1984. It was stated that claim petition is barred by time. It is also barred
by the provisions of the Urban Land Ceiling Act, 1976 (in short ‘ULC’ Act) and by the
provisions of Section 31 of the Act.
8. Both the parties led oral and documentary evidence.
9. The learned Tribunal could not find any substance in the pleas raised by the appellants
regarding claim being barred under various heads as alleged in the written statements and all the
issues were decided in negative against the appellant. The Tribunal further found that the
claimants are entitled to the benefit of provisions of Act of 68 of 1984 and on the basis of the
evidence on record, the Tribunal determined the market value of the land at Rs.6/- per sq. ft.
and accordingly compensation was awarded by the impugned Award.
10. Against the Award, the First Appeal was filed before the High Court. Primarily, it was
contended before the High Court that the Tribunal had not properly evaluated the evidence on
record and wrongly placed reliance on a sale deed relating to a small piece of land. It was also
submitted that without any proper appreciation of materials on record the compensation was
enhanced.
11. Stand of the respondents before the High Court was that there was no illegality in the
award passed by the reference Court. It was submitted that the land was situated near densely
populated area having great potential value and the appellate authority is selling the same land
at the rate of Rs.300/- per sq. ft. The Reference Court on the basis of oral and documentary
evidence has awarded compensation at the rate of Rs.6/- per sq. ft. along with other benefits as
provided under the Act. The High Court found that the claimants had filed number of sale deeds
of varying rates ranging between Rs.10/- per sq. ft. to Rs.5/- per sq. ft. but the sale deed relating
to the plot No.166 situated at Mahibullahpur was relied upon by the Tribunal and the reasons for
enhancing the compensation were assigned which according to the High Court did not call for
any interference. The High Court did not find any substance in the plea of the appellant that the
sale deed (Ex.C-38) was unduly relied upon by the Tribunal. It was pointed out that the sale deed
is related to a very small piece of land as against the large area of more than 10 bighas involved
in the present case. The High Court referred to certain decisions of this Court to hold that while
determining the market value of the land, the potentiality of the land is a very material
consideration and several factors like location of the land, its surroundings, available facilities
thereon in the vicinity, nature of the land have to be taken into account. The High Court also
found that there was no similarity between the land which was the subject matter of dispute in
land acquisition case No.204 of 1992 where the rate fixed was Rs.1.85 per sq. ft.
12. The High Court further found that two sale deeds (Ga 26 and Ga 27) reflected that the
rate was Rs.3/- per sq. ft. However, instances were referred to in holding that the market value is
much higher. After granting deduction of 25% on account of expenses to be incurred towards
plotting and development charges, the rate was fixed at Rs.6/- per sq. ft. Therefore, the High
Court did not find any substance in the stand that the deduction should be at least 40% and not
25% as done. Accordingly, appeal as noted above was dismissed.
13. In support of the appeal, learned counsel for the appellant reiterated the stand taken
before the High Court.
14. In response, learned counsel for the respondents submitted that three sale deeds
namely, C-38, 39 and 40 clearly show that rate is much higher. It was pointed out that this Court
has depending on the facts of the case, allowed deductions ranging between 20% to 33%. That
cannot be a hard and fast rule and in fact it would depend upon various factors.
 15. Where large area is the subject-matter of acquisition, rate at which small plots are sold
cannot be said to be a safe criterion. Reference in this context may be made to three decisions of
this Court in The Collector of Lakhimpur v. Bhuban Chandra Dutta, AIR 1971 SC 2015,
Prithvi Raj Taneja (dead) by Lrs. v. The State of Madhya Pradesh and anr., AIR 1977 SC 1560
and Smt. Kausalya Devi Bogra and Ors. etc. v. Land Acquisition Officer, Aurangabad and anr.,
AIR 1984 SC 892.
16. It cannot, however, be laid down as an absolute proposition that the rates fixed for the
small plots cannot be the basis for fixation of the rate. For example, where there is no other
material it may in appropriate cases be open to the adjudicating Court to make comparison of
the prices paid for small plots of land. However, in such cases necessary deductions/adjustments
have to be made while determining the prices.
17. In the case of Suresh Kumar v. Town Improvement Trust, Bhopal, (1989 (1) SVLR (C)
399) in a case under the Madhya Pradesh Town Improvement Trust Act, 1960 this Court held
that the rates paid for small parcels of land do not provide a useful guide for determining the
market value of the land acquired. While determining the market value of the land acquired it has
to be correctly determined and paid so that there is neither unjust enrichment on the part of the
acquirer nor undue deprivation on the part of the owner. It is an accepted principle as laid down
in the case of Vyricherla Narayana Gajapatiraju v. Revenue Divisional Officer, Vizagapatam,
AIR 1939 P.C. 98, that the compensation must be determined by reference to the price which a
willing vendor might reasonably expect to receive from the willing purchaser. While
considering the market value, disinclination of the vendor to part with his land and the urgent
necessity of the purchaser to buy it must alike be disregarded, neither must be considered
as acting under any compulsion. The value of the land is not to be estimated as its value to the
purchaser. But similarly this does not mean that the fact that some particular purchaser might
desire the land more than others is to be disregarded. The wish of a particular purchaser, though
not his compulsion may always be taken into consideration for what it is worth. Section 23 of
the Act enumerates the matters to be considered in determining compensation. The first criterion
to be taken into consideration is the market value of the land on the date of the publication of the
notification under Section 4(1). Similarly, Section 24 of the Act enumerates the matters which the
Court shall not take into consideration in determining the compensation. A safeguard is provided
in Section 25 of the Act that the amount of compensation to be awarded by the Court shall
not be less than the amount awarded by the Collector under Section 11. Value of the potentiality
is to be determined on such materials as are available and without indulgence in any fits
of imagination. Impracticability of determining the potential value is writ large in almost all
cases. There is bound to be some amount of guess work involved while determining the
potentiality.
18. It can be broadly stated that the element of speculation is reduced to minimum if the
underlying principles of fixation of market value with reference to comparable sales are made:
(i) when sale is within a reasonable time of the date of notification under Section 4(1);
(ii) it should be a bona fide transaction;
(iii) it should be of the land acquired or of the land adjacent to the land acquired; and
(iv) it should possess similar advantages.
19. It is only when these factors are present, it can merit a consideration as a comparable
case (See The Special Land Acquisition Officer, Bangalore v. T. Adinarayan Setty, AIR 1959 SC
429).
20. These aspects have been highlighted in Ravinder Narain and anr. v. Union of India,
2003 (4) SCC 481.
 21. The deduction to be made towards development charges cannot be proved in any strait-
jacket formula. It would depend upon the facts of each case.
22. It is well settled that in respect of agricultural land or undeveloped land which has
potential value for housing or commercial purposes, normally 1/3rd amount of compensation has
to be deducted out of the amount of compensation payable on the acquired land subject to certain
variations depending on its nature, location, extent of expenditure involved for development
and the area required for roads and other civic amenities to develop the land so as to make the
plots for residential or commercial purposes. A land may be plain or uneven, the soil of the land
may be soft or hard bearing on the foundation for the purpose of making construction; may be the
land is situated in the midst of a developed area all around but that land may have a hillock or
may be low-lying or may be having deep ditches. So the amount of expenses that may be incurred
in developing the area also varies. A claimant who claims that his land is fully developed and
nothing more is required to be done for developmental purposes, must show on the basis of
evidence that it is such a land and it is so located. In the absence of such evidence, merely saying
that the area adjoining his land is a developed area, is not enough particularly when the extent of
the acquired land is large and even if a small portion of the land is abutting the main road in the
developed area, does not give the land the character of a developed area. In 84 acres of land
acquired even if one portion on one side abuts the main road, the remaining large area where
planned development is required, needs laying of internal roads, drainage, sewer, water,
electricity lines, providing civil amenities etc. However, in cases of some land where there are
certain advantages by virtue of the developed area around, it may help in reducing the
percentage of cut to be applied, as the developmental charges required may be less on that
account. There may be various factual factors which may have to be taken into consideration
while applying the cut in payment of compensation towards developmental charges, maybe in
some cases it is more than 1/3rd and in some cases less than 1/3rd. It must be remembered that
there is difference between a developed area and an area having potential value, which is yet to be
developed. The fact that an area is developed or adjacent to a developed area will not ipso facto
make every land situated in the area also developed to be valued as a building site or plot,
particularly, when vast tracts are acquired, as in this case, for development purpose.
23. The aforesaid aspects were highlighted in Kasturi and Ors. v. State of Haryana, 2003
(1) SCC 354.
24. A reference may also be made to what has been stated in Kiran Tandon v. Allahabad
Development Authority and anr., 2004 (10) SCC 745, State of West Bengal v. Kedarnath
Rajgarhia Charitable Trust Estate, 2004 (12) SCC 425 and V. Hanumantha Reddy (dead) by
Lrs. v. Land Acquisition Officer and Mandal R. Officer, 2003 (12) SCC 642.
25. Keeping in view the general principles and the factual scenario as evident from the
materials brought on record, we sustain the market value fixed (i.e. Rs.8/- sq.ft.) but instead of
25% development charges one-third has to be deducted. The entitlements shall be worked out on
that basis.
26. The appeal is allowed to the aforesaid extent with no order as to costs.
Appeal allowed.

[2008 (1) T.N.C.J. 645 (SC)]

SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND LOKESHWAR SINGH PANTA, JJ.
ORIENTAL INSURANCE CO. LTD. ...Petitioner
 Versus
SMT. RAJ KUMARI AND OTHERS ...Respondents
[Civil Appeal No.5209 of 2007 (Arising out of SLP (C) No.2511 of 2006), decided on 14 th
November, 2007]
(A) Compensation—Award of Rs. 57,600/-—Enhanced on appeal to Rs. 1,25,200/-—
Liability of insurer limited to Rs.50,000/-—Direction to pay the amount first to claimants
and recover amount in excess of Rs.50,000/- from the owner and driver of the offending
vehicle—Legality of—Insured was a private limited company doing transport business—
No material to show that the claimants would have any difficulty in recovering the awarded
amount from it—Direction modified to the extent that the insurer shall pay an amount of
Rs.50,000/- with interest awarded to claimants—Balance amount to be paid by the
insured—Rate of interest fixed considering the date of accident—No interference
warranted. (Paras 16 to 18)
(B) Precedent—To be followed only so far as it makes the path of justice.
(Para 15)
(C) Practice and procedure—Courts should not place reliance on decisions
without discussing as to how the factual situation fit in with the fact situation of the decision
on which reliance is placed. (Para 12)
Case law.—2002 (2) SCC 278; 1995 (2) SCC 539; 1998 (3) SCC 744; Civil Appeal No.
104 of 2000;—disposed of on 10.1.2003; 1998 (1) SCC 626; AIR 1968 SC 647; 1996 (6) SCC 44;
(1901) AC 495 (HL); 1951 AC 737; 1970 (2) All.ER 294; 1972 (2) WLR 537.
Important Point
Circumstantial flexibility, are additional or different fact may make a world of difference
between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is
not proper.
JUDGMENT
DR. ARIJIT PASAYAT, J.—Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single Judge of the Punjab
and Haryana High Court. By the impugned judgment, the High Court held that though the
liability of the appellant (hereinafter referred to as the ‘insurer’) was limited to Rs.50,000/- yet it
was to first pay the amount awarded to the claimants and recover amount in excess of Rs.50,000/-
from the owner and driver of the offending vehicle.
2(A) Factual position in a nutshell is as follows:
One Karan Singh, conductor of the bus No.DEP-3514 lost his life in an accident which
took place on 14.7.1984. The bus belonged to M/s Mewat Transport Company Private Limited
(hereinafter referred to as the ‘insured’). The bus was driven by deceased Karan Singh and it
dashed in a tanker No.HRG-2852. The impact was so intense and severe that several persons
sitting in the bus died, while many others sustained injuries. The widow, minor children and
parents of aforesaid Karan Singh lodged claim petition claiming compensation of Rs.1,40,000/-.
The Tribunal took several claim petitions together and in respect of the claim under
consideration awarded compensation of Rs.57,600/- along with 12% interest p.a. from the date of
institution of the claim petition. It was, however, held that liability of the insurer was limited to
Rs.50,000/-.
3. The claimants filed appeal before the Punjab and Haryana High Court. By the impugned
order the High Court enhanced claim of compensation to Rs.1,25,200/-. It was held, as was done
by the Tribunal, that the liability of the insurer was limited to Rs.50,000/- in terms of the
insurance policy. However, it was held that the entire amount was to be paid by the insurer to the
claimants and it was entitled to recover the amount in excess of Rs.50,000/- from the owner and
the driver of the vehicle.
4. In support of the appeal, learned counsel for the appellant submitted that having held
that the liability of the insurance company was limited to Rs.50,000/-, the High Court was not
justified in directing payment of the entire amount by it and to recover the differential amount.
5. There is no appearance on behalf of the respondents.
6. It would be appropriate to take a note of what was held by the Constitution Bench of this
Court in New India Assurance Co. Ltd. v. C.M. Jaya and Ors., 2002 (2) SCC 278. In that case it
was held, inter alia, as follows:
“In the circumstances, we hold that the liability of the appellant, insurance-company is
limited to Rs.50,000/-, as held by the Tribunal. In the view we have taken, it is
unnecessary to go into the question relating to either maintainability of cross-objections
before the High Court against the appellant alone or as to the enhancement of
compensation when the owner and driver have not filed appeal against the impugned
judgment.”
7. The questions that were considered by the Constitution Bench are as follows:
“1. The question involved in these appeals is whether in a case of insurance policy
not taking any higher liability by accepting a higher premium, in case of payment
of compensation to a third party, the insurer would be liable to the extent
limited under Section 95(2) or the insurer would be liable to pay the entire
amount and he may ultimately recover from the insured. On this question,
there appears to be some apparent conflict in the two three-Judge Bench decision
of this Court - (1) New India Assurance Co. Ltd. v. Shanti Bai, 1995 (2) SCC 539
and (2) Amrit Lal Sood v. Kaushalya Devi Thapar, 1998 (3) SCC 744.
2. In the latter decision, unfortunately the decision in New India Assurance case
(supra) has not been noticed though reference has been made to the decision of
this Court in National Insurance Co. Ltd. v. Jugal Kishore, (1998) 1 SCC 626,
which was relied upon in the earlier three-Judge Bench Judgment. In view of the
apparent conflict in these two three-Judge Bench decisions, we think it
appropriate that the records of this case may be placed before my Lord, the Chief
Justice of India to constitute a larger Bench for resolving the conflict. We
accordingly so direct. The record may now be placed before the Hon’ble the
Chief Justice of India.”
8. It would be evident from the conclusions of this Court the liability of the insurance
company would in the instant case be limited to quantum which was to be indemnified in terms of
the policy. The Tribunal and the High Court have held accordingly.
9. In Oriental Insurance Co. Ltd. v. Shakuntala Garg and Ors. (Civil Appeal No. 104 of
2000, disposed of on 10.1.2003), it was held as follows:
“Learned counsel for the appellant at this stage expressed an apprehension that by virtue
of the terms of the award, the appellant may be required to pay the entire amount and
recover it from the owner. In the light of the modification of the impugned Award, such
question does not arise.”
10. It is true that in certain cases this Court has, after looking into the fact situation,
directed the insurance company to make payment with liberty to recover the amount in excess of
the liability from the insured. Those decisions were given on the facts situation of the cases
concerned.
11. Reliance on the decision without looking into the factual background of the case
before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents
its own features. It is not everything said by a Judge while giving a judgment that constitutes a
precedent. The only thing in a Judge’s decision binding a party is the principle upon which the
case is decided and for this reason it is important to analyse a decision and isolate from it
the ratio decidendi. According to the well-settled theory of precedents, every decision
contains three basic postulates :—(i) findings of material facts, direct and inferential. An
inferential finding of facts is the inference which the Judge draws from the direct, or perceptible
facts; (ii) statements of the principles of law applicable to the legal problems disclosed by
the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority
for what it actually decides. What is of the essence in a decision is its ratio and not every
observation found therein nor what logically flows from the various observations made in the
judgment. The enunciation of the reason or principle on which a question before a Court has been
decided is alone binding as a precedent. [See: State of Orissa v. Sudhansu Sekhar Misra and Ors.,
AIR 1968 SC 647 and Union of India and Ors. v. Dhanwanti Devi and Ors., 1996 (6) SCC 44]. A
case is a precedent and binding for what it explicitly decides and no more. The words used
by Judges in their judgments are not to be read as if they are words in Act of Parliament. In Quinn
v. Leathem, (1901) AC 495 (H.L.), Earl of Halsbury LC observed that every judgment must be
read as applicable to the particular facts proved or assumed to be proved, since the generality
of the expressions which are found there are not intended to be exposition of the whole law but
governed and qualified by the particular facts of the case in which such expressions are found
and a case is only an authority for what it actually decides.
12. Courts should not place reliance on decisions without discussing as to how the factual
situation fits in with the fact situation of the decision on which reliance is placed. Observations of
Courts are neither to be read as Euclid’s theorems nor as provisions of the statute and that too
taken out of their context. These observations must be read in the context in which they appear to
have been stated. Judgments of Courts are not to be construed as statutes. To interpret words,
phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy
discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they
do not interpret judgments. They interpret words of statutes; their words are not to be interpreted
as statutes. In London Graving Dock Co. Ltd. v. Horton, 1951 AC 737 at p.761, Lord Mac
Dermot observed:
“The matter cannot, of course, be settled merely by treating the ipsissima vertra of
Willes, J. as though they were part of an Act of Parliament and applying the rules of
interpretation appropriate thereto. This is not to detract from the great weight to be given
to the language actually used by that most distinguished Judge.”
13. In Home Office v. Dorset Yacht Co., 1970 (2) All ER 294, Lord Reid said, ‘Lord
Atkin’s speech.....is not to be treated as if it was a statute definition. It will require qualification in
new circumstances. Megarry, J. in (1971) 1 WLR 1062 observed:
“One must not, of course, construe even a reserved judgment of Russell L.J. as if it were
an Act of Parliament.” And, in Herrington v. British Railways Board, 1972 (2) WLR
537, Lord Morris said:
“There is always peril in treating the words of a speech or judgment as though they
are words in a legislative enactment, and it is to be remembered that judicial utterances
made in the setting of the facts of a particular case.”
14. Circumstantial flexibility, one additional or different fact may make a world of
difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a
decision is not proper.
15. The following words of Lord Denning in the matter of applying precedents have
become locus classicus:
 “Each case depends on its own facts and a close similarity between one case and
another is not enough because even a single significant detail may alter the entire aspect,
in deciding such cases, one should avoid the temptation to decide cases (as said by
Cordozo) by matching the colour of one case against the colour of another. To decide
therefore, on which side of the line a case falls, the broad resemblance to another case is
not at all decisive.”
xxx xxx xxx
“Precedent should be followed only so far as it marks the path of justice, but you must cut
the dead wood and trim off the side branches else you will find yourself lost in thickets
and branches. My plea is to keep the path to justice clear of obstructions which could
impede it.”
16. In the instant case the insurer was a private limited company doing transport business.
There was no material placed before the High Court to show that the claimants would have any
difficulty in recovering the awarded amount from it. That being so, the High Court’s order is
modified to the extent that the insurer shall pay an amount of Rs.50,000/- with interest awarded to
claimants. The balance has to be paid by the insured.
17. Another point urged before this Court in support of the appeal was that the rate of
interest is high. The liability of the insurance company is limited to Rs.50,000/- with interest
@ 9% p.a. from the date of the application. The rate is being fixed considering the date of
accident. The insured shall forthwith make payment of the balance amount with interest to the
claimants and in any event not later than 3 months from the date of this order.
18. The appeal is allowed to the aforesaid extent with no order as to costs.
Appeal allowed.

[2008 (1) T.N.C.J. 650 (SC)]

SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND
LOKESHWAR SINGH PANTA, JJ.
SMT. BACHAHAN DEVI AND ANOTHER ...Petitioners
Versus
NAGAR NIGAM, GORAKHPUR AND ANOTHER ...Respondents
[Civil Appeal No. 992 of 2008 (Arising out of SLP (C) No. 24576 of 2004), decided on 5 th
February, 2008]
(A) Civil Procedure Code, 1908—Order XLI, Rule 25—Scope of—Provisions become
operative when the appellate Court comes to the conclusion about the omission on the part
of the lower Court to frame or try any issue—Once the appellate Court directs the lower
Court to do so, it is incumbent upon the trial Court to take additional evidence required.
(Para 16)
(B) Interpretation of Statutes—Use of word “shall” in a statue, though generally
taken in a mandatory sense, does not necessarily mean that in every case it shall have that
effect—The word “shall” is not always decisive. (Paras 28 and 29)
 (C) Words and phrases—Words are the skin of the language—Language is the
medium of expressing the intention and the object that particular provision or the Act
seeks to achieve.
(Para 29)
(D) Interpretation of Statutes—Use of word “may”—In a statutory provision would
not by itself show that the provisions is directory in nature.
(Para 31)
(E) Interpretation of Statutes—Use of two words “may” and “shall” in two different
parts of the same provision—Prima facie it would appear that the Legislature manifested its
intention to make one part directory and another mandatory—But that by itself is not
decisive—Power of Court to find out whether the provision is directory or mandatory
remains unimpaired.
(Para 34)
(F) Civil Procedure Code, 1908—Order XLI, Rule 25— Written statement—
Amendment of, during pendency of appeal—Certain additional issues framed—Matter
remanded before the trial Court for fresh decision—Appeal against—Remand order set
aside—Matter remanded before lower appellate Court for decision of appeal on merits—
Legality of—Interpretation of provisions of Order XLI, Rule 25—Determination of nature
—Subsequent development—Lower appellate Court after the judgment of High Court
disposed of the appeal and remitted the matter to the trial Court—While remanding the
appeal before the lower appellate Court’ High Court observed that if the appellate Court is
of the opinion that the evidence is insufficient to decide the issue only then the matter be
remitted to the trial Court—High Court rightly allowed the appeal in the circumstances of
the case—No interference warranted—Appeal dismissed. (Paras 8, 9, 35 to 37)
Case law.—1890 (44) Ch. D 262; 1880 (5) AC 214; 1968 AC 997; 1911 (2) QB 1131;
1978 (2) SCC 573; 50 IA 227; 1952 (1) SCR 135; 1980 (4) SCC 162; 2007 (10) SCR 245; 1975
(1) SCC 770; 1975 (4) SCC 458.
Important Point
In a suit as well as the first appeal all disputed facts are open for decision. A point of fact
is not to be decided in second appeal where only a substantial question of law is to be looked
into. The first appellate Court is the last Court of facts. The order of remand should not be passed
as a matter of routine. The first appellate Court has the power to analyse the factual position, can
decide the issue and the additional issues.
JUDGMENT
DR. ARIJIT PASAYAT, J.—Leave granted.
2. Challenge in this appeal is to the order passed by learned Single Judge of the Allahabad
High Court setting aside the order passed by the First Appellate Court, and directing it to take
decision on merit.
3. Essential facts are as follows:
Respondent No.1 as plaintiff No.1 along with one Gabbu filed Suit No.23 of 1960 for
declaration that the land in dispute belongs to it and the defendants have no concern with the
property. Assertion was that the property in question had vested in it in view of the notification
issued by the State Government after abolition of Zamindari. The suit was decreed on 17.1.1972.
The trial Court granted relief of permanent injunction in respect of suit property as described in
the Schedule and also declared that plaintiff No.1 is the owner of the said plot. The decree was
challenged by way of appeal by the appellants. During the pendency of the appeal, an application
to amend the written statement was allowed by the Appellate Court. Thereafter certain additional
issues were framed. The Appellate Court was of the view since the written statement had been
amended during the pendency of the appeal, the matter should be remanded to the trial Court for
fresh decision. Challenging the order passed, an appeal was filed by respondent No.1 before the
High Court. Stand of the plaintiff No.1 before the High Court was that the Appellate Court
committed an illegality in remanding the matter for fresh consideration. It was submitted that the
Appellate Court could have exercised its discretion under Order XLI, Rule 25 of the Code of
Civil Procedure, 1908 (in short ‘the Code’) and it could have recorded evidence itself. It was the
opinion that the same was necessary for disposal of the appeal.
4. Stand of the defendants on the contrary was that two courses were available to the
Appellate Court. First was to pass the remand order after setting aside the findings. The said
course has been adopted. The other course was to call for findings on the issue by remitting it to
the trial Court. The High Court was of the view that the order of remand should be passed rarely
and in the instant case that was not the case. That being so, the High Court set aside the order of
the First Appellate Court and the matter was remanded to it for decision of the appeal on merit.
5. Learned counsel for the appellant submitted that the true scope and ambit of Order XLI,
Rule 25 has been improperly pressed into service. In the background of the factual position,
the order of the High Court cannot be maintained. The High Court, however, noted that if the
Appellate Court is of the opinion that the evidence is insufficient, the matter may be remanded to
the trial Court for recording evidence in terms of Order XLI, Rule 25 of the Code.
6. In response, learned counsel for the respondent submitted that it will not be in the
interest of the parties to go on litigating and for that purpose the only course which was available
has been adopted. Strong reliance was placed on a decision of this Court in Pasupuleti
Venkateswarlu v. The Motor and General Traders, 1975 (1) SCC 770.
7. Order XLI Rule 25 of the Code reads as follows:
“Order XLI: Appeals from original decrees
25. Where Appellate Court may frame issues and refer them for trial to Court whose
decree appealed from.—Where the Court from whose decree the appeal is
preferred has omitted to frame or try any issue, or to determine any question
of fact, which appears to the Appellate Court essential to the right decision of
the suit upon the merits, the Appellate Court may, if necessary, frame issues, and
refer the same for trial to the Court from whose decree the appeal is preferred,
and in such case shall direct such Court to take the additional evidence required;
and such Court shall proceed to try such issues, and shall return the evidence
to the Appellate Court together with its findings thereon and the reasons therefor
[within such time as may be fixed by the Appellate Court or extended by it from
time to time].”
8. There is no scope for any doubt that in a suit as well as the first appeal all disputed facts
are open for decision. A point of fact is not to be decided in second appeal where only a
substantial question of law is to be looked into. There is some amount of controversy as to
whether the provisions are mandatory, notwithstanding the fact that the word ‘may’ has been
used. The First Appellate Court is the last Court of facts.
9. Under Order XLI, Rule 25, if it appears to the Appellate Court that any fact essential for
the decision in the suit was to be determined, it could frame an issue on the point and refer the
same for trial, to the Court from whose decree the appeal is preferred and in such case, shall
direct such Court to take additional evidence required. The order of remand should not be
passed as a matter of routine. The First Appellate Court which has the power to analyse the
factual position can decide the issue and the additional issues. In the instant case the First
Appellate Court, inter alia, observed as follows:
“As such, it would not be proper for the first Appellate Court in such matter to itself
record the evidence and to give its findings in regard to newly created issues. The
Hon’ble High Court has also held that in the present matter under the provision of Order
XLI, Rule 25 of Civil Procedure Code, becomes mandatory (shall) though in this
provision, the word ‘may’ has been used. No doubt in the present matter also the
Appellate Court has framed 6 additional issues which are legal in nature and also factual,
with the result if the Appellate Court gives its findings relating to said legal and factual
issues after itself recording (receiving) evidence then the aggrieved party would be
prevented from his right of filing first appeal. Accordingly, the aforesaid ratio laid down
by the Hon’ble High Court is fully applicable in the present matter.”
10. A bare reading of the provision makes it clear that the same comes into operation when
the Court, from whose decree the appeal is preferred, has omitted to frame or try and issue, or to
determine any question of fact which appears to the appellate Court essential for the right
decision of the suit upon the merits. In order to bring in application of Order XLI, Rule 25 the
appellate Court must come to a conclusion that the lower Court has omitted to frame issues
and/or has failed to determine any question of fact which in the opinion of the appellate Court are
essential for the right decision of the suit on merits. Once the appellate Court comes to such a
conclusion it may, if necessary, frame the issues and refer the same to the trial Court. In other
words there is no compulsion on the part of the appellate Court to do so. This is clear from the
use of the expression ‘may’. But the further question that arises is whether in such a case the
appellate Court is bound to direct the trial Court to take additional evidence required. This is a
mandatory requirement as is evident from the provision itself because it provides that the lower
Court shall proceed to try such case and shall return the evidence to the appellate Court together
with findings therein and the reasons therefor. As noted above, the provision becomes operative
when the appellate Court comes to the conclusion about the omission on the part of the lower
Court to frame or try any issue. Once the appellate Court directs the lower Court to do so, it is
incumbent upon the trial Court to take additional evidence required. As has been rightly
contended by learned counsel for the appellant, there may be cases where additional evidence
may not be required. But where the additional evidence is required, then the lower Court has to
return the evidence so recorded to the appellate Court together with the findings thereon and
the reasons therefor. Requirement for recording the finding of facts and the reasons disclosed
from the facts is because the appellate Court at the first instance has come to the conclusion that
the lower Court has omitted to frame or try any issue or to determine any question of fact material
for the right decision of the suit on merits. It has to be noted that where a finding is called for on
the basis of certain issues framed by the appellate Court, the appeal is not disposed of either in
whole or in part. Therefore the parties cannot be barred from arguing the whole appeal after the
findings are received from the Court of the first instance. This position was highlighted in Gogula
Gurumurthy and Others v. Kurimeti Ayyappa, 1975 (4) SCC 458, where it was inter-alia
observed in para 5 as follows:
“We consider that when a finding is called for on the basis of certain issues framed by
the appellate Court the appeal is not disposed of either in whole or in part. Therefore the
parties cannot be barred from arguing the whole appeal after the findings are
received from the Court of first instance. We find the same view taken in Gopi Nath
Shukul v. Sat Narain Shukul, AIR 1923 All 384.”
11. The delicate question that remains to be examined is what is the position in law when
both the expression “shall” and “may” are used in the same provision.
 12. Mere use of word ‘may’ or ‘shall’ is not conclusive. The question whether a particular
provision of a statute is directory or mandatory cannot be resolved by laying down any general
rule of universal application. Such controversy has to be decided by ascertaining the intention of
the Legislature and not by looking at the language in which the provision is clothed. And
for finding out the legislative intent, the Court must examine the scheme of the Act, purpose and
object underlying the provision, consequences likely to ensue or inconvenience likely to result if
the provision is read one way or the other and many more considerations relevant to the issue.
13. Several statutes confer power on authorities and officers to be exercised by them at
their discretion. The power is in permissive language, such as, ‘it may be lawful’, ‘it may be
permissible’, ‘it may be open to do’, etc. In certain circumstances, however, such power is
‘coupled with duty’ and must be exercised.
14. More than a century ago, in Baker, Re, (1890) 44 Ch D 262, Cotton, L.J. stated;
“I think that great misconception is caused by saying that in some cases ‘may’ means
‘must’. It never can mean ‘must’, so long as the English language retains its meaning; but
it gives a power, and then it may be question in what cases, where a Judge has a power
given by him by the word ‘may’, it becomes his duty to exercise it.
(emphasis supplied)
15. In the leading case of Julius v. Lord Bishop of Oxford, (1880) 5 AC 214:49 LJ QB 580:
(1874-80) All ER Rep 43 (HL), the Bishop was empowered to issue a commission of inquiry in
case of alleged misconduct by a clergyman, either on an application by someone or suo motu. The
question was whether the Bishop had right to refuse commission when an application was made.
The House of Lords held that the Bishop had discretion to act pursuant to the complaint and no
mandatory duty was imposed on him.
16. Earl Cairns, L.C., however, made the following remarkable and oft-quoted
observations:
“The words ‘it shall be lawful’ are not equivocal. They are plain and unambiguous. They
are words merely making that legal and possible which there would otherwise be no right
or authority to do. They confer a faculty or power and they do not of themselves do more
than confer a faculty or power. But there may be something in the nature of the
thing empowered to be done, something in the object for which it is to be done,
something in the title of the person or persons for whose benefit the power is to be
exercised, which may couple the power with a duty, and make it the duty of the person in
whom the power is reposed, to exercise that power when called upon to do so.”
17. Explaining the doctrine of power coupled with duty, de Smith, (‘Judicial Review of
Administrative Action’, 1995; pp.300-01) states:
“Sometimes the question before a Court is whether words which apparently confer a
discretion are instead to be interpreted as imposing duty. Such words as ‘may’ and ‘it
shall be lawful’ are prima facie to be construed as permissive, not imperative.
Exceptionally, however, they may be construed as imposing a duty to act, and even a
duty to act in one particular manner.”
(emphasis supplied)
18. Wade also says (Wade & Forsyth; ‘Administrative Law: 9th Edn.): p.233):
“The hallmark of discretionary power is permissive language using words such as ‘may’
or ‘it shall be lawful’, as opposed to obligatory language such as ‘shall’. But this simple
distinction is not always a sure guide, for there have been many decisions in which
permissive language has been construed as obligatory. This is not so much because one
form of words is interpreted to mean its opposite, as because the power conferred is, in
 the circumstances, prescribed by the Act, coupled with a duty to exercise it in a proper
case.” (emphasis supplied)
19. In the leading case of Padfield v. Minister of Agriculture, Fisheries & Food, 1968
AC 997 : (1968) 1 All ER 694 : (1968) 2 WLR 924 (HL), the relevant Act provided for the
reference of a complaint to a committee of investigation ‘if the Minister so directs’. The
Minister refused to act on a complaint. It was held that the Minister was required to act on a
complaint in absence of good and relevant reasons to the contrary.
20. Likewise, it was held that the licensing authorities were bound to renew licences of cab
drivers if the prescribed procedural requirements had been complied with [R. v. Metropolitan
Police Commissioner, (1911) 2 QB 1131]. Similarly, local authorities were held bound to
approve building plans if they were in conformity with bye-laws [ R. v. Nescastle-upon-Tyne
Corporation, (1889) 60 LT 963]. Again, the Court was required to pass a decree for possession in
favour of a landlord, if the relevant grounds existed [Ganpat Ladha v. Shashikant, 1978 (2) SCC
573].
21. In Alcock v. Chief Revenue Authority, 50 IA 227 : AIR 1923 PC 138, the relevant
statute provided that if in the course of any assessment a question arises as to the interpretation of
the Act, the Chief Revenue Authority ‘may’ draw up a statement of the case and refer it to the
High Court. Holding the provision to be mandatory and following Julius, Lord Phillimore
observed:
“When a capacity or power is given to a public authority, there may be circumstance
which couple with the power of duty to exercise it.”
22. In Commissioner of Police v. Gordhandas Bhanji, 1952 (1) SCR 135, Rule 250 of the
Rules for Licensing and Controlling Theatres and Other Places of Public Amusement in Bombay
City, 1884 read as under:
“The Commissioner shall have power in his absolute discretion at any time to cancel or
suspend any licence granted under these Rules.”
23. It was contended that there was no specific legal duty compelling the Commissioner to
exercise the discretion. Rule 250 merely vested discretion in him but it did not require him to
exercise the power. Relying upon the observations of Earl Cairns, L.C., the Court observed:
“The discretion vested in the Commissioner of Police under Rule 250 has been conferred
upon him for public reasons involving the convenience, safety, morality and the welfare
of the public at large. An enabling power of this kind conferred for public reasons and for
the public benefit is, in our opinion, coupled with a duty to exercise it when the
circumstances so demand. It is a duty which cannot be shirked or shelved nor can it be
evaded.... “
(emphasis supplied)
24. In Ratlam Municipality v. Vardichan, 1980 (4) SCC 162, some residents of Ratlam
Municipality moved the Sub-Divisional Magistrate under Section 133 of the Code of Criminal
Procedure, 1973 for abatement of nuisance by directing the municipality to construct drain pipes
with flow of water to wash the filth and stop the stench. The Magistrate found the facts proved
and issued necessary directions. The Sessions Court, in appeal, reversed the order. The High
Court, in revision, restored the judgment of the Magistrate and the matter was carried to the
Supreme Court.
25. This Court summarized the principle thus:
“The key question we have to answer is whether by affirmative action a Court can
compel a statutory body to carry out its duty to the community by constructing sanitation
facilities at great cost and on a time-bound basis. At issue is the coming of age of that
 branch of public law bearing on community actions and the Court’s power to force public
bodies under public duties to implement specific plans in response to public
grievances.”
26. Holding the provision obligatory, the Court observed:
“Judicial discretion when facts for its exercise are present, has a mandatory import.
Therefore, when the Sub-Divisional Magistrate, Ratlam, has, before him, information and
evidence, which disclose the existence of a public nuisance and, on the materials placed,
he considers that such unlawful obstruction or nuisance should be removed from any
public place which may be lawfully used by the public, he shall act.... This is a public
duty implicit in the public power to be exercised on behalf of the public and pursuant
to a public proceeding.” (emphasis supplied)
27. We do not wish to refer to other cases on the point. We are, however, in agreement
with the observations of Earl Cairns, L.J. in Julius referred to above wherein His Lordship stated:
“Where a power is deposited with a public officer for the purpose of being used for the
benefit of persons who are specifically pointed out, and with regard to whom a definition
is supplied by the Legislature of the conditions upon which they are entitled to call for
its exercise, that power ought to be exercised, and the Court will require it to be
exercised.” [See M/s. Dhampur Sugar Mills Ltd. v. State of U.P., 2007(10) SCR 245.]
28. The use of the word ‘shall’ in a statute, though generally taken in a mandatory sense,
does not necessarily mean that in every case it shall have that effect, that is to say, that unless the
words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding
would be invalid. On the other hand, it is not always correct to say that when the word ‘may’ has
been used, the statute is only permissible or directory in the sense that non-compliance with those
provisions will not render the proceeding invalid.
29. Words are the skin of the language. The language is the medium of expressing the
intention and the object that particular provision or the Act seeks to achieve. Therefore, it is
necessary to ascertain the intention. The word ‘shall’ is not always decisive. Regard must be had
to the context, subject matter and object of the statutory provision in question in determining
whether the same is mandatory or directory. No universal principle of law could be laid in that
behalf as to whether a particular provision or enactment shall be considered mandatory or
directory. It is the duty of the Court to try to get at the real intention of the legislature by carefully
analysing the whole scope of the statute or section or a phrase under consideration. The word
‘shall’, though prima facie gives impression of being of mandatory character, it requires to be
considered in the light of the intention of the Legislature by carefully attending to the scope of the
statute, its nature and design and the consequences that would flow from the construction
thereof one way or the other. In that behalf, the Court is required to keep in view the impact on
the profession, necessity of its compliance; whether the statute, if it is avoided, provides for any
contingency for non-compliance; if the word ‘shall’ is construed as having mandatory character,
the mischief that would ensue by such construction; whether the public convenience would be
subserved or public inconvenience or the general inconvenience that may ensue if it is held
mandatory and all other relevant circumstances are required to be taken into consideration in
construing whether the provision would be mandatory or directory.
30. The question, whether a particular provision of a statute, which, on the face of it,
appears mandatory inasmuch as it used the word ‘shall’, or is merely directory, cannot be
resolved by laying down any general rule, but depends upon the facts of each case particularly on
a consideration of the purpose and object of the enactment in making the provision. To ascertain
the intention, the Court has to examine carefully the object of the statute, consequence that may
follow from insisting on a strict observance of the particular provision and, above all, the general
scheme of the other provisions of which it forms a part. The purpose for which the provision has
been made, the object to be attained, the intention of the legislature in making the provision, the
serious inconvenience or injustice which may result in treating the provision one way or the
other, the relation of the provision to other consideration which may arise on the facts of any
particular case, have all to be taken into account in arriving at the conclusion whether the
provision is mandatory or directory. Two main considerations for regarding a rule as directory
are: (i) absence of any provision for the contingency of any particular rule not being complied
with or followed, and (ii) serious general inconvenience and prejudice to the general public would
result if the act in question is declared invalid for non-compliance with the particular rule.
31. It is well-settled that the use of word ‘may’ in a statutory provision would not by
itself show that the provision is directory in nature. In some cases, the Legislature may use the
word ‘may’ as a matter of pure conventional courtesy and yet intend a mandatory force. In
order, therefore, to interpret the legal import of the word ‘may’, the Court has to consider various
factors, namely, the object and the scheme of the Act, the context and the background against
which the words have been used, the purpose and the advantages sought to be achieved by the use
of this word, and the like. It is equally well-settled that where the word ‘may’ involves a
discretion coupled with an obligation or where it confers a positive benefit to a general class of
subjects in a utility Act, or where the Court advances a remedy and suppresses the mischief, or
where giving the words directory significance would defeat the very object of the Act, the word
‘may’ should be interpreted to convey a mandatory force. As a general rule, the word ‘may’ is
permissive and operative to confer discretion and especially so, where it is used in juxtaposition
to the word ‘shall’, which ordinarily is imperative as it imposes a duty. Cases however, are not
wanting where the words ‘may’ ‘shall’, and ‘must’ are used interchangeably. In order to find out
whether these words are being used in a directory or in a mandatory sense, the intent of the
Legislature should be looked into along with the pertinent circumstances. The distinction of
mandatory compliance or directory effect of the language depends upon the language couched in
the statute under consideration and its object, purpose and effect. The distinction reflected in the
use of the word ‘shall’ or ‘may’ depends on conferment of power. Depending upon the context,
‘may’ does not always mean may. ‘May’ is a must for enabling compliance of provision but
there are cases in which, for various reasons, as soon as a person who is within the statute is
entrusted with the power, it becomes his duty to exercise that power. Where the language of
statute creates a duty, the special remedy is prescribed for non-performance of the duty.
32. If it appears to be the settled intention of the Legislature to convey the sense of
compulsion, as where an obligation is created, the use of the word ‘may’ will not prevent the
Court from giving it the effect of compulsion or obligation. Where the statute was passed purely
in public interest and that rights of private citizens have been considerably modified and
curtailed in the interests of the general development of an area or in the interests or removal of
slums and unsanitary areas. Though the power is conferred upon the statutory body by the use of
the word ‘may’ that power must be construed as a statutory duty. Conversely, the use of the term
‘shall’ may indicate the use in optional or permissive sense. Although in general sense ‘may’ is
enabling or discretional and `shall’ is obligatory, the connotation is not inelastic and inviolate.
Where to interpret the word `may’ as directory would render the very object of the Act as
nugatory, the word ‘may’ must mean ‘shall’.
33. The ultimate rule in construing auxiliary verbs like ‘may’ and ‘shall’ is to discover the
legislative intent; and the use of words ‘may’ and ‘shall’ is not decisive of its discretion or
mandates. The use of the words ‘may’ and ‘shall’ may help the Courts in ascertaining the
legislative intent without giving to either a controlling or a determinating effect. The Courts
have further to consider the subject matter, the purpose of the provisions, the object intended to
be secured by the statute which is of prime importance, as also the actual words employed.
34. Obviously where the Legislature uses two words may and shall in two different parts
of the same provision prima facie it would appear that the Legislature manifested its intention to
make one part directory and another mandatory. But that by itself is not decisive. The power of
Court to find out whether the provision is directory or mandatory remains unimpaired.
35. One additional factor, which may not have an effect on the appeal is to be noted. The
First Appellate Court after judgment of the High Court dated 4.2.2005 disposed of the appeal and
remitted the matter to the trial Court. The stay order of this Court was passed on 7.2.2005.
36. It is to be noted that the High Court in the impugned judgment has noted that if the
Appellate Court is of the opinion that if the evidence is insufficient to decide the issue, only then
the matter may be remitted to the trial Court.
37. Above being the position, the appeal by the respondents before the Allahabad High
Court has been rightly allowed. In any event, the order does not suffer from any infirmity to
warrant interference. The appeal is dismissed.
Appeal dismissed.

[2008 (1) T.N.C.J. 661 (SC)]

SUPREME COURT
BEFORE:
S.B. SINHA AND HARJIT SINGH BEDI, JJ.
RAJENDRAN AND OTHERS ...Petitioners
Versus
SHANKAR SUNDARAM AND OTHERS ...Respondents
[Civil Appeal No. 802 of 2008 (Arising out of SLP (C) No. 22880 of 2004), decided on 30 th
January, 2008]
Partnership Act, 1932—Sections 2 (a), 18, 19, 22 and 28—Civil Procedure Code, 1908
—Order XXXVIII, Rule 5—Jurisdiction under—While exercising, Court is required to
form a prima facie opinion at that stage—Need not to go into the correctness or otherwise
of all the contentions raised by the parties—Cheque issued in the name of the firm—A
pronote had been executed by a partner of the firm—Appellants are partners of the firm—
Under the Partnership Act prima facie the plaintiff could enforce his claim not only as
against the firm but also as against its partner—Suit for realization of a sum of Rs.
70,30,000/- with interest @ 20% p.a. inter alia alleging that all the defendants were jointly
and severally liable therefor—Plaintiff is entitled to secure his interest keeping in view the
amount involved in the suit—Division Bench merely directed the appellants to furnish
security within the time specified—Appellants are not seriously prejudiced if they furnish
the security—No interference warranted with the order of High Court—Appeal dismissed.
(Paras 11 to 16)
JUDGMENT
S.B. SINHA, J.—Leave granted.
2. Appellants herein were defendant Nos. 4 to 7 in the suit. Plaintiff-respondent No.1
filed the suit against them and four others. They are admittedly partners of defendant No.1 firm,
M/s. AR. AS & P.V.PV, registered under the Partnership Act, 1932. Defendant No.3 P. Shankar
(respondent No. 4 herein) was also a partner in the said firm.
3. Allegedly, defendant No. 2, P.V. Purushothaman (respondent No.3 herein), who has
been described as the Managing Partner of the said firm, fraudulently obtained an advance from
the plaintiff wherefor a personal guarantee was furnished by the defendant No.2. Indisputably a
cheque for a sum of Rs. 50 lakhs was issued in the name of the defendant No.1.
 4. Plaintiff-respondent filed the aforementioned suit for realisation of a sum of
Rs.70,30,000/- with interest @ 20% per annum inter alia alleging that all the defendants were
jointly and severally liable therefor. An application under Order XXXVIII, Rule 5 of the Code of
Civil Procedure was filed by the plaintiff.
5. Appellants in their written statement inter alia raised a contention that since the amount
of Rs. 50 lakhs purported to have been taken in advance by defendant No. 2 in connivance with
defendant Nos. 3 and 8 had not been used for the benefit of the partnership firm, no order of
attachment could be issued as against the appellants herein. The said contention of the appellants
was accepted by a learned Single Judge of the High Court by his order dated 10th December,
2002 opining :
“The copy of the partnership deed date 01-4-1996 has been filed by the contesting
defendants in the typed set. A perusal of the same clearly disclosed that the 2nd
Defendant was not a partner in the 1st defendant firm. Moreover, the plaintiff had also
not filed any record to show that the 2nd defendant was already in a partner (sic) in the
1st defendant firm and the borrowal was also made only for the firm. Unless and until, it
is established by the plaintiff, I am of the view that the plaintiff is not entitled to seek any
interim order calling upon the defendants to execute a security.”
6. An intra Court appeal was preferred thereagainst wherein a Division Bench of the High
Court by reason of the impugned judgment opined :
“The learned Judge has not appreciated that the 3rd defendant who is the partner of the
firm as per the partnership deed dated 1-4-1996 executed the promissory notes and
clause 10 of the partnership firm gives power to a partner to borrow monies (sic) from
the 3rd parties for the purpose of business. The 2nd defendant gave a letter which is only
for personal guarantee. So, the reasonings given by the learned Judge that since the 2nd
defendant is not a partner, the borrowal of money is not for the benefit of the partnership
cannot be countenanced. When the cheque was given in the name of the firm by the
plaintiff, prima facie, it has to be taken that it is borrowed on behalf of the partnership
firm. When the payment of the money by the plaintiff in the firm is not in dispute and in
the absence of any specific allegation that the amount was paid personally to the
defendants 2, 3 and 8, though the cheque was issued in the name of the firm and the
plaintiff also colluded with them, the argument of the learned counsel regarding the
alleged collusion cannot be accepted. Whether the amount is used for the firm or
personally by the defendants 2, 3 and 8 can be gone into only after adducing
evidence. Prima facie, we find that since the amount was paid in the name of the firm and
promissory notes were executed by the partners of the firm and no other partnership deed
is produced before the Court other than that the partnership (sic deed) dated 1-4-1996, the
learned Judge is not correct in rejecting the Application as if the plaintiff has no
prima facie case. The learned Judge has not given any other finding as to the necessity
for attachment, but rejected the application only on the ground that the 2nd defendant
is not the partner of the firm.”
7. On the said findings the appeal preferred by the plaintiff-respondent was allowed.
Appellants are thus before us.
8. Mr. Ramamurthy, learned senior counsel appearing on behalf of the appellants, would
take us through the plaint as well as the written statement to contend that from a perusal thereof it
would appear that in obtaining the said purported loan from the plaintiff-respondent,
defendant Nos. 2, 3 and 8 played a prime role. As defendant No. 2 was stated to be the Managing
Partner of the firm, which he was not, and in fact only his son (defendant No.3) was a partner, the
purported loan was granted by the plaintiff without even caring to ascertain as to who are the
partners of the said firm.
9. Our attention was furthermore drawn to various provisions of the Partnership Act and in
particular, Section 2(a); Section 18; Section 19; Section 22 and Section 28 thereof for advancing
the proposition that the firm would be bound only when a transaction is entered into by a partner
of the firm and that too subject to the limitations contained in the aforementioned provisions.
10. Mr. Amit Sharma, learned counsel appearing on behalf of the respondents, on the other
hand supported the impugned judgment.
11. Concededly, the amount of loan was advanced by a cheque. The said cheque was
drawn in the name of the partnership firm. Concededly again, the appellants were the partners
thereof at the relevant time, although an endeavour was made before the learned Single Judge to
show that they ceased to be so. Having regard to the fact that they purported to have retired from
the partnership firm in the year 2001 and the transaction herein between the parties are of the year
2000, prima facie the liability of the appellants could not have been ignored.
12. The application for attachment before judgment was filed by the plaintiff so as to
protect his interest in the event the suit is decreed. The Court exercises, in such a situation,
jurisdiction under Order XXXVIII, Rule 5 of the Code of Civil Procedure. The Division Bench
of the High Court merely directed the appellants herein to furnish security within the time
specified thereunder. It was directed that only on their failure to do so, an order of attachment of
the 2nd item on the schedule to the petition shall be issued.
13. Appellants, in our opinion, are not seriously prejudiced thereby. The Court while
exercising its jurisdiction under Order XXXVIII, Rule 5 of the Code of Civil Procedure is
required to form a prima facie opinion at that stage. It need not go into the correctness or
otherwise of all the contentions raised by the parties. A cheque had been issued in the name of
the firm. The appellants are partners thereof. A pronote had been executed by a partner of the
firm. Thus even under the Partnership Act prima facie the plaintiff could enforce his claim not
only as against the firm but also as against its partners.
14. Sections 2(a) ; 18 ; 19 ; 22 and 28 to which our attention has been drawn, instead of
assisting the appellants, prima facie assist the plaintiff-respondent. Allegations against defendant
Nos. 2, 3 and 8 are required to be gone into at the hearing of the suit. The Court at this stage is
required only to form a prima facie opinion. The plaintiff is entitled to secure his interest keeping
in view the amount involved in the suit. For the said purpose a detailed discussion in regard to the
question as to whether defendant No.2 was a partner or not is not of much relevance.
15. In any view of the matter as the appellants are not seriously prejudiced if they furnish
the security, this, in our opinion, is not a fit case where this Court should exercise its jurisdiction
under Article 136 of the Constitution of India.
16. For the reasons abovementioned this appeal fails and is dismissed. No order as to
costs.
Appeal dismissed.

[2008 (1) T.N.C.J. 665 (SC)]

SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND D.K. JAIN, JJ.
HARI PRASAD BHUYAN ...Petitioner
 Versus
DURGA PRASAD BHUYAN AND OTHERS ...Respondents
[Civil Appeal No. 768 of 2008 (Arising out of SLP (C) No. 8870 of 2006), decided on 29 th
January, 2008]
Practice and procedure—Earlier litigation upto the stage of Apex Court—Not
pointed out by the respondents about the death of respondent No. 13 or respondent No. 24
—Present respondents were the appellants in the appeal before the Apex Court—They also
did not point out about the death—Appellant came to know about the death from the
process server’s report—Respondents did not disclose about death—Respondents cannot
take any advantage from the belated approach by the appellant for condonation of
delay in seeking substitution by setting aside abatement—Condonation of delay should have
been accepted by the High Court—Order impugned set aside—Appeal allowed.
(Paras 4 to 6)
Case law.—2003 (1) SCC 197.
JUDGMENT
DR. ARIJIT PASAYAT, J.—Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single Judge of the Gauhati
High Court, dismissing the applications for condonation of delay, setting aside of abatement
and substitution of the heirs of the respondent Nos. 13 and 24 in the Second Appeal No. 80/1986.
It was held that the appeal had abated and the judgment and order dated 18.5.1995 passed by the
High Court in Second Appeal No.80/1986 was a nullity and, therefore, application under Section
152 of the Code of Civil Procedure, 1908 (in short the “CPC”) was not maintainable.
3. Background facts in a nutshell are as follows:
Predecessors-in-interest of the appellant filed suit TS No. 26/1978 in the Court of Assistant
District Judge No.1, Gauhati. The said suit, inter alia, was for recovery of possession,
confirmation of possession and declaration of title over the suit properties and for cancellation of
mutation of names of certain defendants. According to the appellant, the said suit specifically set
out the cause of action against each defendant and the prayers in the suit were also specifically
directed against the defendants in respect of the alleged holding in the scheduled properties. The
Trial Court by judgment dated 11.1.1984 dismissed the suit. An appeal was preferred which was
numbered as Appeal No.5/1984 and the same was dismissed by learned District Judge, Gauhati
by order dated 30.1.1986. Plaintiffs filed a Second Appeal No.80 of 1986 in the Gauhati High
Court. During pendency of the same, some of the plaintiffs died and their legal heirs were
substituted. The second appeal filed by the plaintiffs was allowed by the Gauhati High Court and
the suit was decreed. Plaintiffs filed an execution petition before the Trial Court which was
numbered as Title Execution Case No. 4 of 1995. The Trial Court drew up the decree dated
7.4.1996 as directed by the High Court, but mistakenly set out only costs without setting out the
reliefs in the suit which had been decreed. An S.L.P. (CC No.2275/96) filed by the
respondents against the judgment and order dated 18.8.1995 passed by the High Court was
dismissed by order dated 8.5.1996 with the following observations:
“The learned counsel for the petitioner submits that the petitioners have been advised to
approach the High Court for recall of the order and he had instructions to withdraw this
special leave petition. We record the statements of the learned counsel and dismiss
the special leave petition as withdrawn”.
In the execution petition filed by the appellants objection under Section 47, CPC was filed
on behalf of the heirs of deceased respondent No.7 and the Trial Court by an order disposed of
the said application, inter alia, observing as follows:
 “In the light of the above, I am of the considered view that the decree cannot be executed
in respect of the E Schedule on the ground of nullity but the decree will be executable in
respect of other properties as mentioned in the plaint except those in Schedule E and
against the other judgment debtors. With this order, the petition stands disposed of. Steps
be taken for execution of the decree.”
On 26.8.1997 the trial Court by two separate orders in the suit in the execution proceedings
observed that decree should have contained all the reliefs claimed and ordered accordingly. On
17.11.1997 the decree was drawn up as per the order dated 26.8.1997. Respondent No.6 i.e.,
Laxmi Ram Bhuyan filed a civil revision (CR No.423/1997) in the Gauhati High Court
questioning orders dated 26.8.1997 and decree dated 17.11.1997. By order dated 29.9.1999 the
High Court dismissed the civil revision. A petition was filed seeking review of the High Court’s
order dated 29.9.1999 in RP No.6 of 2000. A special leave petition was filed against the order
dated 10.4.2001, by which the High Court rejected the review petition. On 20.11.2002 this Court
granted liberty to the appellants to approach the High Court under Section 152, CPC for making
appropriate corrections in the decree. The judgment is reported in Lakshmi Ram Bhuyan v. Hari
Prasad Bhuyan and Ors., 2003 (1) SCC 197. It was inter alia noted as follows:
“11. The obligation is cast not only on the trial Court but also on the appellate Court.
In the event of the suit having been decreed by the trial Court if the appellate
Court interferes with the judgment of the trial Court, the judgment of the
appellate Court should precisely and specifically set out the reliefs granted
and the modifications, if any, made in the original decree explicitly and with
particularity and precision. Order XLI, Rule 31, CPC casts an obligation on the
author of the appellate judgment to state the points for determination, the
decision thereon, the reasons for the decision and when the decree appealed from
is reversed or varied, the relief to which the appellant is entitled. If the suit was
dismissed by the trial Court and in appeal the decree of dismissal is reversed, the
operative part of the judgment should be so precise and clear as it would have
been if the suit was decreed by the trial Court to enable a self-contained
decree being drawn up in conformity therewith. The plaintiff, being dominus
litus, enjoys a free hand in couching the relief clause in the manner he pleases
and cases are not wanting where the plaintiff makes full use of the liberty given
to him. It is for the Court, decreeing the suit, to examine the reliefs and then
construct the operative part of the judgment in such manner as to bring the reliefs
granted in conformity with the findings arrived at on different issues and also
the admitted facts. The trial Court merely observing in the operative part of the
judgment that the suit is decreed or an appellate Court disposing of an appeal
against dismissal of suit observing the appeal is allowed, and then staying short at
that, without specifying the reliefs to which the successful party has been found
entitled tantamounts to a failure on the part of the author of the judgment to
discharge obligation cast on the Judge by the provisions of the Code of Civil
Procedure.
12. In the case at hand, a perusal of the reliefs prayed for in the plaint shows that the
reliefs are not very happily worded. There are some reliefs which may not be
necessary or may be uncalled for, though prayed for. The reliefs may have been
considered capable of being recast or redefined so as to be precise and
specific. May be, that the Court was inclined to grant some other relief so as to
effectually adjudicate upon the controversy and bring it to an end. Nothing is
spelled out from the appellate judgment. The trial Court, on whom the
obligation was cast by the second appellate judgment to draw up a decree, was
 also, as its order shows, not very clear in its mind and thought it safe to proceed
on an assumption that all the reliefs sought for in the plaint were allowed to the
plaintiffs. The learned Single Judge allowing the second appeal, should have
clearly and precisely stated the extent and manner of reliefs to which the
plaintiffs were found to be entitled in his view of the findings arrived at during
the course of the appellate judgment. The parties, the draftsman of the decree and
the executing Court cannot be left guessing what was transpiring in the mind of
the Judge decreeing the suit or allowing the appeal without further placing on
record the reliefs to which the plaintiffs are held entitled in the opinion of the
Judge.
13. There is yet another infirmity. Ordinarily the decree should have been drawn up
by the High Court itself. It has not been brought to the notice of this Court by the
learned counsel for either parties if there are any rules framed by the High Court
which countenance such a practice as directing the trial Court to draw up a decree
in conformity with the judgment of the High Court.
14. How to solve this riddle? In our opinion, the successful party has no other option
but to have recourse to Section 152, CPC which provides for clerical or
arithmetical mistakes in judgments, decrees or orders or errors arising therein
from any accidental slip or omission being corrected at any time by the Court
either on its own motion or on the application of any of the parties. A reading of
the judgment of the High Court shows that in its opinion the plaintiffs
were found entitled to succeed in the suit. There is an accidental slip or omission
in manifesting the intention of the Court by couching the reliefs to which the
plaintiffs were entitled in the event of their succeeding in the suit. Section 152
enables the Court to vary its judgment so as to give effect to its meaning
and intention. Power of the Court to amend its orders so as to carry out the
intention and express the meaning of the Court at the time when the order was
made was upheld by Bowen, L.J. in Swire, Re, Mellor v. Swire subject to the
only limitation that the amendment can be made without injustice or on terms
which preclude injustice. Lindley, L.J. observed that if the order of the Court,
though drawn up, did not express the order as intended to be made then ‘there is
no such magic in passing and entering an order as to deprive the Court of
jurisdiction to make its own records true, and if an order as passed and entered
does not express the real order of the Court, it would, as it appears to me, be
shocking to say that the party aggrieved cannot come here to have the record set
right, but must go to the House of Lords by way of appeal’.
15. For the foregoing reasons the appeal is allowed. The order of the trial Court
drawing up the decree is set aside. The parties are allowed liberty of moving the
High Court under Section 152, CPC seeking appropriate rectification in the
judgment of the High Court so as to clearly specify the extent and manner of
reliefs to which in the opinion of the High Court the successful party was found
entitled consistently with the intention expressed in the judgment. The delay
which would be occasioned has to be regretted but is unavoidable. Once the
operative part of the judgment is rectified there would be no difficulty in drawing
up a decree by the High Court itself in conformity with the operative part of the
judgment. If the rules of the High Court so require, the ministerial act of drawing
up of the decree may be left to be performed by the trial Court.”
4. Accordingly the application was filed under Section 152, CPC before the High Court.
On 26.6.2003, according to the appellant, he came to know about the death of respondent Nos.13
and 24 in February 1999 and 1993 respectively. This according to the appellant came to the
knowledge of the appellant from the report of the process server dated 26.6.2003. On 2.8.2003
the appellant filed application for setting aside the abatement, substitution and for
condonation of delay. By the impugned order, the learned Single Judge while dealing with
application under Section 152, CPC declared the decree to be a nullity on account of death of
respondent Nos. 13 and 24 and the belated approach for bringing their legal heirs on record.
5. Learned counsel for the appellant submitted that the High Court has missed several
relevant factors. Firstly, in the earlier round of litigation which resulted in the decision
Lakshmi Ram Bhuyan’s case (supra) it was not pointed out by the respondents about the death of
respondent No.13 or respondent No. 24. The present respondents were the appellants in the
appeal before this Court. They also did not point out about the death. There is no decree which
was to be drawn up in line with this Court’s judgment.
6. There is no dispute regarding the assertion of the appellant that he came to know about
the death of respondents 13 and 24 from the process servers’ report. Before this Court earlier also
respondents did not disclose about their death. Since that has not been done, respondents cannot
take any advantage from the belated approach by the appellant. This according to us is a clear
case where the prayer for condonation of delay in seeking substitution by setting aside abatement
and condonation of delay should have been accepted by the High Court. The High Court’s order
is set aside. The appeal is allowed. There will be no order as to costs.
Appeal allowed.

[2008 (1) T.N.C.J. 670 (SC)]

SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.
THE APSRTC, REP. BY ITS GENERAL
MANAGER AND ANOTHER ...Petitioners
Versus
M. RAMADEVI AND OTHERS ...Respondents
[Civil Appeal No. 682 of 2008 (Arising out of SLP (C) No. 11647 of 2004), decided on 25 th
January, 2008]
Motor Vehicles Act, 1988—Section 166—Just compensation—Entitlement was fixed
at Rs. 3,35,952/- to which was added the sum of Rs. 20,000/- additionally awarded by the
Tribunal—Determined by High Court on appeal by corporation—No appeal for
enhancement of compensation of Rs. 2,46,000/- awarded by the Tribunal—Sustainability of
—Annual contribution fixed at Rs. 24,000/-—Multiplier of 10 adopted—Amount payable
comes to Rs. 2,40,000/-—Added with amount of Rs. 20,000/- for non-pecuniary damages
and consortium—Entitlement comes to Rs. 2,60,000/-—Interest rate of 9% fixed—Deposit
of Rs. 2,00,000/- by corporation—Withdrawn by the claimants—Balance amount to be
deposited within six weeks—Appeal allowed. (Paras 10 to 13)
Case law.—2003 (2) SCC 274.
JUDGMENT
DR. ARIJIT PASAYAT, J.—Leave granted.
2. Challenge in this appeal is to the judgment of the learned Single Judge of the Andhra
Pradesh High Court. The appellant-Corporation had filed an appeal before the High Court
questioning correctness of the award made by the Motor Accidents Claims Tribunal-cum-1st
Addl. District Judge, R.R. District at Saroornagar, Hyderabad (hereinafter referred to as the
“Tribunal”).
3. Background facts are as follows:
A claim petition under Section 166 of the Motor Vehicles Act, 1988 was filed by the
respondents claiming compensation of Rs.5,00,000/- on account of the death of M. Nageshwar
Rao (hereinafter referred to as the “deceased”) in an accident on 18.5.1998. The deceased was
working as a driver of the appellant-Corporation. In the claim petition it was stated that because
of the rash and negligent driving of the bus No.A.P.10 Z 998 belonging to the Corporation which
was being driven in a rash and negligent manner, the deceased lost his life. It was claimed that
the deceased was 38 years of age and was an employee of the Corporation and was earning salary
of Rs.4,467.50 p.m. The appellant-Corporation filed its objection before the Tribunal taking the
stand that it was not liable to pay any compensation. The quantum of salary claimed and the age
was also disputed.
4. The Tribunal observed that the age of the deceased was 40 years and he was getting a
salary of Rs.4,000/- p.m. and after deduction his take home pay was Rs.2,367/- and the total
emoluments was Rs.3,983/-. Applying the multiplier of 12 the entitlement was fixed at
Rs.2,16,000/-, in addition Rs.15,000/- for non-pecuniary damages and Rs.5,000/- as consortium
was awarded. Thus the total compensation awarded was fixed at Rs.2,46,000/-. The same was
directed to be paid with interest @ 12% p.a.
5. The appellant-Corporation filed appeal before the High Court. It is to be noted that the
claimants did not prefer any appeal. The High Court held that the award as made was inadequate
and just compensation was not awarded.
6. The High Court was of the view that the pay of the deceased was Rs.3,536/- and not
Rs.2,367/- as noted by the Tribunal. Accordingly, it fixed the basic pay of Rs.3,500/- after
deducting 1/3rd towards the personal expenses. The monthly contribution was fixed at
Rs.2,333/- and the annual contribution at Rs.27,996/-. The multiplier was taken at 12.
Accordingly, entitlement was fixed at Rs.3,35,952/- to which was added the sum of Rs.20,000/-
additionally awarded by the Tribunal.
7. In support of the appeal, learned counsel for the appellants submitted that when there
was no appeal by the claimants in the appeal filed by the appellant-Corporation, the High Court
should not have enhanced the amount. It was also submitted that the multiplier as adopted was
high.
8. Learned counsel for the respondents on the other hand submitted that there is no
embargo on the Tribunal or the High Court awarding compensation exceeding the amount
claimed. It was also submitted that the interest was reduced to 9% from 12% as fixed by the
Tribunal. It was, therefore, submitted that there was no infirmity in the High Court’s order.
9. In Nagappa v. Gurdial Singh and Ors., 2003 (2) SCC 274, para 21 is as follows:
“21. For the reasons discussed above, in our view, under the MV Act, there is no
restriction that the Tribunal/Court cannot award compensation amount exceeding
the claimed amount. The function of the Tribunal/Court is to award ‘just’
compensation which is reasonable on the basis of evidence produced on record.
Further, in such cases there is no question of claim becoming time-barred or it
cannot be contended that by enhancing the claim there would be change of cause
of action. It is also to be stated that as provided under sub-section (4) to Section
166, even the report submitted to the Claims Tribunal under sub- section (6)
of Section 158 can be treated as an application for compensation under the MV
 Act. If required, in appropriate cases, the Court may permit amendment to
the claim petition.”
10. The other question that remains to be adjudicated is whether the income has been
rightly adopted by the Tribunal and the High Court was correct and whether the correct multiplier
was adopted.
11. Considering the figure in the Ex.A/7 the monthly income taken at Rs.3,000/- after
deducting 1/3rd therefrom the annual contribution is fixed at Rs.24,000/-.
12. Adopting the multiplier of 10, the amount payable to the claimants comes to
Rs.2,40,000/- to that shall be added the amount of Rs.20,000/- fixed by the Tribunal for non-
pecuniary damages and consortium as there was no challenge by the Corporation to the award of
such amounts. Therefore, the entitlement of the claimant comes to Rs.2,60,000/-. The interest
rate of 9% fixed by the High Court does not warrant any interference. A sum of Rs.2,00,000/- has
been deposited by the Corporation pursuant to the direction given by this Court on 19.7.2004.
Admittedly, the same has been withdrawn by the claimants. The balance amount shall be
deposited by the appellant-Corporation within six weeks from today. Tribunal shall fix the terms
for withdrawal/deposit of the amount in FDs as deemed appropriate.
13. The appeal is allowed to the aforesaid extent. No costs.
Appeal allowed.

[2008 (1) T.N.C.J. 673 (SC)]

SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.
B.P. AGARWAL AND ANOTHER ...Petitioners
Versus
DHANALAKSHMI BANK LTD. AND OTHERS ...Respondents
[Civil Appeal No. 922 of 2002, decided on 25 January, 2008]
th

Civil Procedure Code, 1908—Order XLI, Rule 1(3)—Appeal—Deposit of a sum of

Rs. 5,00,000/- in trial Court within a particular time—Direction issued—No application for
stay filed—Legality of—In absence of any application for stay the High Court could not
have passed the order impugned—Direction for deposit stands vacated—Appeal allowed.
(Paras 1, 6 and 7)
Case law.—1998 (8) SCC 676; 2004 (7) SCC 337.
Important Point
In absence of any application for stay the High Court could not have passed order
directing the appellant to deposit sum of Rs. 5,00,000/- in the trial Court.
JUDGMENT
DR. ARIJIT PASAYAT, J.—Challenge in this appeal is to the order passed by the Division
Bench of the Kerala High Court. By the impugned order the High Court in exercise of jurisdiction
under Order XLI, Rule 1(3) of the Code of Civil Procedure, 1908 (in short the ‘CPC’) directed
the appellant to deposit a sum of Rs.5,00,000/- in trial Court within a particular time.
Appellants question the correctness of the order on the ground that the High Court could not have
referred to Order XLI, Rule 1(3) in the absence of any application for stay.
 2. Learned counsel for the respondents on the other hand supported the order of the High
Court.
3. Undisputedly, in the present case there was no application for stay filed. A few
decisions of this Court being relevant need to be noted.
4. In Kayamuddin Shamsuddin Khan v. State Bank of India, 1998 (8) SCC 676, the
dispute related to Order XLI, Rule 1(3) it was held that if the amount is not deposited, the appeal
could be directed to be dismissed. Obviously reference was to Order XLIII, Rule 5(5). In
paragraphs 6 and 8 this Court observed as follows:
“6. The learned counsel for the respondent has invited our attention to sub-rule (3)
of Rule 1 of Order XLI in the Code of Civil Procedure, as amended in the State
of Maharashtra, which reads as under:
‘(3) Where the appeal is against a decree for payment of money, the appellant shall,
within such time as the Appellate Court may allow, deposit the amount disputed
in the appeal or furnish such security in respect thereof as the Court may think
fit:
Provided that the Court may dispense with the deposit or security where it deems
fit to do so for sufficient cause.’
8. This would mean that non-compliance with the direction given regarding deposit
under sub-rule (3) of Rule 1 of Order XLI would result in the Court refusing to
stay the execution of the decree. In other words, the application for stay of the
execution of the decree could be dismissed for such non-compliance but the
Court could not give a direction for the dismissal of the appeal itself for such
non-compliance.”
5. Similarly, in Devi Theatre v. Vishwanath Raju, 2004 (7) SCC 337, it was inter alia
observed as follows:
“5. The learned counsel for the appellant submits that appeal lies from every decree
passed by any Court exercising original jurisdiction. The jurisdiction of the
Court in first appeal extends to examine the questions of facts as well as that of
law. It is though true as pointed out by the learned counsel for the respondent that
under Order XLI, Rule 11, CPC it would be open for the Court to dismiss the
appeal in limine at the time of admission but even examining the matter from that
point of view we find that the Court while considering the question of admission
of appeal filed under Section 96, CPC, may admit the appeal if considered fit
for full hearing having prima facie merit. Otherwise, if it finds that the
appeal lacks merits, it may be dismissed at the initial stage itself. But admission
of the appeal, subject to condition of deposit of some given amount, is not
envisaged in the provision as contained under Section 96 read with Order XLI,
Rule 11, CPC. The deposit of the money would obviously have no connection
with the merits of the case, which alone would be the basis for admitting or not
admitting an appeal filed under Section 96, CPC. Further, imposition of
condition that failure to deposit the amount would result in dismissal of the
appeal compounds the infirmity in the order of conditional admission.
6. It is a different matter, in case the appellant prays for stay of the execution of the
decree or for any order by way of an interim relief during the pendency of the
appeal; it is open for the Court to impose any condition as it may think fit and
proper in the facts and circumstances of the case. Otherwise imposing a
condition of deposit of money subject to which an appeal may be admitted
for hearing on merits, is not legally justified and such order cannot be sustained.”
 6. In the instant case there is no direction that in case of non-payment, the appeal is to be
dismissed. In the absence of any application for stay the High Court could not have passed the
order impugned. The direction for deposit as given accordingly stands vacated.
7. The appeal is allowed but without any order as to costs.
Appeal allowed.

[2008 (1) T.N.C.J. 676 (SC)]

SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND AFTAB AALM, JJ.
STATE OF U.P. AND OTHERS ETC. ...Petitioners
Versus
ROSHAN SINGH AND OTHERS ...Respondents
[Civil Appeal Nos. 453-455 of 2008 (Arising out of SLP (C) Nos. 16970-72 of 2005), decided on
16th January, 2008]
(A) Civil Procedure Code, 1908—Section 151—Inherent power—Exercise of—
Inherent powers of the Court are not to be used for the benefit of a litigant who has remedy
under the CPC—Object of Section 151, CPC is to supplement and not to replace the
remedies provided for in the CPC. (Para 7)
(B) U.P. Imposition of Ceiling on Land Holdings Act, 1954—Section 10 (2)—
Declaration of surplus land—Possession taken—Application under Section 151, CPC
claiming benefit of reduction of area in consolidation proceedings—Application dismissed—
Surplus land was distributed—Challenge made under writ jurisdiction—Benefit of
reduction of area in consolidation proceeding granted—Legality of—Conclusions of High
Court are not only cryptic but also without indication of any basis—Long after the period
of provided for preferring an appeal under Section 12 of the Act, the application under
Section 151, CPC was filed—Inherent power cannot be used to reopen the settled matters—
Orders of High Court impugned are not sustainable—Set aside—Appeal allowed.
(Paras 2, 8 and 11)
Case law.—2002 (4) SCC 188; AIR 1964 SC 993.
Important Point
The object of Section 151, CPC is to supplement and not to replace the remedies provided
for in the CPC. Section 151, CPC will not be available when there is alternative remedy.
JUDGMENT
DR. ARIJIT PASAYAT, J.—Leave granted.
2. Challenge in these appeals is to the judgment of the learned Single Judge of the
Allahabad High Court allowing the Civil Misc. Writ Petitions 17464 of 1984, 8825 of 1995 and
1950 of 1995. Challenge in the first writ petition was to the order passed by the Prescribed
Authority under the U.P. Imposition of Ceiling on Land Holdings Act, 1954 (in short the ‘Act’)
and the appellate order passed by the Appellate Authority.
3. Background facts in a nutshell are as follows:
After issuance of notice under Section 10(2) of the Act an area of 17 Bighas 10 Biswas and
2 Biswansis of land of the respondent-Roshan Singh was declared as surplus. Thereafter
consolidation operation commenced. Proceedings under Section 107 of the Act were initiated on
28.3.1974 and the respondent-Roshan Singh was granted opportunity to file his response to the
notice. The objection was filed on 25.5.1974 and by order dated 14.1.1980 the Prescribed
Authority after determining the surplus gave opportunity to the respondent to indicate the choice
of land to be retained. The respondent did not indicate any choice. Therefore by order
dated 8.4.1982, 17 Bighas 10 Biswas and 2 Biswansis of land was declared as surplus.
Thereafter, possession of the surplus land was taken. There is a provision for appeal under
Section 12 of the Act. But the respondent-Roshan Singh did not prefer any appeal. On the
other hand on 17.2.1984 an application titled under Section 151 of the Civil Procedure Code,
1908 (in short ‘CPC’) was filed. Stand taken was that in the consolidation proceedings different
area was indicated and, therefore, holding was reduced. Objections were filed by the
functionaries of the State on 23.3.1984 and 30.3.1984. Considering the objections the
Prescribed Authority by order dated 3.4.1984 rejected the claim of the respondent-Roshan Singh.
An appeal was preferred by him i.e., Revenue Appeal No.24 of 1984 in the Court of III
Additional District Judge, Banda, U.P. The appeal was dismissed on 21.8.1984. Civil Writ
Petition No.17464 of 1984 was filed before the Allahabad High Court. Subsequently, the surplus
land was distributed. These were challenged in Civil Writ Petition No.8825 of 1995 and 1950
of 1995. The first writ petition was allowed by a learned Single Judge with the following
observations:
“Having heard Sri V.K.S. Chaudhary, learned senior counsel appearing on behalf of the
petitioner and Smt. Archana Srivastava, learned Standing Counsel for the respondents,
this Court is of the view that as the reduction of area made during the consolidation
operation is made for public purposes, the petitioner is entitled to the benefit of said
reduction. The submission made by the learned counsel for the petitioner has got force
and therefore, the writ petition deserves to be allowed.”
4. It is to be noted that the above quoted portion was the only basis on which the writ
petition was allowed. Two orders were also allowed following the decision rendered in the first
case.
5. Learned counsel for the appellants submitted that the approach of the High Court is
clearly erroneous. Firstly, petition under Section 151 was not maintainable when statutorily an
opportunity and/or forum is provided which was not availed. Further the proceedings under the
Act and the Consolidation Act operate in different fields and, therefore, even if the area was
different same was on the basis of the parameters under the Consolidation Act and a belated
attempt to re-open concluded issues by resorting to Section 151 was clearly impermissible.

6. Learned counsel for the respondent submitted that there cannot be two different areas;
one under the Act and the other the Consolidation Act. Therefore, the High Court was justified in
its view.
7. The principles which regulate the exercise of inherent powers by a Court have been
highlighted in many cases. In matters with which the CPC does not deal with, the Court will
exercise its inherent power to do justice between the parties which is warranted under the
circumstances and which the necessities of the case require. If there are specific provisions of the
CPC dealing with the particular topic and they expressly or necessary implication exhaust the
scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter,
the inherent powers of the Court cannot be invoked in order to cut across the powers conferred by
the CPC. The inherent powers of the Court are not to be used for the benefit of a litigant who has
remedy under the CPC. Similar is the position vis-a-vis other statutes. The object of Section 151,
CPC is to supplement and not to replace the remedies provided for in the CPC. Section 151, CPC
will not be available when there is alternative remedy and same is accepted to be a well-settled
ratio of law. The operative field of power being thus restricted, the same cannot be risen to
inherent power. The inherent powers of the Court are in addition to the powers specifically
conferred to it. If there are express provisions covering a particular topic, such power cannot be
exercised in that regard. The section confers on the Court power of making such orders as may
be necessary for the ends of justice of the Court. Section 151, CPC cannot be invoked when there
is express provision even under which the relief can be claimed by the aggrieved party. The
power can only be invoked to supplement the provisions of the Code and not to override or evade
other express provisions. The position is not different so far as the other statutes are
concerned. Undisputedly, an aggrieved person is not remediless less under the Act.
8. The conclusions of the High Court are not only cryptic but also without indication of
any basis. As rightly contended by learned counsel for the appellant long after the period
provided for preferring an appeal under Section 12 of the Act, the application under Section 151,
CPC was filed.
9. This Court in State of W.B. and Ors. v. Karan Singh Binayak and Ors., 2002 (4) SCC
188, inter alia observed as follows:
“The period of 25 years under the lease expired in the year 1976. The notification under
the Act was issued on 11th November, 1954. In 1957 record of rights was prepared under
Section 44 of the Act according to which the land was held retainable under Section 6(1)
(b) of the Act. The possession was handed over to the original owners in 1981 on
liquidation of the lessee on an order being passed by the High Court directing official
liquidator to disclaim the property which was later transferred to the writ petitioners in
terms of the agreements of sale entered in the year 1988 and sale deeds in 1992-93.
Meanwhile, in the year 1991 on proceedings being taken under the ULC Act, 6145.90
square metres of the land was held to be excess under the said Act. In June 1993, the
plans were sanctioned and construction commenced. It can, thus, be seen that after the
preparation of record-of-rights, not only the appellants did not take any steps and slept
over the matter but various steps as above were taken by the respondents in respect of the
land in question. The argument that the proceedings under the ULC Act or the
preparation of record-of-rights were ultra vires and the acts without jurisdiction and,
therefore, those proceedings would not operate as a bar in appellants invoking inherent
jurisdiction under Section 151, CPC by virtue of conferment of such power under Section
57-A of the Act is wholly misconceived and misplaced. The inherent powers cannot be
used to reopen the settled matters. These powers cannot be resorted to when there are
specific provisions of the Act to deal with the situation. It would be an abuse to allow the
reopening of the settled matter after nearly four decades in the purported exercise of
inherent powers. It has not even been suggested that there was any collusion or fraud
on behalf of the writ petitioners or the erstwhile owners. There is no explanation
much less satisfactory explanation for total inaction on the part of the appellants for all
these years.”
10. In Arjun Singh v. Mohindra Kumar and Ors., AIR 1964 SC 993, it was, inter alia,
observed as follows:
“There is one other aspect from which the same question could be viewed. Order IX,
Rule 7 prescribes the conditions subject to which alone an application competent under
the opening words of that rule ought to be dealt with. Now, the submission of Mr. Pathak
if accepted, would mean to ignore the opening words and say that though specific power
is conferred when a suit is adjourned for hearing, the Court has an inherent power even
when (a) it is not adjourned for that purpose, and (b) and this is of some importance when
the suit is not adjourned at all, having regard to the term of Order XX, Rule 1. The main
part of Order IX, Rule 7 speaks ‘of good cause being shown for non-appearance’ on a
previous day. Now what are the criteria to be applied by the Court when the supposed
inherent jurisdiction of the Court is invoked? Non- constat it need not be identical with
 what is statutorily provided in Rule 7. All this only shows that there is really no scope
for invoking the inherent powers of the Court. Lastly, that power is to be exercised to
secure the ends of justice. If at the stage of Rule 7 power is vested in the Court and after
the decree is passed Order IX, Rule 13 becomes applicable and the party can avail
himself of that remedy, it is very difficult to appreciate the ends of justice which are
supposed to be served by the Courts being held to have the power which the learned
counsel says must inhere in it. In this view it is unnecessary to consider whether to
sustain the present submission the respondent must establish that the Court was conscious
that it lacked specific statutory power and intended to exercise an inherent power that it
believed it possessed to make such orders as may be necessary for the ends of justice.”
11. Looked at from any angle the orders of the High Court impugned in these appeals
cannot be sustained and are set aside. It is to be noted that subsequent two writ petitions were
allowed primarily on the ground that first writ petition was allowed.
The appeals are allowed but in the circumstances without any order as to costs.
Appeals allowed.

[2008 (1) T.N.C.J. 680 (SC)]

SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.
TULSA AND OTHERS ...Petitioners
Versus
DURGHATIYA AND OTHERS ...Respondents
[Civil Appeal No. 648 of 2002, decided on 15 January, 2008]
th

(A) Evidence Act, 1872—Section 114—Scope of—Refers to common course of natural

events, human conduct and private business.
(Para 9)
(B) Evidence Act, 1872—Sections 50 and 114—Act of marriage—Can be
presumed from the common course of natural events and the conduct of parties as they are
borne out by the facts of a particular case. (Para 9)
(C) Constitution of India, 1950—Article 136—Marriage— Presumption of—
Continuous living together established by the evidence of the witnesses examined by the
plaintiff—Conclusion of first appellate Court that they were living together when Mangal
was alive has not been established—Two were living together after the death of Mangal—
Established from the evidence on record—Judgments of first appellate Court and second
appellate Court are unsustainable—Set aside—Judgment of trial Court restored—Appeal
allowed. (Paras 3, 4, 8, 15 to 17)
Case law.—AIR 1927 PC 185; AIR 1929 PC 135; AIR 1978 SC 1557; AIR 1952 SC 231.
Important Point
Where a man and woman are proved to have lived together as husband and wife, the
law will presume unless contrary is proved that they were living together in consequence of a
valid marriage and not in a state of concubinage.
 JUDGMENT
DR. ARIJIT PASAYAT, J.—Challenge in this appeal is to the judgment rendered by a
learned Single Judge of the Madhya Pradesh High Court at Jabalpur. The appeal under Section
100 of the Code of Civil Procedure, 1908 (in short the ‘Code’) was directed against the
judgment and decree dated 29.10.1988 passed by learned IInd Additional District Judge, Satna in
Civil appeal No. 138-A of 1987. The appeal before the First appellate Court was directed against
the judgment and decree dated 26.4.1985 passed by learned Second Civil Judge Class I, Satna in
Civil Suit No. 52-A of 1982. The suit was filed by the respondents herein for nullifying and
setting aside sale deed dated 10.9.1980 and also for permanent injunction of land at Sl. Nos.
4009, 4010, 4011 and 4014. The sale deed dated 10.9.1980 was in respect of lands at Sl. Nos.
3853, 3993, 4002, 4003, 4004, 4009, 4010, 4014, 4015 and 4021 of Mauza Nayagaon, Tehsil
Raghurajnagar, District Satna. According to them the disputed property is the joint ancestral
property of Radhika Singh, Sunder Singh and the husband of plaintiff No.1, Dadau Singh who
was the father of the other two plaintiffs - Smt. Rani and Smt. Butan. Vansh Gopal had three
sons, Radhika Singh, Sunder Singh and Dadau Singh. Sunder died without any legal heir. No
partition had taken place between Radhika and Sunder and Radhika, Sunder and Dadau all used
to do cultivation jointly. As Radhika and Sunder died without leaving legal heirs, the plaintiffs
became the sole owners of the property. Loli, the original defendant No.1 is the wife of Mangal
Kachhi and his daughter Tulsa Bai, the present appellant was born to Loli and Mangal Kachhi.
After the birth of her daughter Tulsabai, deceased Radhika Singh, kept defendant No.1 as a
mistress in his house and left for somewhere else taking her along and came back after many
years. She gave birth to three daughters namely Vidya, Badaniya and Rajaniya. Defendant No.1
was a Kachhia by caste and was also the cognitive of deceased Radhika, so she had no legal
rights in the property. After the death of Radhika, Defendant No.1 was residing with Badri Prasad
Pandey. Badri Prasad got sale deed executed in favour of defendant No.1 of disputed property
with intention to usurping the land. Plaintiffs are in possession. They came to know about the
transaction when defendant Nos.2 to 4 submitted an application for transfer of land in their names
and then it came to light that defendant No.1 had no title over the land and the land was in
possession of plaintiffs 1 to 3. On 17.12.1984 plaintiffs got the information that the defendant
Nos.2 and 3 have got their names mutated in respect of certain lands, therefore the suit was filed.
In the written statement filed the defendants took the stand that the family tree indicated by the
plaintiff was correct. Out of the land 12 acres owned by the family of Durghatiya, the plaintiff
No.1 had sold her share of land. About 30 years back partition has taken place between Dadau
and Sunder. Dadau had separated after taking his share. He got the land in certain villages.
Radhika and Sunder used to live jointly and used to do cultivation over the land which they got in
partition. They died while living jointly in the year 1970. Plaintiff-Durghatia and Radhika had
sold their land in the capacity of owners during their lifetime. Sunder did not marry and had no
issue. Defendant No.1 is the widow of Radhika. They were blessed with five daughters and one
son, out of which one son and one daughter died. The eldest daughter Tulsa and the younger
daughter were given in marriage by Radhika. Plaintiff No.1 used to regard defendant No.1 as her
jethani. Radhika and defendant No.1 lived together for thirty years as husband and wife and,
therefore, she had legitimate claim over the property as his wife. It was also disputed that
defendant No.1 was living with defendant Nos.2 to 5. Defendant No.1 had sold the lands to
defendant Nos.2, 3 and 4 had also given possession. Defendant No.1 had taken a debt on the
marriage of her son and for that purpose she sold the land. She claimed that she had right to sell
the land and therefore no question of having any illegal possession. Four issues were framed by
the trial Court and the important and vital issue was framed as issue No.2 which read as follows :
“Whether the defendant No.1 was the wife of Radhika Singh”?
 The question was answered in the affirmative. After referring to the evidence of the
witnesses examined by the plaintiffs as well as the defendants, the trial Court held that there was
no merit in the suit and accordingly it was dismissed. The judgment and decree were questioned
in appeal before the first appellate Court.
2. As noted above, the first appellate Court allowed the appeal. The trial Court noted that
there was a presumption of valid marriage, as for decades Radhika and plaintiff No.1 lived
together, their daughters were given in marriage by Radhika. Loli the defendant No.1 was earlier
married to Mangala Kochhi and after his death she married Radhika. It is to be noted that the
stand of the plaintiffs was that Loli married Radhika during the lifetime of Mangal Katchhi. The
trial Court rejected this plea. The first appellate Court observed that Loli started living with
Radhika during the life time of Mangal Katchhi, so the presumption of valid marriage was not
there. The judgment and decree of the first appellate Court was challenged before the High Court.
The High Court formulated the following questions for adjudication:
“Whether in the facts and circumstances of the case, the first appellate Court erred in
law in finding that Mst. Lollibai was not the legally married wife of Radhika Singh?”
3. After discussing the respective stand of the parties, the High Court came to a somewhat
peculiar finding. It held that the findings recorded by the appellate Court may be erroneous, but it
does not appear to be perverse.
4. It is to be noted that the first appellate Court without any evidence or material came
to an abrupt conclusion that the defendant No.1 Loli started living with Radhika during the
lifetime of her husband. There is no discussion with reference to any material as to the basis for
such a conclusion.
5. Some of the conclusions of the trial Court in this regard are relevant. In paragraph 16 of
the judgment it was noted as follows:
“In the content of the aforesaid judgment, now we have to examine this that whether
we have sufficient basis to make a presumption of legal marriage of Lolli and Radhika
Singh. In this connection, plaintiff witness Visheshar had admitted in para 9 of his
statement that there were four daughters and one son born of Lolli and Radhika Singh.
The eldest daughter of Lolli is Tulsi. Rani was born to Lolli after 2-3 years of her
arriving in the village. Three of the daughters of Lolli was married off by Radhika
Singh and she had also contributed.”
6. Again at para 18 it was observed as follows:
“Witness Devdhari has also admitted in his statement that after 2-3 years of the birth of
first born Bhaiyalal Mangal Kachhi had died. Lolli used to work as a labourer. She also
used to be labourer with Radhika Singh. Radhika Singh had retained Lolli as his wife.
The daughters of Lolli were married off by Radhika Singh. Ram Milan Singh had
admitted in his statement that all these four daughters were alive. They were born of
Radhika and Lolli. The daughters which were born of Radhika Singh, their Kanyadan
was also performed by Radhika Singh. He has also admitted this in his statement that
Radhika Singh had married off his daughters as Vaishyas and Thakurs married off their
daughters. He had attended the marriage.”
7. In para 24 it was observed as follows:
“This has also been argued by learned counsel of the plaintiff that even if this is accepted
that Lolli and Radhika Singh stayed as husband and wife for many days and they were
blessed with children even then it cannot be presumed that Lolli is legitimate wife of
Radhika Singh. Because Lolli moved in with Radhika Singh when her husband had been
alive. His former husband Mangal Kachhi had been alive, till she got divorce by Mangal
 Kachhi till then Lolli could not have entered in second marriage with Radhika Singh. I
am not in agreement with this argument of the learned counsel of the plaintiff because the
evidence, which has been adduced from the side of the plaintiff and defendants, from
that it becomes clear, that after Bhaiyalal was born to Lolli from Mangal, Mangal had
thrown Lolli out of the house. Then Lolli worked as a casual labourer for some time and
meanwhile Mangal had died. Thereafter Radhika Singh adopted her as his wife. This
fact has been admitted by Devdhari in para 4 of his statement that Lolli used to frequent
village Bointa from Bandhi to work as a labourer, thereafter she was adopted.”
8. In contrast, the first appellate Court held that Bhaiyalal (DW2) who was born to Lolli
and Mangal, had stated that he was very young when his father died and when he was young his
mother had left. From that it was inferred that during the lifetime of Mangal Katchhi, Lolli left
the Mangal and was living with Radhika. This conclusion is clearly contrary to the evidence on
record. A bare reading of the evidence of DW 2 shows that he had clearly stated that Mangal was
not alive when Lolli came and stayed with Radhika.
9. At this juncture reference may be made to the Section 114 of the Indian Evidence Act,
1872 (in short the “Evidence Act”). The provision refers to common course of natural events,
human conduct and private business. The Court may presume the existence of any fact which it
thinks likely to have occurred. Reading the provisions of Sections 50 and 114 of the Evidence
Act together, it is clear that the act of marriage can be presumed from the common course of
natural events and the conduct of parties as they are borne out by the facts of a particular case.
10. A number of judicial pronouncements have been made on this aspect of the matter.
The Privy Council, on two occasions, considered the scope of the presumption that could be
drawn as to the relationship of marriage between two persons living together. In first of them i.e.,
A. Dinohamy v. W.L. Blahamy, AIR 1927 P.C. 185, their Lordships of the Privy Council laid
down the general proposition that:
“Where a man and woman are proved to have lived together as man and wife, the law
will presume, unless, the contrary be clearly proved that they were living together in
consequence of a valid marriage, and not in a state of concubinage.”
11. In Mohabhat Ali v. Md. Ibrahim Khan, AIR 1929 PC 135, their Lordships of the Privy
Council once again laid down that:
“The law presumes in favour of marriage and against concubinage when a man and
woman have cohabited continuously for number of years.”
12. It was held that such a presumption could be drawn under Section 114 of the
Evidence Act.
13. Where the partners lived together for long spell as husband and wife there would be
presumption in favour of wedlock. The presumption was rebuttable, but a heavy burden lies on
the person who seeks to deprive the relationship of legal origin to prove that no marriage took
place. Law leans in favour of legitimacy and frowns upon bastardy. See: Badri Prasad v. Dy.
Director of Consolidation and Ors., AIR 1978 SC 1557.
14. This Court in Gokal Chand v. Parvin Kumari, AIR 1952 SC 231, observed that
continuous cohabitation of woman as husband and wife and their treatment as such for a number
of years may raise the presumption of marriage, but the presumption which may be drawn from
long cohabitation is rebuttable and if there are circumstances which weaken and destroy that
presumption, the Court cannot ignore them.
15. As noted above, the continuous living together of Lolli and Radhika has been
established. In fact the evidence of the witnesses examined by the plaintiff also established this
fact. The conclusion of the first appellate Court that they were living together when Mangal was
alive has not been established. The evidence on record clearly shows that Lolli and Radhika were
living together after the death of Mangal.
16. Above being the position, the appeal deserves to be allowed which we direct. The
judgment and decree of the first appellate Court and the High Court are set aside and those of the
trial Court stand restored.
17. Appeal is allowed but with no order as to costs.
Appeal allowed.

[2008 (1) T.N.C.J. 686 (SC)]

SUPREME COURT
BEFORE:
C.K. THAKKER AND ALTAMAS KABIR, JJ.
GAUDIYA MISSION ...Appellant
Versus
SHOBHA BOSE AND ANOTHER ...Respondents
[Civil Appeal No. 398 of 2008, Arising out of SLP (C) No. 12465 of 2006, decided on 15 th
January, 2008]
Indian Succession Act, 1925—Section 384—Appeal under—Statutory appeal—
Regular appeal—All questions of fact and of law are open to be urged before the appellate
Court—Expected from the Court to consider all submissions and contentions of the parties
—Party aggrieved before the Division Bench in intra Court appeals can raise all those
questions which could be raised before the Single Judge of the High Court in first appeal—
Order dismissing the appeal in limine is unsustainable—Arguable points were raised
by the appellant in the appeal which ought to have been admitted by Division Bench—
Judgment impugned set aside—Direction issued to admit the appeal and decide the same in
accordance with law after recording reasons.
(Paras 7, 14, 18 to 22)
Case law.—1975 (1) SCR 611.
Important Point
Party aggrieved before the Division Bench in intra-Court/Letters Patent Appeal can raise
all those questions which could be raised before a Single Judge of the High Court in first appeal.
JUDGMENT
C.K. THAKKER, J.—Leave granted.
2. The present appeal is directed against summary dismissal of Special Appeal No. 527 of
2006 by a Division Bench of the High Court of Judicature at Allahabad on May 24, 2006. By the
said order, the Division Bench of the High Court confirmed the judgment and order dated March
28, 2006 passed by a Single Judge of that Court in Testamentary Case No. 8 of 2000 on the
Original Side of Testamentary and Intestate Jurisdiction.
3. Brief facts of the case are that one Narendra Nath Bose, resident of Allahabad and
working as Lecturer, Government Girls’ Inter College, Gonda (U.P.) was having his family
consisting of his wife Radha Rani Bose and three daughters, (i) Asha Bose, (ii) Uma Bose and
(iii) Shobha Bose (respondent herein). All the three sisters (daughters of deceased Narendra Nath)
decided not to marry. Kum. Asha Bose died on June 9, 1990.
4. Kum. Uma Bose was serving as a Lecturer in Government Girls College, Gonda, U.P.
and was a disciple of ‘Gaudia Mission’ (hereinafter referred to as ‘the Mission’) a Society,
registered under the Societies’ Registration Act, 1860 (appellant herein). She was closely
associated with the activities of the Mission and also got printed various religious books and
literature for the Mission by spending considerable amount. It is the case of the appellant that
after her retirement from the College, she was living in Vrindaban and not with her sister Kum.
Shobha Bose-respondent at Allahabad. She continued to take interest in the activities of the
Mission. Because of her attachment and dedication towards work of the Mission, she executed a
Will on December 28, 1994 bequeathing her properties in favour of the Mission. The Will was
duly registered. On September 09, 1996, said Kum. Uma Bose executed a codicil in favour of the
appellant Mission in relation to certain further sums and movable properties which had come to
her share and also her share in immovable properties at Vrindaban. The Codicil was also
registered on September 19, 1996. On November 18, 1996, Kum. Uma Bose died in Vrindaban.
5. According to the appellant Mission, Kum. Shobha Bose-respondent No.1 herein-real
sister of late Uma Bose, never kept any relation with her and never looked after her and continued
to stay at Allahabad only. It is the case of the appellant that in 1997, respondent No. 1 Kum.
Shobha Bose applied for a Letter of Administration to the estate of deceased Kum. Uma Bose
concealing real facts of Will and Codicil in favour of appellant-Mission. The Letter of
Administration was granted to her on September 26, 1997 but on application at the instance of the
appellant Mission, the certificate was cancelled. The appellant-Mission applied for Probate for
the Will executed by deceased Kum. Uma Bose by filing Probate Case No. 174 of 1997 before
the Division Bench of Allahabad High Court. The application was, however, withdrawn by the
appellant with liberty to file fresh proceedings. Respondent No. 1-Kum. Shobha Bose filed
Testamentary Suit for the estate of deceased Kum. Uma Bose. The appellant-Mission filed its
objections to the said suit and claimed that it was the appellant who was entitled to the property
of deceased Uma Bose and Kum. Shobha Bose had no right, title or interest in the estate of late
Kum. Uma Bose. Issues were framed by the Court and witnesses were examined. Respondent
No.1-Kum. Shobha Bose produced a sale deed said to have been executed by Kum. Uma Bose
long back and contended that signature on the sale deed and that in the Will did not tally. The
appellant-Mission applied to the High Court that the signatures be examined by hand-
writing expert. But the prayer was not granted by the Court.
6. The matter was then heard by a Single Judge of the High Court and by judgment and
order dated March 28, 2006, the learned Judge himself compared the hand-writing of deceased
Kum. Uma Bose in sale deed and in the Will and held that the Will was surrounded by suspicious
circumstances. He also observed that the deceased was not living in Vrindaban and was not being
looked after by the Mission as claimed by the Mission. He held that Kum. Shobha Bose was the
real sister of deceased Kum. Uma Bose. In that capacity, she was entitled to a Letter of
Administration of the estate and credits of late Kum. Uma Bose. The Court consequently ordered
payment of amount received from the Bank by the deceased to Kum. Shobha Bose holding that
she was entitled to the said amount. She was also held to be the owner of the house. The learned
Judge also imposed cost of Rs.25,000/- on the Mission-appellant herein.
7. Being aggrieved by the order passed by the trial Court (Single Judge), Special Appeal
was filed by the appellant herein before the Division Bench of the High Court which, as stated
above, was dismissed in limine by the Division Bench holding that the view taken by the Single
Judge was correct and appeal did not require admission. Hence, the present appeal has been
preferred by the appellant-Mission.
8. Notice was issued by this Court on August 11, 2006. Interim stay of recovery was also
granted. Affidavit in reply and affidavit in rejoinder were thereafter filed. The matter was ordered
to be posted for final hearing and that is how the matter has been placed before us.
9. We have heard learned counsel for the parties.
 10. The learned counsel for the appellant Mission has raised several contentions. He
submitted that an appeal filed before Division Bench of the High Court was a regular statutory
appeal. It was in the nature of first appeal and all questions ‘questions of fact as well as of law’
could be agitated. It was, therefore, incumbent on the Division Bench of the High Court to admit
the appeal and to decide it after appreciating the evidence on record by a detailed and reasoned
judgment. Dismissal of appeal in limine by the Division Bench was improper and on that ground
alone, the impugned order deserves to be set aside. It was also urged that even if the appeal is
considered to be an intra-Court appeal, all questions of fact and of law could be argued and the
Division Bench cannot refuse to admit the appeal by dismissing it at the threshold observing that
it agrees with the finding recorded by the trial Court. It was also urged that as many as thirteen
issues were framed by the trial Court and all those issues were required to be considered by the
Division Bench. They raised disputed questions of fact which necessitated appreciation of
evidence, application of mind by the Division Bench and a reasoned judgment. The counsel
argued that from the facts, it was clearly established that there was a Will executed by the
deceased Kum. Uma Bose in 1994 which was duly registered. Similarly, there was a codicil of
1996 which was also registered. They ought to have been considered but they were not
considered by the Division Bench in their proper perspective. According to the counsel, if
respondent No.1 challenged legality and validity of the Will, the proceedings initiated on the
Original Side of the High Court were not maintainable and the only Court which had jurisdiction
to decide such question was a competent Civil Court which had exclusive jurisdiction in such
matters. Testamentary Suit instituted by the respondent No. 1 before the learned Single Judge on
the Original Side of the High Court was, therefore, not maintainable. The counsel made serious
grievance against the order passed by the learned Single Judge and confirmed by the Division
Bench on the ground that they had committed grave error in comparing signatures and hand-
writings of deceased Kum. Uma Bose on sale deed and in the Will and in coming to the
conclusion that the signatures and the hand-writings differed and they were not of one and the
same person. The counsel urged that this Court has held in several cases that no comparison of
hand-writing should be made by a Court as it is the function of an expert. It is dangerous,
hazardous and risky to record a finding on comparison of hand-writings on different documents
and it should be avoided. In the instant case, though the said objection was taken before the trial
Court by the appellant and an application was also made to send the hand-writings to
experts, the prayer was rejected and the Court proceeded to undertake the exercise which was not
warranted. But, even otherwise, the appellant contended that the Court was in error in comparing
handwritings of Kum. Uma Bose in the Will on the one hand and in the sale deed on the other
hand. So far as sale deed is concerned, it was said to have been executed in 1987 whereas Will
was executed in 1994. There was thus substantial time lag between the sale deed and the Will and
the said important and vital fact had not been considered properly by the learned Single Judge.
On all these grounds, it was submitted that the appeal deserves to be allowed by setting aside the
orders passed by both the Courts or in any case by the Division Bench of the High Court by
remitting the matter to the appellate Court and directing it to admit the appeal and to decide it
by a reasoned judgment.
11. The learned counsel for the respondent, on the other hand, supported the order
passed by the Division Bench of the High Court. According to him, the Division Bench did not
think it fit to admit the appeal since it agreed with the reasons recorded and conclusions reached
by the learned Single Judge who had considered all points and no fault can be found against such
order. It was argued that on the basis of the evidence on record, the learned Single Judge held that
as a sole surviving member of the family of Narendra Nath Bose, respondent No.1-Kum. Shoba
Bose was entitled to the property of her elder sister late Kum. Uma Bose and no disputed
questions of fact were involved in the suit. On the basis of evidence adduced by the parties, the
learned Single Judge held that there was nothing to show that the appellant-Mission was
entitled to any relief and the respondent No. 1 had right to apply for Letter of Administration who
could get the said relief and the Division Bench agreed with the said conclusion. Regarding
comparison of signature and hand-writings, it was submitted by the counsel that it is open to a
Court of Law to compare hand-writings and reliance in this connection was placed on Section 73
of the Evidence Act, 1872. It was submitted that the law enables a Court to make comparison of
hand-writings and if the statutory power was exercised by the learned Single Judge, it cannot be
contended that the Court was wrong. The appeal, hence, deserves to be dismissed.
12. Having heard learned counsel for the parties, in our opinion, on a short ground, the
appeal deserves to be allowed. From the facts, it is clear that great many questions were involved
in the Testamentary Suit instituted by the respondent No. 1. Several issues were framed by the
trial Court and the suit was decided by a detailed judgment entering into merits of the matter. In
our opinion, therefore, the learned counsel for the appellants is right in submitting that the
Division Bench of the High Court ought to have admitted the appeal. It was not right in
dismissing statutory appeal in limine. No doubt, an order dismissing the appeal is a speaking
order containing few pages. But, in our opinion, the appeal instituted by the appellant before the
Division Bench was a statutory appeal under Section 384 of the Indian Succession Act, 1925.
13. Section 384 reads thus:
“384. Appeal.—(1) Subject to the other provisions of this Part, an appeal shall lie to the
High Court from an order of a District Judge granting, refusing or revoking a
certificate under this Part, and the High Court may, if it thinks fit, by its order on
the appeal, declare the person to whom the certificate should be granted and
direct the District Judge, on application being made therefor, to grant it
accordingly, in supersession of the certificate, if any, already granted.
(2) An appeal under sub-section (1) must be preferred within the time allowed for an
appeal under the Code of Civil Procedure, 1908 (5 of 1908).
(3) Subject to the provisions of sub-section (1) and to the provisions as to
reference to and revision by the High Court and as to review of judgment of the
Code of Civil Procedure, 1908 (5 of 1908) as applied by Section 141 of that
Code, an order of a District Judge under this Part shall be final.”
14. Bare reading of the aforesaid provision leaves no room for doubt that it is a regular
appeal and all questions i.e., questions of fact and of law are open to urge before the appellate
Court. In the circumstances, it was expected of the Division Bench to consider all submissions
and contentions of the parties. We are also of the view that the argument of the learned
counsel for the appellants that the Will as well as Codicil were executed in 1994 and 1996 and
both were duly registered, was one of the relevant factors which ought to have been kept in mind
by the Division Bench. Again, even if it is held that a Court of law has power, authority and
jurisdiction to compare hand-writings under Section 73 of the Evidence Act, the point raised as to
whether on the facts and in the circumstances of the case and in the light of an application made
by the appellant-Mission that they may be sent to hand-writing expert, the Court should have
undertaken the exercise of comparison of hand-writings was a relevant issue. This is coupled with
the fact that the sale deed said to have been executed by deceased Kum. Uma Bose was of 1987
and Will and Codicil were of 1994 and 1996 respectively.
15. We are not prepared to agree with the learned counsel for the respondent that the scope
of appeal before the Division Bench was very much limited. Even in an appeal from a decision of
a Single Judge of the High Court in First Appeal, a Division Bench of the High Court has power
to consider all questions, whether of facts or of law, which could be raised before a Single Judge.
In other words, the party aggrieved before the Division Bench in intra-Court/Letters Patent
Appeal can raise all those questions which could be raised before a Single Judge of the High
Court in First Appeal.
16. In Asha Devi v. Dukhi Sao, (1975) 1 SCR 611: AIR 1974 SC 2048, a similar question
came up for consideration before this Court. There, a First Appeal came up for hearing before a
Single Judge of the High Court and was disposed of. Against the said order, a Letters Patent
Appeal was filed. A preliminary objection was raised on behalf of the respondents that since it
was an appeal from an order passed by a Single Judge of the High Court in First Appeal, the
appeal before the Division Bench was really in the nature of Second Appeal and questions of law
only could be agitated in such Letters Patent Appeal.
17. Negativing the contention and holding that the scope of appeal before the Division
Bench was similar to one before a Single Judge, this Court stated:
“There is no dispute that an appeal lies to a Division Bench of the High Court from the
judgment of a Single Judge of that Court in appeal from a judgment and decree of a Court
subject to the superintendence of the High Court. The only question is whether the
power of a Division Bench hearing a Letters Patent appeal under Clause 10 of the Letters
Patent of Patna High Court or under the analogous provisions in the Letters Patent of
other High Courts is limited only to a question of law under Section 100 of the CPC or
has it the same power which the Single Judge has as a first Appellate Court in respect of
both questions of fact and of law. The limitations on the power of the Court imposed by
Sections 100 and 101 of the CPC cannot be made applicable to an Appellate Court
hearing a Letters Patent appeal from the judgment of a Single Judge of that High
Court in a first appeal from the judgment and decree of the Court subordinate to the High
Court, for the simple reason that a Single Judge to the High Court is not a Court
subordinate, to the High Court”.
18. From what has been observed by this Court in Asha Devi and considering the fact that
an appeal under Section 384 of the Indian Succession Act is a regular appeal, we are of the
view that arguable points had been raised by the appellant-Mission in the appeal which ought to
have been admitted by the Division Bench.
19. On overall considerations, in our judgment, the appeal deserves to be allowed by
setting aside the order passed by the Division Bench and by ordering admission of appeal
remitting it to the Division Bench of the High Court to be decided in accordance with law after
recording reasons.
20. For the foregoing reasons, the appeal is allowed. The order passed by the Division
Bench in Gaudiya Mission v. Km. Shobha Bose & Anr. is set aside. The appeal will stand
admitted. The Division Bench will now hear the parties on merits and decide the case in
accordance with law by a reasoned judgment. On the facts and in the circumstances of the case,
however, there shall be no order as to costs.
21. Before parting with the matter, we may clarify that we have not expressed any opinion
on merits of the matter one way or the other. All the observations made by us hereinabove have
been made only for the purpose of deciding the present appeal and as and when the matter will be
placed for hearing before the Division Bench, the same will be decided strictly on its own merits
without being influenced by the above observations.
22. The appeal is accordingly allowed.
Appeal allowed.
 [2008 (1) T.N.C.J. 693 (SC)]
SUPREME COURT
BEFORE:
TARUN CHATTERJEE AND DALVEER BHANDARI, JJ.
BOKKA SUBBA RAO ...Appellant
Versus
KUKKALA BALAKRISHNA AND OTHERS ...Respondents
[Civil Appeal No. 1245 of 2008 (Arising out of SLP (C) No. 3228 of 2006), decided on 12 th
February, 2008]
Civil Procedure Code, 1908—Section 100—Second appeal—High Court before
allowing the second appeal, ought to have formulated the substantial questions of law—
And thereafter to decide the same on consideration of such substantial questions of law—
Not following the mandate—Judgment and order set aside—Matter remitted for fresh
decision after formulation of the substantial questions of law.
(Paras 4 and 5)
JUDGMENT
TARUN CHATTERJEE, J.—Leave granted.
2. At the time of issuing notice to the special leave petition, this Court confined notice as
to why the second appeal should not be remitted to the High Court for failure to formulate and
decide the substantial question of law as required by Section 100 of the Code of Civil Procedure.
3. A suit was filed by the plaintiffs-respondents for declaration that Item No.2 of the plaint
schedule property was their absolute property, and for a perpetual injunction, restraining the
respondents from obtaining possession of the said item. The suit was dismissed, which was
affirmed in appeal. However, by the impugned judgment of the High Court passed in second
appeal, the suit was decreed. Feeling aggrieved by the aforesaid judgment of the High Court of
Andhra Pradesh at Hyderabad, a special leave petition has been filed in respect of which leave
has already been granted.
4. Having heard the learned counsel for the parties and after examining the judgment of
the High Court passed in the second appeal, we are of the view that the judgment in second
appeal of the High Court is liable to be set aside on a very short question. It is now well settled by
catena of decisions of this Court that the High Court in second appeal, before allowing the same,
ought to have formulated the substantial questions of law and thereafter, to decide the same on
consideration of such substantial questions of law. In this case, admittedly no such substantial
question of law had been formulated and thereafter, the second appeal was allowed. That being
the position, we set aside the judgment of the High Court passed in second appeal and remit the
appeal back to the High Court for fresh decision after formulating the substantial questions of law
and thereafter, to decide it on merits.
5. For the reasons aforesaid, the judgment of the High Court is set aside. The second
appeal is restored to its original file. The High Court is requested to dispose of the second appeal
at an early date preferably within six months from the date of supply of a copy of this order to it.
We make it clear that we have not gone into the merits of the appeal which shall be decided after
formulating the substantial questions of law and then to decide the second appeal in accordance
with law.
6. The appeal is, therefore, allowed to the extent indicated above. There will be no order as
to costs.
Appeal allowed.
 [2008 (1) T.N.C.J. 694 (Mad)]
MADRAS HIGH COURT
BEFORE:
P. JYOTHIMANI, J.
S.R. RAMALINGAM …Petitioner
Versus
R. VIVEKANANDAN AND OTHERS …Respondents
[Civil Revision Petition (PD) No. 2139 of 2007 and M.P.No. 1 of 2007, decided on 13 th
December, 2007]
Civil Procedure Code, 1908—Order XLI, Rule 3 r/w Section 151—Application under
—To reject the appeal—Dismissed—Legality of—Rejection of the memorandum of appeal
cannot be made on the same grounds available under Order VII, Rule 11, CPC—Deficit
court-fee has been paid—From the same common judgment another appeal has been filed
—Court below has come to the conclusion that the appellants must be given an
opportunity to present their appeal in the interest of justice—Court-fee has been paid
within the time granted by the Court—Presentation of other appeal was not objected
though was filed in the same manner—Lower Appellate Court rightly rejected the
application—No interference warranted—Revision petition dismissed.
(Paras 9 and 21)
Case law.—2007 (4) MLJ 433; 2003 (2) MLJ 305; 2007 (5) CTC 283; 2007 (3) CTC 144;
2005 (5) CTC 401; AIR 1995 SC 1945; 2002 (3) LW 687; 83 LW 866; 1992 MLJ 60; AIR 1993
SC 1241.
Counsel.—Ms. P.T. Asha for M/s. Sarvabhuman Associates, for the petitioner; Mr. M.M.
Sundaresh for the respondents 1 and 2; Mr. V. Raghavachari for the respondents 3 to 7.
Important Point
Rejection of the memorandum of appeal cannot be made on the same grounds available
under Order VII, Rule 11, CPC.
JUDGMENT
P. JYOTHIMANI, J.—The plaintiff in O.S.No.380 of 2001, who is the first defendant in
O.S.No.460 of 2002, both on the file of II Additional District Munsif, Erode, is the revision
petitioner.
2. The revision is directed against the order of the First Appellate Court, viz., the First
Additional Subordinate Judge, Erode, passed in I.A.No.760 of 2006 in A.S.No.60 of 2006, by
which the application filed by the petitioner under Order XLI, Rule 3 and Section 151 of the Code
of Civil Procedure, to reject the appeal, was dismissed.
3. The petitioner has filed suit in O.S.No.380 of 2001 for declaration that “A” schedule
property is a common property and for mandatory injunction against defendants 1 and 2 to restore
“A” schedule property to its original position and also for permanent injunction against
defendants 1 and 2 in respect of “A” schedule property. The defendants 1, 2, 7, 12, 13 along with
other three persons have filed O.S.No.460 of 2002 against the revision petitioner and others for
declaration of their title and for consequential injunction, including mandatory injunction against
the revision petitioner to close the doorway and pipeline opening out into the suit property and
also for removal of the said pipeline.
 4. Both the suits were tried together by the learned trial Judge. The suit filed by the
petitioner in O.S.No.380 of 2001 was decreed while the suit filed by the defendants in the said
suit in O.S.No.460 of 2002 was dismissed. It was against the dismissal of suit in O.S.No.460 of
2002, the plaintiffs in the said suit have filed the first appeal in A.S.No.60 of 2006, in which the
revision petitioner was the first respondent. The revision petitioner, pending the said appeal has
filed I.A.No.760 of 2006 under Order XLI, Rule 3, CPC, to reject the appeal memorandum
contending inter alia that the appeal was filed by the respondents on 30.01.2006 without affixing
the sufficient court-fees on the memorandum of appeal, especially when the amount of court fee
paid by the respondents at the time of original filing of the appeal was only Rs.10/- whereas the
court fee payable is Rs.900/-. Therefore, the appeal papers were rightly returned for payment
of deficit court-fees and after six months when the defects were complied with, there was not
even an order obtained from the Court under Section 149 of Code of Civil Procedure for
condoning the delay in the payment of deficit court-fees. Subsequently, the appeal was numbered
on 28.06.2006 on payment of remaining court fees and in the absence of petition to condone the
delay of six months in paying the large amount of deficit court-fees, it should be presumed to
have been filed only on 28.06.2006, by which time the appeal is time barred. It was the further
case of the petitioner that the 5th respondent Karuppanna Gounder died on 14.02.2004 itself,
which is much prior to the date of disposal of the suit and therefore, the suit got abated so far as
the 5th appellant in A.S.No.60 of 2006 and 5th plaintiff in O.S.No.460 of 2002 is concerned.
However, without impleading all the legal representatives of the 5th respondent, the appeal was
filed and hence, it is on these two grounds, the application for rejection of the appeal was filed.
5. The learned First Appellate Judge, relying upon Section 149, CPC has rejected the
application on the basis that when once the Court has extended time for compliance and during
the time granted by the Court if the deficit court-fees has been paid, the same should be taken as
permission granted by the Court for payment of deficit court-fees and therefore, the same cannot
be a ground for the purpose of rejecting the appeal. Further, the First Appellate Court has found
that in fact the appeal was filed on 30.01.2006, which was returned by the office of the Court for
payment of deficit court-fees and after compliance, the same was represented on 25.04.2006 and
after full compliance, it was again represented on 28.06.2006 and during the said period, the
Court has given time for effecting compliance of deficit court-fees. The Court has further found
that against the common judgment, the plaintiffs in O.S.No.460 of 2002 have filed appeal in
A.S.No.26 of 2006, wherein an interim application was filed in I.A.No.143 of 2006, and the same
parties have also filed another appeal in January, 2006 in which compliance was made and the
same was numbered on 28.06.2006, and in that appeal, the petitioner has not chosen to raise any
objection and therefore, holding that various judgments relied upon by the revision petitioner
are not applicable to the facts of the case, the learned first appellate Judge dismissed the
application.
6. Ms.P.T.Asha, learned counsel appearing for the petitioner would submit that the
respondents have filed the first appeal on 30.01.2006 by paying a minimum court-fee of Rs.10/-,
whereas the court-fees to be paid is Rs.900/- and therefore, subsequently when the deficit court
fees was paid, it was mandatory on the part of the respondents to file an application under Section
149 of Code of Civil Procedure, to obtain leave to pay the deficit court-fees. In the absence of
such application, the appeal is liable to be rejected. It is also her submission that even applying
Order VII, Rule 11 of Code of Civil Procedure dealing with rejection of plaint, the deficit court-
fees should be paid only after obtaining necessary leave from the Court and the analogy
applicable in respect of rejection of plaint is also applicable to the rejection of appeal under Order
XLI, Rule 3 of Code of Civil Procedure. To substantiate her contention, she would rely upon the
following judgments of this Court, viz.,—
(i) 2007 (4) MLJ 433 (P.Sakthivel v. Ponnusamy);
 (ii) 2003 (2) MLJ 305 (K.Natarajan v. P.K.Rajasekaran);
(iii) 2007 (5) CTC 283 (P.M.Gopalasamy v. C.Senpagam);
(iv) 2007 (3) CTC 144 (V.N.Subramaniayam v. A.Nawab Johan and 5 others); and
(v) 2005 (5) CTC 401 (S.V.Arjunaraja v. P.Vasantha).
7. On the other hand, Mr.M.M.Sundaresh and Mr.V.Raghavacahari, learned counsel
appearing for the respondents would submit that inasmuch as, admittedly, after filing of the
appeal, the Court has returned the papers for compliance, viz., for payment of deficit court-
fees and within the time granted by the Court the court-fees has been paid and appeal papers
represented, there is no question of filing an application under Section 149 of Code of
Civil Procedure. It is also their contention that the petitioner has not chosen to raise such
objection when another appeal in A.S.No.26 of 2006 was filed in the same manner against the
very same common judgment passed by the trial Court.
8. I have heard the learned counsel for the petitioner as well as respondents and perused
the entire records.
9. On facts, it is not in dispute that the respondents have filed the appeal on 30.01.2006,
which is well within the period of limitation. The dispute is that at the time when the appeal was
filed, originally, the respondents have not paid the required court-fees, but, in fact, paid a meagre
sum of Rs.10/-. It is also not in dispute that the appeal papers were returned and subsequently
they were represented on 25.04.2006 and again the papers were returned and represented on
28.06.2006, which are all well within the time granted by the Court for compliance of the defects.
It is also not much in dispute that in respect of another appeal filed by the respondents in
A.S.No.26 of 2006 against the same common judgment, the appeal was filed in the same manner
and the petitioner has not chosen to raise any objection. It is true that merely because the
petitioner has not raised objection in the other appeal arising from and out of the same common
judgment, the petitioner cannot be said to be barred from raising objection in this appeal, if it is a
legal issue, for there cannot be an estoppel against the statute.
10. The question to be considered in this case is as to whether it is mandatory on the part
of the respondents to file an application under Section 149 of Code of Civil Procedure. The
judgments relied upon by the learned counsel for the petitioner are all relating to filing of suits at
the first instance. While dealing with the issue of representation of plaint returned by the Court,
on payment of deficit court-fee without filing an application under Section 149 of Code of Civil
Procedure, this Court has held that the mere representation of papers is not sufficient and a
specific application needs to be filed under Section 149 of Code of Civil Procedure. Section 149
of Code of Civil Procedure gives discretion to the Court to allow a party to pay any amount of
court-fees at any stage and when such court-fees is paid as per the direction of the Court, the
court fees is deemed to have been paid at the first instance. The section states as follows:
“Section 149. Power to make up deficiency of court-fees:—
“Where the whole or any part of any fee prescribed for any document by the law for
the time being in force relating to court-fees has not been paid, the Court may, in its
discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole
or part, as the case may be, of such court-fee; and upon such payment the document, in
respect of which such fee is payable shall have the same force and effect as if such fee
had been paid in the first instance.”
11. In K.Natarajan v. P.K.Rajasekaran, 2003 (2) MLJ 305, a Division Bench of this
Court while dealing with the power of the Court in extending time under Section 149 of Code of
Civil Procedure, has held that Section 149 of Code of Civil Procedure is really in the form of
Proviso to Section 4 of the Tamil Nadu Court-fees and Suits Valuation Act, 1955. The Division
Bench, while clarifying the legal position, has laid down the procedure to be followed by the
Civil Court, as follows:
“21. We deem it necessary to clarify the legal position and lay down the procedure to
be followed as under:
(1) Section 149 of Code of Civil Procedure is a proviso to Section 4 of the Tamil
Nadu Court-fees and Suits Valuation Act,1955.
(2) The word ‘document’ employed in Section 149 of Code of Civil Procedure
would include plaint also.
(3) Whenever a plaint is received, the same shall be verified and if found to be not in
order, the same shall be returned at least on the third day (excluding the date of
presentation so also the intervening holidays).
(4) If the suit is presented on the last date of limitation affixing less court-fee,
than the one mentioned in the details of valuation in the plaint, an affidavit
shall be filed by the plaintiff giving reasons for not paying the requisite court-fee.
(5) In such cases, the Court shall before exercising its discretion and granting time to
pay the deficit court-fee, shall order notice to the defendants and consider their
objections, if any. However, such notice is not necessary in cases where the
plaintiff has paid almost the entirety of the requisite court-fee and the Court is
satisfied on affidavit by the party that the mistake happened due to some bona
fide reasons such as calculation mistake or the alike.
(6) The discretion referred to in Section 149 of Code of Civil Procedure is a judicial
discretion and the same has to be exercised in accordance with the well
established principles of law.
(7) But however, in cases where the time granted to pay the deficit court-fee falls
within the period of limitation, the defendant need not be heard.
(7-A) In case where the plaint is presented well within the period of
limitation with deficit court-fee and the Court returns the plaint to rectify the
defect giving some time (2 or 3 weeks), which also falls within the period of
limitation, but the plaint is re-represented paying deficit court-fee after the period
of limitation, the Court is bound to hear the defendant, notwithstanding the fact
that the plaintiff has paid substantial court-fee (not almost entirety) at the first
instance, before condoning the delay in paying the deficit court-fee.
(8) In cases where part of the time granted to pay the deficit court-fee falls outside
the period of limitation and the deficit court-fee is paid within the time of
limitation (i.e., the plaint is re-presented with requisite court-fee), the Court need
not wait for the objections of the defendant and the plaint can be straightaway
numbered.
(9) The Court should exercise its judicial discretion while considering as to
whether time should be granted or not. Cases where the plaintiff wrongly (bona
fide mistake) valued under particular provisions of law under Court-Fee Act or
where he could not pay the required court-fee for the reasons beyond his control,
due to some bona fide reasons, the Court shall condone the delay. Payment of
substantial court-fee is a circumstance, which will go in favour of the claim of
the plaintiff that a bona fide mistake has crept in.
But however, in cases where the plaintiff acted wilfully to harass the defendant
(like wilful negligence in payment court-fee, awaiting the result of some other
litigation, expecting compromise, etc.).
 (10) If the Court had exercised its discretion without issuing notice, then it is open to
the defendant to file application under Section 151 of Code of Civil Procedure
for proper relief. It will be open to the defendant to file a revision under Article
227 of Constitution of India. That apart, objection can also be raised at the trial
or even at the appellate stage, since the failure to exercise judicial discretion
in a manner known to law (as laid down in various decisions of the Supreme
Court) amounts to Court applying a wrong provision of law.”
12. That was a case relating to the filing of a suit for recovery of an amount of Rs.35,000/-
and while filing the plaint the plaintiff paid a court-fee of Re.1/- and the plaint was returned
granting 15 days time to enable the plaintiff to affix the necessary court-fees and the same was
not represented in time and therefore, the issue of limitation was raised by the defendant. It
was in those circumstances, by relying upon Section 4 of the Tamil Nadu Court-fees and Suits
Valuation Act, 1955, the Division Bench has held that since the plaint is to be treated as a
document, unless the fees prescribed is paid as per the valuation, the same cannot be filed. By
referring the said Section 4 of the Tamil Nadu Court-fees and Suits Valuation Act,1955, along
with the discretion of the Court under Section 149 of Code of Civil Procedure, the Division
Bench has held that the discretion vested with the Court has to be exercised judiciously and
also issued the above said guidelines.
13. In S.V.Arjunaraja v. P.Vasantha, 2005 (5) CTC 401, while dealing with an
application filed by the defendant under Order VII, Rule 11(c) of Code of Civil Procedure to
reject the plaint on the basis that the plaint was insufficiently stamped, it was held that in the
absence of a specific application under Section 149 of Code of Civil Procedure and order passed
by the Court granting extension of time for payment of court-fee, the suit was liable to be
rejected, by following the judgment of the Andhra Pradesh High Court in S.A.Khadeer v.
G.V.R.Anjaneyulu, 2003 (4) CLJ 917, wherein it was also held that the mechanical return of the
plaint and representation cannot amount to extending the time for payment of deficit court-
fees, in order to save the period of limitation if the court-fee paid after the period of limitation
prescribed is lapsed.
14. Again, in P.M.Gopalasamy v. C.Senpagam, 2007 (5) CTC 283, and in V.N.
Subramaniyam v. A.Nawab John and 5 others, 2007 (3) CTC 144, this Court has dealt with the
suits filed without appropriate court-fees and held that the application filed under Section 149 of
Code of Civil Procedure has to be dealt with judiciously, by relying upon various judgments
in that regard. At this juncture, it is relevant to point out that the Supreme Court in Buta Singh v.
Union of India, AIR 1995 SC 1945, has held that Section 149 of Code of Civil Procedure could
be taken only when the party was not able to pay the court-fee in the circumstances beyond
control or under unavoidable circumstances and the Court would be justified in appropriate cases
to exercise the discretionary powers under Section 149 of Code of Civil Procedure. That was a
case where an appeal was filed by the claimants under the land acquisition proceedings. After
the arguments were heard and judgment was reserved, but before the judgment was pronounced,
an application was filed to pay more court-fees and some applications were filed after the
pronouncement of the judgment seeking permission to pay deficit court-fees towards
enhanced compensation. It was in that context, the Supreme Court has held that there was no
bona fide on the part of the claimants in coming forward with an application under Section 149 of
Code of Civil Procedure for extension of time for payment of court-fees.
15. While dealing with the power of the High Court under Section 115 of Code of Civil
Procedure exercising revisional jurisdiction, in Amirthavalli and others v. Visalatchi Ammal and
others, 2002 (3) LW 687, K.Sampath,J. has held that when justice has been done by the Court
below, the jurisdiction under Section 115 should not be exercised, by relying upon an earlier
judgment in Cheenichi @ Parikkal v. D.A.Srinivasan Chettiar, 83 LW 866 : 1970 (1) MLJ 234.
The learned Judge has, in fact, reproduced the wordings found in the judgment in the above said
case, which reads as under:
“18. In Cheenichi @ Parikkal v. D.A.Srinivasan Chettiar, 83 LW 866 : 1970 (1) MLJ
234, it has been held as follows:
“The exercise of the revisional powers of the High Court under Section 115 of the Code
of Civil Procedure, is purely discretionary. The High Court will not take a technical view
and necessarily interfere in every case, where an order is wrong and even improper, if
such interference will produce hardship or injustice. The revisional jurisdiction of the
Court is intended to secure and subserve the ends of justice and not to deny or defeat it. If
interference in a particular case will result in hardship or injustice to a party, the High
Court will be justified in refusing to interfere in the exercise of its revisional jurisdiction,
even if the order is found to be one without jurisdiction. “
16. In a similar situation, Srinivasan,J. in Gnanambal v. Perumal Pillai and another, 1992
MLJ 60, has held that if, in the interest of justice, the Court below has passed an order, the
High Court can refuse to interfere under Section 115 of Code of Civil Procedure. The relevant
portion of the judgment reads as under:
“8. In any event, I am of the view that on the facts of this case, justice has been
rendered to the decree-holder. It is seen that the judgment debtor has kept the
decree-holder in abeyance for nearly 21 years by now and prevented him from
executing the decree. In such circumstances, I refuse to exercise my discretionary
power under Section 115, C.P.C. a bench of this Court has held in S.N.Kuha v.
P.P.I.Vaithyanathan, 1988 T.L.N.J. 1, that if the order of the Court below is in
the interest of Justice, this Court can refuse to interfere under Section 115, C.P.C.
even if the Court below had no jurisdiction to pass such an order. Applying that
principle I hold in this case that the order of the Court below does not warrant
any interference as justice has been done to the decree-holder.”
17. In Mohammad Mahibulla and another v. Seth Chaman Lal (dead) by L.Rs. and others,
(AIR 1993 SC 1241), the Supreme Court, while dealing with the memorandum of appeal filed by
a party not sufficiently stamped due to his negligence, which has resulted in the rejection of the
appeal, has held that before dismissing the appeal, an opportunity should have been given to the
appellant by the Court to make good the balance court-fee within a time to be indicated, and if
within the time stipulated the compliance was not made, it is open to the appellate Court to
dismiss the appeal. In that case, the Supreme Court has dealt with Section 149 of Code of Civil
Procedure also. The operative portion of the judgment is as follows:
“5. Reading these two provisions together and keeping fairness of procedure in
view, we are inclined to agree with the counsel for the appellant that when the
lower Appellate Court came to hold that the memorandum of appeal had not been
sufficiently stamped, an opportunity should have been given by the Court to the
appellant to make good the balance court-fee within a time to be indicated and if
there was failure to comply with the direction of the Court, the memorandum of
appeal could have been dismissed. This opportunity having not been given,
we are of the view that the dismissal of the appeal was not appropriate.”
18. The present application filed by the revision petitioner is under Order XLI, Rule 3 of
Code of Civil Procedure, which relates to rejection or amendment of memorandum, which reads
as under:
“Order XLI Rule 3. Rejection or amendment of memorandum.—
 (1) When the memorandum of appeal is not drawn up in the manner hereinbefore
prescribed, it may be rejected, or be returned to the appellant for the purpose of
being amended within a time to be fixed by the Court or be amended then and
there.
(2) Where the Court rejects any memorandum, it shall record the reasons for such
rejection.
(3) Where a memorandum of appeal is amended, the Judge, or such officer as he
appoints in this behalf, shall sign or initial the amendment.”
19. On the other hand, Order VII, Rule 11, CPC dealing with rejection of plaint runs
as follows:
“Order VII, Rule 11, CPC.
11. Rejection of Plaint.—The plaint shall be rejected in the following cases:
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is undervalued, and the plaintiff, on being required by
the Court to correct the valuation within a time to be fixed by the Court, fails to
do so;
(c) Where the relief claimed is properly valued, but the plaint is written on the paper
insufficiently stamped, and the plaintiff does not make good the deficiency
within the time, if any, granted by the Court;
(d) Where the suit appears from the statement in the plaint to be barred by any law;
(e) Where it is not filed in duplicate.
(f) Where the plaintiff fails to comply with the provisions of Rule (9).
[Provided that the time fixed by the Court for correction of the valuation or supplying of
the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is
satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting
the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed
by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.]
20. The cases which are relied upon by the learned counsel for the petitioner are relating to
the deficit court fee not paid on the plaint and therefore, it can be a ground for rejecting the plaint
under Order VII, Rule 11 of Code of Civil Procedure, in the absence of an application filed under
Section 149 of Code of Civil Procedure.
21. On the other hand, the rejection of the memorandum of appeal cannot be made on the
same grounds available under Order VII, Rule 11 of Code of Civil Procedure. In fact, there is a
provision enabling the appellate Court to condone the delay in filing appeal also. Such a power
is not available to the trial Court under Order VII of Code of Civil Procedure. In such
circumstances, considering the fact that on the second representation of appeal, the deficit
court fees has been paid and the first appellate Court, taking into consideration that from the same
common judgment another appeal has been filed in A.S.No.26 of 2006 and in the interest of
justice, has come to the conclusion that the respondents must be given an opportunity to present
their appeal. The appellate Court has also taken note of the fact that within the time given by the
Court, the court-fees has been paid. In these circumstances, while exercising jurisdiction under
Section 115 of the Code of Civil Procedure, I am of the considered view that in the interest of
justice the appeal filed by the respondents must be taken on file, especially when another appeal
arising from the same common judgment of the trial Court has been taken to file which was filed
in the same manner, which was not objected to by the revision petitioner herein. By applying the
judgment in Gnanambal v. Perumal Pillai and another, 1992 MLJ 60, and Cheenichi @ Parikkal
v. D.A.Srinivasan Chettiar, 83 LW 866 : 1970 (1) MLJ 234, I am of the considered view that the
first appellate Court has rightly rejected the application filed by the revision petitioner and
therefore, it is not proper for this Court to interfere under Section 115 of Code of Civil Procedure.
In view of the same, the revision fails and the same is dismissed. No costs.
In view of dismissal of main revision, connected miscellaneous petition is closed.
Revision dismissed.

[2008 (1) T.N.C.J. 704 (Mad)]

MADRAS HIGH COURT
BEFORE:
A.C. ARUMUGAPERUMAL ADITYAN, J.
SARDHAR SHERIFF ...Petitioner
Versus
K. LAKSHUMANAPERUMAL ...Respondent
[Civil Revision Petition (NPD) No. 3482 of 2007 and M.P.No. 1 of 2007, decided on 5 th
December, 2007]
Civil Procedure Code, 1908—Section 115 and Order IX, Rule 13—Limitation Act,
1963—Section 5—Delay of 361 days—In filing a petition to set aside ex parte decree—
Application for condonation of—Dismissed—Legality of—Suit for specific performance of a
contract—Decreed ex parte knowledge gained only through neighbours—Counsel
consulted, who advised to file petition to set aside ex parte decree—Whether service of
summons was effected properly or not is a matter to be decided in the petition to set
aside the ex parte decree—In the interest of justice an opportunity must be given to the
revisionist to prove the case—Impugned order set aside—Delay of 361 days condoned—
Court below directed to decide the application to set aside ex parte decree in accordance
with law. (Paras 3 to 6)
Counsel.—Mr. V.M.R. Rajendran, Advocate, for the petitioner; Mr. N. Umapathy,
Advocate, for the respondent.
JUDGMENT
A.C. ARUMUGAPERUMAL ADITYAN, J.—Heard the learned counsel appearing for the
revision petitioner as well as the respondent. The application I.A.No.207 of 2007 in
O.S.No.125 of 2005 filed under Section 5 of the Limitation Act to condone the delay of 361 days
in filing a petition to set aside the ex parte decree dated 20.8.2006 in O.S.No.125 of 2005,
was dismissed, which necessitated the petitioner in I.A.No.207 of 2007 to prefer this revision.
2. The suit O.S.No.125 of 2005 was filed by the plaintiff/respondent herein for specific
performance of a contract entered into between the plaintiff and the defendant dated 20.2.2005.
According to the petitioner, he came to know about the ex parte decree only through his
neighbours and after that he met his counsel, who advised him to file a petition to set aside the ex
parte decree and by that time there was a delay of 361 days in preferring the petition to set aside
the ex parte decree.
3. The learned counsel for the revision petitioner would contend that there was no proper
service of summon on the defendant in O.S.No.125 of 2005. Along with the typed set of papers
the learned counsel has produced a certified copy of the summon said to have been served on
the defendant. A perusal of the endorsement in the returned summon (certified copy), will go to
show that since the defendant has refused to receive the same it was served by way of affixture on
the front door of the house of the defendant. The learned counsel for the revision petitioner
would point out that no independent witness’s signature was obtained for the service of summons
by way of affixture and that only the plaintiff has signed as a witness for the service by affixture
and the process-server, who had served the summons was in handglove with the plaintiff in
making a false endorsement as to the effect that the summons has been served by way of
affixture, and that is why the process-server has not obtained the signature of a third person as a
witness for the service of summons.
4. Under such circumstances, I am of the view that an opportunity must be given to the
revision petitioner to prove his case. Whether the service of summons was effected properly or
not is a matter to be decided in the petition to set aside the ex parte decree.
5. The learned counsel for the respondent would contend that there are two EPs viz.
REP.No.303 of 2005 and REP.No.76 of 2007 pending against the revision petitioner. The
pendency of two other EPs against the revision petitioner is not a ground to dismiss this civil
revision petition. The point to be decided in this civil revision petition is whether there is any
substantial ground to allow the Section 5 application.
6. In fine, the civil revision petition is allowed and the order passed in I.A.No.207 of 2007
in O.S.No.125 of 2005 on the file of the learned Principal Sub-Judge, Salem, is set aside, thereby
the delay of 361 days (subsequently corrected as 356 days) is condoned. The learned trial Judge
is directed to number the petition filed to set aside the ex parte decree and dispose of the same on
merits after giving opportunity to both sides to let in evidence, within a period of one month from
the date of receipt of copy of this order. No costs. Connected Miscellaneous Petition is closed.
Revision allowed.

[2008 (1) T.N.C.J. 706 (Mad)]

MADRAS HIGH COURT
BEFORE:
A.C. ARUMUGAPERUMAL ADITYAN, J.
K. DEVENDRAN ...Petitioner
Versus
K.P. MADHAVAN ...Respondent
[Civil Revision Petition (NPD) No. 3224 of 2007 and M.P.No. 2 of 2007, decided on 11 th
December, 2007]
Civil Procedure Code, 1908—Order XXXVII, Rule 3 (5)— Summary suit—
Application seeking unconditional leave to defend the suit by way of filing written statement
—Refusal to grant leave—Legality of—Agent having power of attorney to sell lands,
negotiated with third party for the sale of the land and had issued a cheque for Rs.
3,27,500/- only an advance amount towards the sale of property, it cannot be said that
under the impugned cheque the defendant had borrowed a sum of Rs. 3,27,500/- —
Triable issues in the suit—An opportunity must be given to defend his case—Order
impugned set aside —Revision allowed—Defendant granted leave to defend the suit by way
of filing written statement in suit within one month—Trial Judge to dispose of the
suit within three months in accordance with law after framing necessary issues.
(Paras 3, 5 and 6)
Case law.—2007 (4) CTC 257.
Counsel.—Mr. V. Annadurai, Advocate, for the petitioner; Mr. M. Devendran, Advocate,
for the respondent.
 JUDGMENT
A.C. ARUMUGAPERUMAL ADITYAN, J.—The order passed in I.A.No.9107 of 2007 in
O.S.No.1988 of 2007, a petition filed under Order XXXVII, Rule 3(5) of CPC on the file of the
XIIth Assistant Judge, City Civil Court, Chennai, is under challenge in this revision. The
defendant in O.S.No.1988 of 2007 had filed the said application seeking unconditional leave to
the petitioner/defendant to defend the summary suit by way of filing written statement in
O.S.No.1988 of 2007.
2. Heard the learned counsel appearing for the revision petitioner and the learned counsel
appearing for the respondent and considered their respective submissions.
3. According to the learned counsel for the revision petitioner, the defendant has not
borrowed any amount under the impugned cheque dated 20.2.2006 for Rs.3,27,500/-. According
to him, he was appointed by the plaintiff as a power of attorney agent to sell his lands and that on
the basis of the power of attorney the defendant had negotiated with third party for the sale of the
said land and had issued a cheque dated 20.2.2006 for Rs.3,27,500/-. But, he had not borrowed
any amount under the impugned cheque dated 20.2.2006. Even in paragraph 8 to the plaint,
the plaintiff has stated that the defendant is liable to render accounts in respect of the sale
transaction entered into between the third parties and the defendant on behalf of the plaintiff
under the deed of power of attorney.
4. Relying on 2007(4) CTC 257 (Jyotsna K.Valia v. T.S. Parekh & Co.), the learned
counsel for the revision petitioner would contend that the suit itself is not maintainable under
Order XXXVII since the suit was not filed for recovery of the amount due under the impugned
cheque or bill of exchange. The relevant observation in the said judgment runs as follows:
“Reference may now be made to a judgment on honoured cheque, in the case of Purnima
Jaitly v. Ravi Bansi Jaisingh, 2004(1) Mh.LJ 114. In that case, it was contended that a
suit for recovery of loan which was advanced by a plaintiff by a cheque, would be a suit
based on a bill of exchange. Negating the said contention, the Court held that:—
“It is true that a cheque is a bill of exchange, a special type of bill of exchange which is
drawn on a bank. However, a suit upon a cheque (bill of exchange) means a suit to
recover money due on a cheque (bill of exchange) drawn by the defendant, which is
dishonoured.”
In such a case, the suit must be for recovery of money on a cheque drawn in favour of or
endorsed to the plaintiff. A suit, however for recovery of a loan which was advanced by the
plaintiff by a cheque is not a suit upon a cheque or a bill of exchange and as such is not
maintainable as a summary suit. The contention of the plaintiff that the suit is upon a bill of
exchange was rejected.
The said principle will be applicable in all four corners to the present facts of the case.
Here also it is admitted by the plaintiff that the defendant has not borrowed any amount under the
impugned cheque dated 20.2.2006. Even in the reply notice issued by the defendant, the
defendant has raised a specific defence that since the original documents were produced by the
plaintiff he could not execute the sale deed on the basis of sale agreement entered into between
him as a power of attorney holder for the plaintiff with third party and that he is not liable to pay
any amount to the plaintiff and that the said cheque was drawn only as a security.
5. The learned trial Judge has also observed in his order that the respondent has
specifically alleged that the amount for which the cheque was drawn was only an advance amount
towards the sale of the proeprty and that this fact was also not denied by the petitioner. So having
come to a conclusion that the amount for which the impugned cheque was drawn was only an
advance of sale consideration, it cannot be said that under the impugned cheque Ex.R.2, the
defendant had borrowed a sum of Rs.3,27,500/-. Under such circumstance, I am of the view that
there are triable issues in the suit and an opportunity must be given to the plaintiff to defend
his case.
6. In fine, the civil revision petition is allowed and the order passed in I.A.No.9107 of
2007 in O.S.No.1988 of 2007 on the file of the XII Assistant Judge, City Civil Court, Chennai, is
set aside and the defendant is granted leave to defend the suit by way of filing written statement
in O.S.No.1988 of 2007 within one month from today. After framing necessary issues, the
learned trial Judge is directed to dispose of the case within three months from thereafter in
accordance with law. No costs. Connected miscellaneous petition is closed.
Revision allowed.

[2008 (1) T.N.C.J. 709 (Mad)]

MADRAS HIGH COURT
BEFORE:
A.C. ARUMUGAPERUMAL ADITYAN, J.
TAMIL NADU WAKF BOARD REP. BY ITS SECRETARY ...Petitioner
Versus
HAKKIM M. MOHAMED MOIDEEN AND OTHERS ...Respondents
[Civil Revision Petition (NPD) No. 2658 of 2007 and M.P.Nos 1 and 2 of 2007, decided on 10 th
December, 2007]
Constitution of India, 1950—Article 227—Title to property—Which has already been
dedicated under wakf deed—Once dedication has been made to God under wakf deed,
thereafter under no circumstances it can be revoked—Decreeing the suit merely basing on
the entries in the revenue records is perverse and erroneous—Unsustainable—
Interference warranted—Revision allowed—Decree set aside—Suit dismissed—Wakf
Board directed to take immediate steps to publish in the gazette the subject- matter under
Section 5 of the Wakf Act, 1954. (Paras 15 and 16)
Case law.—AIR 1979 SC 289; AIR 1939 Nag 205; AIR 1998 SC 972; AIR 2002 SC 402;
AIR 1970 SC 1035; AIR 1975 SC 1891; 1997 (2) MLJ 77 (SC); 2007 (2) CTC 830.
Counsel.—Mr. Hassan Mohammed Jinnah, Advocate, for the petitioner; Mrs. Hema
Sampath, Senior Counsel for Mrs. R. Meena (for R1 and R2), Mrs. R. Revathi, Government
Advocate (for R3), for the respondents.
Important Point
Once a dedication has been made to God under wakf deed, thereafter under no
circumstance it can be revoked.
JUDGMENT
A.C. ARUMUGAPERUMAL ADITYAN, J.—The Judgment in O.S.No.67 of 2005 on the file
of the Principal Subordinate Judge, Cuddalore, is under challenge in this revision. This
revision has been preferred by the 1st defendant, Wakf Board.
2. The respondents 1 and 2 / plaintiff in O.S.No.67 of 2005 have filed the suit for a
declaration that the suit property exclusively belonged to the first plaintiff. According to the 1st
plaintiff, his father had executed a deed of wakf dated 10.12.1936 for the purpose of
constructing a Madarassa. According to him, the Madarassa was not constructed during his
father’s life time and the dedication has been completely failed and the object of the deed of wakf
dated 10.12.1936 executed under Ex.A.1 was not materialized. So the 1st plaintiff would claim
that the property does not vest with the wakf. It is further been admitted that the first plaintiff’s
father had also executed Ex.A.2, another deed of wakf, dated 1.4.1941 dedicating all other
properties except the property covered under Ex.A.1 for the purpose of creating another wakf.
The fact remains that the property already dedicated by the first plaintiff’s father under Ex.A.1
deed of Wakf dated 10.12.1936, was excluded in Ex.A.2 deed of wakf. According to the 1st
plaintiff, in the revenue records the plaint schedule property is described as the personal property
of the first plaintiff and that the first defendant wakf Board has failed to notify this property
in the Government Gazette as the wakf property and that the suit property does not find a place in
the register maintained for the wakf property with the first defendant Wakf Board (revision
Petitioner herein). Hence, according to the first plaintiff, he had entered into an agreement with
the second plaintiff on 27.10.2001 in respect of the property covered under Ex.A.1 dated
10.12.1936 for sale. Now, with the help of the second defendant, the first defendant is restraining
the first plaintiff from executing a sale deed in respect of the plaint schedule property in favour
of the second plaintiff. Hence, the suit for declaration that the suit property is exclusively
belonged to the first plaintiff and also for consequential permanent injunction restraining the
first defendant (Wakf Board) from any manner interfering with the first plaintiff from dealing
with the property.
3. The first defendant has resisted the suit as the same is not maintainable and that the
first defendant has not abandoned the idea of constructing the Madarassa as directed in Ex.A.1
deed of wakf. Once the property is endowed in favour of wakf it will assume the character of
wakf property and that after the dedication, the plaintiffs cannot interfere in the same and that the
Muthawalli cannot claim any independent right in respect of the wakf property and he is estopped
from claiming as such and the plaintiff has no semblance of right or interest in the property.
Once the property has become wakf property it cannot be characterized as personal property of
the first plaintiff. Once the property has been dedicated as the wakf property, thereafter the
first plaintiff cannot claim right in respect of the said property on the basis of the entries made in
the revenue records as personal property. The ex parte decree passed in O.S.No.42 of 2001 has
been set aside and on finding that the plaintiffs cannot proceed with O.S.No.42 of 2001, has filed
this suit after not pressing the order suit. The plaintiffs are estopped from re-agitating the same
once again. The suit is barred by res judicata.
4. The learned trial Judge had framed six issues. The first plaintiff has examined himself
as P.W.1 and also examined one Malimar as P.W.2. On the side of the defendants, D.W.1 to
D.W.3 were examined. Ex.A.1 to Ex.A.17 were marked on the side of the plaintiffs and Ex.B.1
to Ex.B.9 were examined on the side of the defendants. After going through the oral and
documentary evidence, the learned trial Judge has decreed the suit. Aggrieved by the findings of
the learned Trial Judge, the first defendant Wakf Board has preferred this revision.
5. Heard Mr.Hassan Mohammed Jinnah, the learned counsel appearing for the revision
petitioner and Mrs.Hema Sampath, the learned senior counsel appearing for R1 and R2 and
Mrs.R.Revathi, the learned Government Advocate appearing for R3 and considered their
respective submissions.
6. According to the learned senior counsel appearing for the respondents 1 and 2, as
per Section 5 of the Wakf Act, there was no publication made in respect of the property dedicated
under Ex.A.1, deed of wakf executed by the first plaintiff’s father dated 10.12.1936 and hence,
she would contend that the property dedicated under Ex.A.1 will not take effect and it will revert
back to the person, who had dedicated the same in favour of the wakf and since his father is not
now alive, as the son, the first plaintiff is entitled to claim right in respect of the property
dedicated under Ex.A.1 and that the first plaintiff can deal with the property dedicated under
Ex.A.1, as his personal property. The learned senior counsel would also state that the revenue
records also stand in the name of the first plaintiff under Ex.A.7 to Ex.A.17 in respect of the suit
property.
 7. Section 5 of the Wakf Act reads as follows:—
Publication of list of wakfs.—
(1) On receipt of a report under sub-section (3) of Section 4, the State Government
shall forward a copy of the same to the Board.
(2) The Board shall examine the report forwarded to it under sub-section (1) and
publish in the official Gasette a list of wakfs or Shia wakfs in the State, whether
in existence at the commencement of this Act or coming into existence thereafter,
to which the report relates and containing such other particulars as may be
prescribd.
If there is any dispute arose between the person who dedicated the property to the wakf
and the Wakf Board then as per Section 6 of the Wakf Act within one year from the date of
publication of the list by the Wakf Board, the aggrieved party can agitate the same by way of a
suit. But nowhere in the Act, any specific time is prescribed for publication of the property so
dedicated in favour of the wakf.
8. The learned senior counsel relying on AIR 1979 SC 289 (The Board of Muslim Wakfs,
Rajasthan v. Radha Kishan and others), would contend that the first plaintiff is having cause of
action to file the suit since the Tamil Nadu Wakf Board has not published the list including the
suit property as contemplated under Section 5 of the Wakf Act. The short facts of the said case
runs as follows:—
“The subject-matter in disptue is a two-storeyed building, known as Dharamshala or
Musafirkhana, situate on Misra Ismail Road at Jaipur. The building was constructed by
the late Haji Mohammad Ali Khan, a Sessions Judge of the erstwhile Princely State of
Jaipur. He had executed two Wills one on 17th February, 1910 and the other on 1st July,
1911, dedicating his properties to the wakf for its use as a dharmashala and appointed his
one of the sons as its Mutawalli. After his death, there was a partition of his property by
his sons. They filed a suit O.S.No.128 of 1930 for partition and the above said property
dedicated to the wakf was left out in the said suit for partition being the wakf property.
Subsequently, Muthawalli mortgaged the property with the father of R2 and father of
R1 for a sum of Rs.7,999/- and a mortgage deed dated July, 30, 1944 in their favour for
the purpose of purchasing a strip of land in front of the building of the Municipal
Council, Jaipur and thereafter constructed verandahs on the ground floor and the first
floor. The Wakf Act, 1954 was extended to the State of Rajasthan on February 1, 1955
and the Government had appointed a Commissioner of Wakfs for the purpose of making
survey of the wakf properties and it was brought to the notice of the Commissioner that
the property dedicated to the wakf has been mortgaged by the Muthawalli and a notice
was given to the Mutawalli by the Commissioner of Wakfs. It was contended that the
Commissioner of Wakf had no jurisdiction to make an enquiry as to whether a particular
property is Wakf property or not. The Commissioner of Wakfs by his order dated
19.9.1962 overruled the objection, which resulted in a writ petition before the High
Court, which also dismissed in limine observing that the Commissioner had obviously no
jurisdiction to decide any question relating to the title of the respondents or to eject them
from the property without taking recourse to a civil suit.”
The defence taken by the Muthawalli in the proceedings taken by the Commissioner of
Wakfs was that the Wills executed by their father was cancelled in a suit. But the Commissioner
of Wakfs on the basis of evidence led before him, held that the disputed property to be wakf
property. Several provision of Wakf Act has been questioned before the Honourable Apex Court,
which ultimately seized the matter in appeal. It has been observed by the Honourable Apex Court
in that judgment referring a Judgement in AIR 1939 Nag 205 as follows:—
 “Considering the terms of the enactment and the scope and purpose of the Act it is
clear that the Legislature intended to secure merely a record of the extent of income of
wakf properties for the purpose of providing some control on the management of
properties which are admittedly wakf. It could not have intended to include in its scope
the enquiry into the vital questions whether the disputed property is wakf property and
the person in possession of it is a Muthawalli, which are questions of fundamental
character such as could be the subject-matter of a suit alone.
The questions that fall for determination upon the appeal are two; first, whether a
Commissioner of Wakfs appointed under sub-section (1) of Section 4 of the Wakf Act,
1954, has the jurisdiction under sub-section (3) of Section 4 to enquire whether a certain
property is wakf property or not when such a dispute is raised by a stranger to the wakf
and second, if so, whether the failure of such a person to institute a suit in a Civil Court
of competent jurisdiction for decision of such question within a period of one year, as
provided for under sub-section (1) of Section 6, makes the inclusion of such property in
the list of wakfs published by the Board under sub-section (2) of Section 5 of the Act
final and conclusive under sub-section (4) of Section 6.”
So, from the facts it is clear that in the above said case the property dedicated to the wakf
has been published as per Section 5 of the Wakf Act and a person aggrieved can seek redresal
before the competent Court within one year from the date of publication, but cannot raise his
little finger thereafter is the dictum laid down in the above said case. That is not the case herein.
Ex.X.2-letter written by the Tamil Nadu Wakf Board to the second plaintiff, will clearly go to
show that under the Right of Information Act, the Board has informed that the suit property i.e.,
R.S.No.46/4 measuring 5 acres 22 cents has been registered with the Tamil Nadu Wakf Board as
required under Section 36 of the Wakf Act, 1995 and that the notification in official Gazette is yet
to be made. As I have already observed, there is no prescribed time in the Wakf Act for
notification under Section 5 of the Wakf Act, and it cannot be presumed that on that score the
dedication will revert back to the person who created the wakf.
9. The uncontroverted fact is that under Ex.A.1 deed of wakf dated 10.12.1936, the
dedication has been made by the father of the first plaintiff in favour of wakf. Under such
circumstance, the son, the first plaintiff, can not ask for the return of the same. For this
proposition of law, the learned counsel for the revision petitioner would rely on AIR 1998 SC
972 (Sayyed Ali and others v. Andhra Pradesh Wakf Board, Hyderabad and others). The
relevant observation in the said dictum for the purpose of deciding this revision runs as follows:
“Lastly, it was contended by the learned counsel for the appellant that once patta, under
the Inams Act, having been granted in favour of Mokhasadar, it was not open to the High
Court to hold that the property was a wakf property. In other words, the argument seems
to proceed on the basis that once patta has been granted under the Inams Act to
Mokhasadars, the land has ceased to be a wakf property. It may be stated that a wakf is a
permanent dedication of property for purposes recognized by Muslim law as pious,
religious or charitable and the property having been found as wakf would always retain
its character as a wakf. In other words, once a wakf always a wakf and the grant of patta
in favour of Mokhasadar under the Inams Act does not, in any manner, nullify the earlier
dedication made of the property constituting the same as wakf. After a wakf has been
created, it continues to be so far all time to come and further continues to be governed by
the provisions of the Wakf Act and a grant of patta in favour of Mokhasadar does not
affect the original character of the wakf property.”
So, I am of the view that once the wakf has been created under Ex.A.1, dated 10.12.1936,
the first plaintiff, who is the son of the executant of Ex.A.1— deed of wakf cannot claim
exclusive right in respect of the property dedicated under Ex.A.1 on the basis of the entries in the
revenue records.
10. The raitio in AIR 2002 SC 402 (Tamil Nadu Wakf Board v. Hathija Ammal) is not
applicable to the present facts of the case because the dictum in that ratio is that the Wakf Board
without publication of the notification as contemplated under Section 5(2) of the Wakf Act
cannot file the suit for declaration and possession. In the case on hand, the Wakf Board has not
filed any suit, but the plaintiff has filed the suit claiming that he is having right in respect of the
suit property which has already been dedicated by his father under Ex.A.1 to the wakf.
11. The ratio decidendi in AIR 1970 SC 1035 (Garib Das and others v. Munshi Abdul
Hamid and others), deals with the creation of wakf and that the facts stated therein are not
applicable to the present facts of the case.
12. In AIR 1975 SC 1891 (Punjab Wakf Board, Ambala Cantt.v. Capt. Mohar Singh and
others), the dictum is that in the absence of any document to show that the dedication of the
property to the wakf there cannot be a claim by the Wakf Board in respect of the property against
the person, who is in possession of the property.
13. The ratio decidendi in 1997(2) MLJ 77 (SC) (Mohammad v. Mohammed Beke), also
reiterates that there must be a creation of wakf by the founder and his intention to dedicate the
property must be declared for the wakf.
14. In Ex.A.1 deed of wakf, the intention has been clearly stated by the person, who
created the wakf as to the construction of the Madrassa, the property has been dedicated. The
ratio decidendi in 2007(2) CTC 830 (M.P.Wakf Board v. Subhan Shah (D) by LRs and others),
also deals with the nature of dedication of property and that it must be proved that such a property
became wakf by reason of long use. While dealing with the question of maintainability of the
suit it has been observed by the Honourable Apex Court as follows:—
“The property was dedicated to the Dargah, if any, a long time back. An application for
registration of the said proeprty as a wakf property in trems of Section 25 of the 1954
Act, therefore, could have been filed only within the period specified thereunder, viz.,
nine months from the date of coming into force of the said Act. Registration of wakfs
whether created before or after the commencement of the said Act is governed by
Section 25. A copy of the wakf deed was also required to be enclosed with such an
application. Sub-section (7) of Section 25 of the 1954 Act provides for making of an
inquiry into the correctness or otherwise of the contents of the said application.”
15. Now the first plaintiff is not questioning the validity of the deed of wakf created by his
late father under Ex.A.1. The first plaintiff is trying to execute a sale deed in respect of the suit
property which has already been dedicated by his father under Ex.A.1 wakf deed. I am of the
view that once a dedication has been made to God under Ex.A1 thereafter under no circumstance
it can be revoked. It is the settled proposition of law that in revision unless the findings of the
trial Court is shown as perverse, the Court sitting in revision cannot interfere with the same.
Basing on the entries in the revenue records, the learned trial Judge has carried away by the same,
had decreed the suit, which in my opinion is perverse and erroneous, requiring interference from
this Court.
16. In fine, the revision is allowed and the judgment in O.S.No.67 of 2005 on the file of
the Principal Subordinate Judge, Cuddalore, is dismissed. The first defendant/revision
petitioner (Wakf Board) shall take immediate steps within two months to publish in the Gazette
the subject-matter of the suit as contemplated under Section 5 of the Wakf Act. No costs.
Connected miscellaneous petitions are closed.
Revision allowed.
 [2008 (1) T.N.C.J. 716 (Mad)]
MADRAS HIGH COURT
BEFORE:
K. RAVIRAJA PANDIAN AND CHITRA VENKATARAMAN, JJ.
TAMIL NADU SMALL INDUSTRIES DEVELOPMENT
CORPORATION LTD. REP. BY ITS CHAIRMAN AND
MANAGING DIRECTOR ...Appellant
Versus
SATHYA CONSTRUCTIONS REP. BY
ITS PARTNER AND ANOTHER ...Respondents
[Original Side Appeal No. 259 of 2003, decided on 11 December, 2007]
th

Letters Patent Appeal—Clause 15—Civil Procedure Code, 1908—Order XXXVI,

Rule 1—Arbitration and Conciliation Act, 1996—Section 34—Award—Application to set
aside—Dismissed—Legality of—Awarding pendente lite interest—Matter within the
discretion the arbitrators—Merely because award itself was as claim of interest for delayed
payment, interest awarded on award amount till realization could not be said to be
unjustified—No case made out for interference in awarding interest except for the period in
respect of earnest money deposit and withheld amount—Appeal disposed of with
modification. (Paras 9 to 12)
Case law.—2007 (5) MLJ 257;1989 (1) ALT 195; 1999 (1) SCC 63; 1999 (4) Supreme
235.
Counsel.—Mr. B. Shantha Kumar, for the appellant; Mr. K. Kabir, for the respondent.
Important Point
Interest could be awarded by Arbitral Tribunal only in the absence of any specific
stipulation or prohibition in the contract and in the absence of an agreement by the parties to
contract. Awarding pendente lite interest is a matter within the discretion of the arbitrators.
JUDGMENT
K. RAVIRAJA PANDIAN, J.—The appellant - Tamilnadu Small Industries Development
Corporation Ltd., in this appeal assails the order of the learned single Judge dated 30.06.2003
dismissing the O.P. No.710 of 2002 filed under Section 34 of the Arbitration and Conciliation
Act, 1996 for setting aside the award of the arbitrator dated 24.05.2002.
2. The learned counsel for the appellant, questions the order of the learned single Judge on
the ground that the learned single Judge has not considered the issue that there was no dispute at
all. The basic principle that in order to be entitled to ask for arbitration, there must be not only
entitlement of money, but also the difference and the dispute arising between the parties exist.
The appellant admitted that the final bill has not been settled in favour of the respondent. In such
circumstances, the reference itself is bad in law. He further contended that the award of interest
by the arbitrator, when there is a prohibitory clause in the agreement, cannot be legally sustained
and the learned single Judge has totally lost sight of the prohibitory clause in the agreement.
On these two grounds, the learned counsel sought to assail the order. He also referred to the
provisions of Sections 28(3) and 31(7)(a) of the Act, 1996 and relied on a Division Bench
Judgment of this Court in the case of Sri Kamatchi Amman Constructions v. Divisional Railway
Manager/Works, (2007) 5 MLJ 257.
3. On the other hand, the learned counsel appearing for the respondent argued for
sustaining the order of the learned single Judge.
 4. We heard the arguments of the learned counsel on either side and perused the materials
available on record.
5. The material facts culminated in the filing of the above appeal are as follows :
The first respondent entered into contract for construction of 73 numbers of staff quarters
at Thiru Vi.Ka. Industrial Estate at Guindy on 07.12.1995. On the same day the work order was
issued. The period for completion of the contract was for four months from the date of handing
over of the site. There was delay in handing over of the site and the work was completed on
30.09.1996. The respondent filed the final bill for settlement. In spite of the passage of time, the
bill was not settled. Hence, the respondent approached this Court to refer the matter for
arbitration for resolving the dispute between the parties regarding settlement of bills under
Section 11 (6) of the Act. This Court, by order dated 26.02.1999 referred the matter to be
resolved by an arbitrator.
6. Before the arbitrator, the respondent claimed a sum of Rs.36,62,838/- on various heads.
The arbitrator by his award dated 24.05.2002 made an award in a sum of Rs.7,60,104/- and
interest over it in a sum of Rs.4,10,456/- totalling a sum of Rs.11,70,560/- with further interest @
18% per annum on Rs.7,60,104/- from 01.07.1999 till the date of realisation. The appellant,
aggrieved by the award made by the arbitrator, filed O.P. No.710 of 2002 under Section 34 of
the Act to set aside the award. The learned single Judge, by the impugned order, dismissed the
original petition on 30.06.2003. Hence, the present appeal.
7. The law in the arbitration proceedings has been now well settled that the award of the
arbitrator is ordinarily final and conclusive as long as arbitrator has acted within his authority and
according to the principles of fair play and the power of the Court to set aside the award is
restricted to the instances set out in Section 34 of the Act. As per Section 28(3) of the Act, in all
cases, the Arbitral Tribunal shall decide in accordance with the terms of the contract and
shall take into account the usage of the Trade applicable to the transaction. Where the
fundamental terms of agreement of the parties are ignored by the arbitrator, the arbitrator is
held to have exceeded his jurisdiction, even where the jurisdiction clause itself is widely worded.
It is not open to the Court to re-assess the evidence to find if the Arbitral Tribunal has
committed any error and re-assess the evidence as if it were a Court of appeal. Interest could be
awarded only in the absence of any specific stipulation or prohibition in the contract and in the
absence of an agreement by the parties to contract, Arbitral Tribunal may award interest and
Section 31(7)(a) underlines the discretion of the Arbitral Tribunal to award interest it deems
reasonable. Awarding pendente lite interest is a matter within the discretion of the arbitrators.
8. In respect of the first point, we are afraid, we cannot countenance the same as we are of
the view that the appellant did not make such a plea either before the arbitraor or before learned
single Judge for the obvious reason that at the instance of the respondent this Court by its order
dated 26.02.1999 referred the matter for arbitration. Hence, the first ground of attack deserves to
be rejected and the same is rejected.
9. In respect of the second ground of granting interest, clause 64 of the agreement read as
follows :
“Payment will be made to the contractor under the certificates to be issued at reasonably
frequent intervals by the Executive Engineer or the Sub Divisional Officer within 14
days of the date of each certificate and intermediate payment will be made by the
Executive Engineer or the Sub-Divisional Officer of a sum equal to 95 per cent of the
value of work as so certified and the balance of 5 per cent will be withheld and retained
as security for the due fulfilment of the contract.
Under the certificate to be issued by the Executive Engineer or Sub Divisional Officer on
the completion of the entire works, the contractor will receive the final payment by virtue
 of the contract except security deposit and the withheld amount equal to 2.5 per cent of
the total value of the work done provided is no recovery from or forfeiture by the
contractor to be made under clause 37. The amount withheld from the final bill will be
retained under ‘Deposits’ and paid to the contractor together with the security deposit
after six months reckoned from the date of completion of work or as soon after the
expiration of such period of six months as all defects shall have been made good
according to the true intent and the meaning thereof whichever shall last happen. In the
event the final bill remains unpaid even.
(emphasis supplied)
..............
64.1A
Notwithstanding the above clause, the withheld amount of 2.5 per cent from the final bill
in respect of contract for construction of original building will be retained by the
Government for a total period of two years in lieu of six months period referred to in
clause 64.1 (above) and will be released after the expiry to two years’ period on
execution of an indemnity bond by the contractor to the satisfaction of the Executive
Engineer for a further period of three years to ensure structural stability of the building
under clause 26.1.A. (emphasis supplied)”
Clause 65 needs to be referred in this case which read as :
“65.1 No omission by the Executive Engineer or the Sub- Divisional officer to pay
the amount due upon certificates shall vitiate or make void the contract, nor shall
the contractor be entitled to interest upon any guarantee found or payments in
arrear, nor upon any balance which may, on the final settlement of his accounts,
be found to be due to him.”
Thus, it could be seen that in respect of the earnest money deposit of Rs.79,066/- interest
can be levied only after expiry of six months from the date of completion of work (clause 64).
For the with-held amount as per the agreement in a sum of Rs.97,823/- interest can be levied only
after two years reckoned from the date of completion of work (clause 64-1A). For the rest of
the period, the above referred to clause cannot be put into service to contend otherwise.
10. The learned single Judge has referred to the judgment of APSRTC, rep. By its General
Manager (Now redesignated as Managing Director) Mushirabad, Hyderabad v. P.Ramanareddi,
1989 (1) ALT 195 wherein an identical clause which read as ...
“69. Interest on money due to the contractor: (a) No omission by the Executive
Engineer or the Sub-Divisional Officer to pay the amount due upon certificates
shall vitiate or make void the contract, nor shall the contractor be entitled to
interest upon any guarantee found or payments in arrear, nor upon any balance
which may, on the final settlement of his accounts, be found to be due to him.”
—
has been considered and held that the clause was intended to really prevent any claim
for interest during the running period when final bill was not settled and also in respect of the
earnest money deposit or the sum equal to 2 ½ % of the total value of the work done till the
expiry of the period of six months. This six months’ period was called the ‘observation period’,
so that the department could see whether the work was done satisfactorily or not. The said clause
could not be construed as a total prohibition, but it operates a limited period of six months from
the date of the completion of the work.
11. Likewise, the Supreme Court in the case of State of Uttar Pradesh v. Harish Chandra
and Co., (1999) 1 SCC 63 has held that the claim for damages or claim for payment for the work
done and which was not paid for would not obviously cover any money which may be said to be
lying with the Government. Consequently, there was no prohibition, which could be culled out
against the respondent-contractor that he could not raise the claim for interest by way of damages
before the arbitrator on the relevant items placed for adjudication. A comparable provision,
which has been construed by a three Judge Bench judgment of the Supreme Court has also been
referred to in that case to sustain the claim of interest. In that case, the Interest Act was also taken
into consideration. So is the judgment of the Supreme Court in the case of ONGC v. M/s. M.C.
Clelland Engineers, S.A. (1999) 4 Supreme 235, wherein it was held that merely because award
itself was on claim of interest for delayed payment, interest awarded on award amount till
realisation could not be said to be unjustified.
12. In view of the law declared by the Apex Court, we are of the view that the appellant
has not made out any case for interference in awarding of interest except for the period as
indicated in paragraph 9 above in respect of earnest money deposit and withheld amount. With
this modification, the appeal is disposed of. No costs.
Appeal disposed of.