LEKH RAJ KHURANA v.

UNION OF INDIA

March 3, 1971

IS. M. SIKRI, C.J., G. K. MITTER, K. s. HEGDE, A. N. GROVER

AND P. JAGANMOHAN REDDY, JJ.]

Constitution of India, 1950--Articlc 3ll-Civi1ian employee of Dejence Service-If entitled to protec(ion of Article.

Slatutory Rules-Breach of-justiciability Natural Justice-If can be invoked under general law of 1naster and servant.

The appellant was. appointed in 1942 as Labour Supervisor, Army Ordance Corps.

In 1951, pending inquiry into certain charges against' him his service was terminated by givin~ him one month's notice under rule 5 of the Civilians in Defence Services (Temporai:v Service) . Rules, 1949.

He challenged the kgality of the order of termination on the grounds that it had been passed by an officer subordinate to the a1,1thority who appointetl him and that no adequate opportunity had been afforded to him of defending himself.

He also alleged that the Order was vitiated by ma/a /ides.

In the appellant's appeal against the dismissal Of his suit the High Court held that Article 311 of the Constitution was inapplicable, that breach of the Rules did nor give an aggrieved party a right to go to the Court and that the Order was not vitiated by ma/a fides.-Dismissing the appeal to this Court.

HELD : The appellant, holding a post connected with Defence cannot claim the protection of Article 311 of the Constitution.

Jugatrni Mahinchcnd Ajwani v. Union of India C.A. 1185 of 1965 dt. 6-2-67 and S. P. Bahl v. Union of India C.A. 1918 of 1966 dt. 8-3-68; followed.

(ii) The view of the High Court that the rules are not justiciable .cannot he sustained.

Breach of statutory rules in relation to conditions Of service would entitle the aggrieved government servant to have recol.frsc to the court for redress.

R. Venkataro v. Secretary of State, A.I.R. 1937 P .C. 31, T/ie State .of Uttar Pradesh & Others v. Ajodhya Prasad, [1961) 2 S.C.R. 671 and

State of Mysore v. M. H. Bellary, [1964) 7 S.C.R. 471, referred to.

Jn the present case the order of. discharge has been passed by the ·

, ppointing authority as required by rule 5 ..

(iii) In the appeal before this Court the finding on the point of ma/a fides must be accepted as final and the appellant cannot be allowed to re-agitate that n1attes.

(iv) As regards the applicability of the rule of natural justice it has H not been shown how under the general Jaw of master and selrvant, in the I absence of any protection conferred by Article 311 of the Constitution, "Such a rule can be invoked.

LEKHRAJ v. UNION (Grover, !.) 909

A CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1719 of 1967.

AppeaJfrom the judgment and decree dated May 23, 1961 of the Punjab High Court, Circuit Bench at Delhi in Regular Second Appeal No. 43-D of 1956.

B N. N. Keswani, for the appellant.

V. A. Seyid Muhammad and S. P. Nayar, for the respondent.

The Judgment of the Court was delivered by

Grover, J.

This is an appeal by certificate from a judgment c and decree of the Punjab High Court (Circuit Bench, Delhi} by which the suit filed by the appellant for a declaration that the order dated May 26, 1951 directing' his removal from ser11ice was wrongful, illegal and void and that he still continued to be in the service of the respondent as Supervisor, Army Ordnance Corps

According to the allegations in the plaint the appellant was appointed by the Governor-General in July 1942 as Supervisor.

Army Ordnance Corps which, according to him, was a civil post under the Crown in India.

In the months of September and October, 1950 the appellant was served with chargesheets by the Ordnance Officer, Administration, Shakurbasti, Delhi State, where he was poste<l at that time calling upon him to submit his defence to th! charges of making serious false allegations against his superior officer Maj. H. S. Dhillon. The appellant asked for grant of time for submitting his defence and he also demanded copies of certain documents etc to prove his case.

On May 26, 1951 while this inquiry was pending he was served with an order by the Ordnance Officer, Administration, Sbakurbasti, Delhi which was as follows:-

"Under instructions received from Army Headquarters you al'! hereby given one month's notice of

discarge with immediate effect, services being no longer reqmred.

Your services will be terminated on 25th June, 1951" . . 'J'.he appellant challen.ged the legality of the above order prmc1pal!y on th.e ground that it ha? been passed by an officer who wa~ suord~ate to he authonty who appointed him and H that no !n.qutry as requ1rd y Fundamental Rules and under the provmons of the C'onstttuhon of India" had been held ti mater of allegations airninst him and that no adequate ~po~: tumty had been afforded to him of defending himself or of showing cause against the action proposed to l:Je taken. He also raised the question of the order being vitiated by mala fides.

In the written statement filed by the Union of India it was stated that the appellant had been appoined as a Labour Supervisor in he Extra Temporary Establishment by the COO/Ordnance Officer Incharge, Ammunition Depot, Kasubeg:u under the authority of Financial Regulations, India, Part I, Volume 25 and not By the Governor General.

It was pleaded, inter a!ia, that it was decided by the Government of India vide Army Headquarter's letter dated May, 25, 1951 to terminate the services py serving one month's notice.

Consequently a notice of discharge froni the service was given to him by the Ordnance Officer, Administration, who was competent to serve the notice on him under the authority of the Army Order No. 1202/ 1943. react in conjunction with Financial Regulations refered to before.

The sole material issue which was framed was wh-ther the D order dated May 26, 1951 removing the appellant from 'ervice. was illegal, wrong, void, ultra vires and inoperative. The trial judge held that Art. 311 of the Constitution was applicable to the case of the appellant and that his removal had not been . ordered by the appointing authority. The suit was decreed.

respondent preferred an appeal which was decided by the Additional District Judge, Delhi. It was held by him that Art. 31 I was not applicable to the appelant as he held a post connected with defence.

According to the learned judge the. ar?ellanfs services were terminated under Rule 5 of the Civi!iansin Defence (Temporary Services) Rules, 1949, hereinafter called the 'Rules'.

It was found that the order terminating the services had been passed by the proper authority.

The appeal was allowecl and the suit was dismissed. !he appellant appealed to the High Court which was dismissed.

His appeal was heard along with certain other appeals in which similar points were involved. It was found that the s'alary of the appellant was paid ou:t cf the esiimates of the Mnistry of Defence and he was intimately connected with the defence of the country not as a combatant but as a person holding a post the object of which was exclusively to serve the Military Department. In the opinion of the High Court Articles 309 and 310 were applicable to the case of the appellant but Article 311 was inapplicable. On the question whether the services of the appellant were terminated without complying with the rules the High Court expressed the view that the breach of such rules did not give the aggrieved party a right to go to the court . Reliance in that connection was placed on the decision of the Privy Council in R. Venkatarao v.

F I

Secretary of State(1) .aaid certain other cases in which that decision was followed. In the case of the appellant the only other pOint which appears to have appear to have been argued on his be half and which was decided by the High Court related to the allegation of mala fides. The decision went against him on that point.

The question whether the case of the appellant was governed by Art. 311 of the Constitution stands concluded by two decisions of this court. In Jagatrai Mahinchand Ajwani v.

Union of lndia( 2 ) it was held that an Engineer in the Military Service who was drawing hise salary from the Defence Estimates could not claim the protection of Art. 311 (2) of the Constitution. In that case also the appellant was found to have held a post connected with Defence as in the present case.

This decision was followed in S. P. Behl v. Union of India('): Both these decisions fully cover the case of the appellant so far as the applicability of Art. 311 is concerned.

Learned counsel for the appellant sought to argue that since the appellant was admittedly governed by the rules which framed under s. 241(2) of the Government of India Act 1935 he was entitled to the protection of s. 240 of that Act.

Chapter I of Part 10 of that Act related to the Defence Services. According to ss. 238, 235, 236 and 237 were applicable to persons who not being members of His Majest's Forces held or had held posts in India connected with the equipment or administration of those forces or otherwise connected with Defence as they applied in relation to persons who were or had been members of those forces.

Section 240, to the extent it is material was in the following terms:-

"240( 1) Except as expressly provided by thi~ Act, every person who is a member of ! a civil service of the Crown in India, or holds any civil post under the Crown in India, holds office during His Majesty's pleasure.

(2) No such person as aforesaid shall be dismissed from the service of His Majesty by any authority subordinate to that by which he was appointed.

( 3) No such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity or showing cause against the aciion proposed to be taken in regard to him :

(I) AJ.R. (1937) P.C:. 31.

(3) C. A 1918 of 1966 dt. 8-3-68. 14-LI IOOSup.CI/72

(2) C. A. 1185 of 1965 dt. 6-2-67.

Provided .............. " Section 241 provided for recruitment and conditions of service.

On behalf of the appellant it was .contended that since his conditions of service were governed by the rules which were framed under the above section, s.240 was clearly applicable and his services could not h\lve been terminated in terms of subs. (2) of that section by any authority subordinate to that by which he was appointed nor could he be dismissed or reduced in rank until he had been given a reasonable opportunity of showing cause against the action proposed to' be taken in regard to him. At no stage of the proceedings in the courts below the appellant relied on s. 240 of the Government of India Act and rightly so because the order of his discharge or termination of service was made after the Constitution had come into force.

It was apparently for that reason that protection was sought from Art 311 and not s. 240 of the Government of India Act

1935. We see no reason or .iustification in the present case for determinil))l; whether a person holding a civilian post which is 'Connect(!(} with the defence and for which he is paid salary and emolmnents .from the Defence Estimates would be governed by the .provisions of section 240 of the Government of India Act if the provisions of that Act were not applicable to the case of such a servant.

The next question is whether rule 5 of the Rules was applicable and whether the appel!ant could claim the benefi\ of that rule.

It provided, inter-alia, that the service of a temporary :;.., vemment servant who is not in quasi-permanent service shall be liable to termination at any time by notice in writing given either by the government servant to the appointing authority or by the appointing authority to the government servant.

The view of the High Court that the rules were not justiciable cannot be sustained as the decision of the Privy Council in Venkatarao's case (supra) and the other cases following that view have not been accepted as laying down the law correctly by this court. It has been held that the breach of a statutory rule in relation to the conditions of service would entitle the government servant to have recourse to the court for redress; vide The State of Uttar Pradesh & Others v. Ajodhya Prasad(I) and State of Mysore v.

M. H. Bellary( 2 ). Now Exhibit P. 3 which is a letter dated May 26, 1951 and which was produced by the appellant himself shows that one mon.th:s ntice of discharge was given by the Ordnance Officer, AdnuRIStration, under instructions received from the Army Headquarters.

A <:opy of another letter Exht. P-2 dated May 27, 1951 was pro- -<iuced according to which it had been decided by the Government

(I) [PSI] 2 S.C.R.671.

(2) [1964] 7 S.C.R.471.

-~--Iit

of India that the services of the appellant be terminated by giving him one month's notice.

It is true that the original of that let•er was not produced although it had been summoned by the appellant. It is at least clear that the Ordnance Officer, Administration, had served the notice of discharge under instructions from the Army Headquarters. In this view of the matter there is no substance in the contention raised on behalf of the appellant that the order of discharge had not been made by . the appointing authority.

At any rate before the High Court there was no challenge to the finding of the learned District Judge on the point and a question of fact cannot be allowed to be reopened at this stage.

The learned counsel for the appellant attempted to reopen the findiiilg on the question of mala fides and also invoked the rule of natural justice in so far as the appellant had not been afforded any opportunity of showing cause against his discharge or tennination of services.

In the appeal before this Court the finding on the point of ma/a fides mu&t be accepted as final and the appellant cannot be allowed to reagitate that matter.

As regards the appli cability of the rule of natural justice it has not been shown to us how under the general law of master and servant, in the absence of any protection conferred by Article 311 of the Constitution such a rule can be invoked.

The appeal fails and it is dismissed but in view of the cir cumstances we leave the parties to bear their own costs in this E Court.

R.K.P.S.

Appeal dismissed.

LEKH RAJ KHURANA

UNION OF INDIA

March 3, 1971

IS. M. SIKRI, C.J.

G. K. MITTER

K. s. HEGDE

A. N. GROVER

P. JAGANMOHAN REDDY, JJ.

Constitution of India

Article 311

Article 311

[1961) 2 S.C.R. 671

[1964) 7 S.C.R. 471

Article 311

B N. N. Keswani

V. A. Seyid Muhammad

S. P. Nayar

Grover

India

H. S. Dhillon

May 26, 1951

Delhi

Union of India

Government of India

May, 25, 1951

Art. 311

Additional District Judge, Delhi

Art. 31

Articles 309 and 310

Article 311

Art. 311

Art. 311

Art. 311

s. 241(2)

Government of India Act 1935

s. 240

ss. 238, 235, 236 and 237

Section 240

Section 241

s. 240

Art 311

s. 240

Government of India Act

section 240

Venkatarao

Article 311


MATRU alias GIRISH CHANDRA v.

STATE OF UTTAR PRADESH

March 3, 1971

[P. JAGANMOHAN REDDY AND I. D. DuA, JJ.]

Circumstanticl evidence-Weight of.

Thi' appellant and two others were charged with the offences of murder of a woman and her three year old son by brutally staobing them, and theft of cash and ornaments from the house of the deceased. The offences were alleged to have been committed between 10 and 11 a.m.

About six months prior to the occur'rence there was a quarrel between the deceased and the wife of the appellant who was the next door neigh: bour during which the decease\! received an injury. The deceased wrote about this incident to her father.

On the day of the occurrence when the husband of the deceased received infohnation of the murder he rushed home from his shop and gave information of the occurrence to the polic:e at about 12.40 p.m. but, as he did not suspect anyone, he merely mentioned the circumstances in which he had come to know of the. murder.

The appellant was with him till the time when the First Information Report was lodged.

Next morning one person irif,_rmed the husband of the deceased that he had seen the appellant and two unknown persons entering thehouse of the deceased at about 10 or 10.30 a.m. on the previous day and another person gave the information that about 11.00 a.m. he had seen the appellant and two other persons coming out of his house: The husband -, pf the deceased passed on the information to the police.

By that tim~ the appellant had disappeared. Three days la(er, he was apprehended. On search of his person a spectacle case containing a pair of spectacles and a gold ring were recovered from the folds of his dhoti.

The Sessions Judge found the appellant guilty of murder and the fligh Court confirmed the conviction. The other two accused were acquitted.

On appeal to this Court,

HELD : The cumulative effect of circumstantial evidence in the .present case falls short of the test required for sustaining a conviction. When proof of guilt depended solely on circumstantial evidence, it was incumbent on the courts to properly consider and scrutinise all the matenal factors and circumstances for determining whether the chain of circumstantial evidence is so complete as to lead to the only conclusion of guilt. [928 FHl

(1) Normally this Court does not go into evidence_ and appraise it for itself in c'r:iminal appeals under Art. 136 of the Constitution, because, the Article does not confer a right of appeal. It merely clothes this Court with discretionary power to scrutinise and go into the evidence in special circumstances in order to satisfy itself that irijustice has not been done .. In the present case the exceptional features were that it was a case of circumstantial evidence, the identification of the stolen articles was unsatisfactory, and the other two accused, who had been charged along with the appellant, had been acquitted. [919 F-GJ

(2) (a) The husband of tihe deceased himself did not think that the appellant was inimical towards the deceased and he did not suspect him

f '

A of complicity in the murder. The alleged altercation between the deceased and the appellant's wife did not leave any serious impact on the mind of the husband of the deceased, and the appellant's admitted presence in the house of the deceased till the lodging of the F.I.R. indicated that rela lions between them were not hostile or unfriendly. [921 D-FJ

( b) The letter written by the deceased to her father about the quarrel does not prima facie fall within the purview of s. 32, Indian Evidence Act. But even if this letter were held to be admissible the motive which it suggested was not o! sue<h a strong and impelling nature as to induce the murder of the deceased and her infant child. [927 H, 928 A-Bl

(3) (a) It is unbelievable that the appellant and his companions en tered . the house of the deceased for the purpose of committing murder and theft in broad day light when persons who knew him were likely to see him entering the house.

The movements and behaviour of , the appellant did not show any abnormality. On the contrary, the behaviour and conduct of the appellant, judged by nolrmal standards, was not' suggestive of his involvement in such a heinous crime. In the absence of direct evid

ence this consideration could not be ruled out as irrelevant. [922

A-B,

D-E, G-H]

(b) The appellant's conduct in absconding does not necessarily lead to the inference of a guilty mind.

Even an innocent person may feel panicky •.nd try to evade arrest when wrongly suspected of a grave crime.

Normally courts are !, lisinclined to attach much importance to the act of absconding of the accused, treating it as a very small item in the evidence for sustaining conviction. [928 B-D)

( 4) The evidence !regarding the recovery of the w:ticles from the appellant's possession at the time of his arrest was not acceptable without proper corroboration from a more disinterested and dependable source.

Also, the ring said to have been recovered was of a common design and easily available. [926 A.Cl

(5) The identification of the ring was also unsatisfactory. Identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that !heir progress with the investigation into the offence is proceeding on right lines. [920 F-G, 926 G-H]

In the present case, although the articles were recovered three days after the occurrence the test identification was held by the Magistrate nearly four months later.

The reason for the delay was suggested that similar articles had to be pirocuted for mixing up with the articles recovered; but in fact the delayed identification had been held in a highly unsatisfactory manner, in that the articles mixed up were dissimilar. [926 C-D]

(6) The weapon with which the crime was committed was not recovered, and, no •tains of blood were noticed by anyone on the appellant's clothes even though he was with the husband of the deceased right up to the lodging of the F.I.R. and even accompanied him for that purpose.

[928 E-F]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 165 of 1968.

Appeal by special leave ftom the judgment and order dated February 8, 1968 of the Allahabad High Court in Criminal Appeal No. 2305 of 1965.

-- -- ....... ----

A. S. R. Chari, J.P. Goyal and G. S. Chatterjee, for the A appellant.

0. P. Rana, for the respondent.

The Judgment of the Court was delivered by

Dua, J.

In this appeal by special leave the appellant Matru al(as Girish Chandra chal:enges his co, nviction under s. 302 read

with s. 34, I.P.C. and under s. 382, I.P.C.

For the former offence he was sentenced to imprisonment for 'life and for the latter to rigorous imprisomnent for four years.

Both the sentences were directed to run concurrently.

The appellant, along with Mohar Singh and Saheb Singh were committed to the court of Sessions for trial for offences under ss. 302/34, I.P .C, for the murder of Smt. Omwati, wife of Ram Chander ( P. W. 1 ) and of their three years old son Sua Lal and under s. 382, I.P.C. for com.nitting theft of cash, ornaments and . other things from the house of the deceased.

The offences were alleged to have been committed on May 29, 1964 between 10 and 11 a.m. in the township of Shamsabad.

The appellant a; nd the deceased were admittedly next door neighbours in Mohalla Chaukhanda at the relevant time. Ram Chandra had two sons, the elder onei Ramji being six years old.

On the day ef occurrence at about 9 a.m. Ram Chandra left his E house for his shop about three furlongs away, leaving behind in the house his wife and two sons.

About an hour later Omwati sent the elder son to the shop with some food for his father.

A few minutes later Ram Chandra sent to his house some vegetables through ]!is servant.

After sometime his servant returned_ to the shop and' informed Ram Chandra that his wife was lying in F the. house in pool 9f blood.

After calling his nephew to look after the shop Ram Chandra inunediately went to his house and found his wife lying dead in the courtyard near the well whereas his 3 year old son Sua Lal was lying dead in a room close to the courtyard.

The box inside the room also appeared to have been opened and its contents pilfered.

Some gold and silver ornaments which his deceased wife was wearing that morning were G found missing.

Information of the occurrence was lodged at the police station Shamsabad at about 12.40 in the afternoon.

But as he did not suspect anyone he merely stated the circumstances in which he came to know of the occurrence and found his wife and child dead in the house.

It was stated in the report that Rs. 200/- in cash and three ornaments including a ring had been If taken away by the miscreants.

Matru, appllant, who was the next door neighbour came to Ram Chandr~'s houe bfori: the first information report was lodged and remamed with him !Ill the

' A

report was made to the police.

The investigating officer found blood at both the places where the two dead bodies were lying.

The blood-stained and unstained earth was collected anti sealed.

Next morning it appears Chhotey Lal (P.W. 2) and Nathu Lal

(P.W. 10) went to see Ram Chandra between 6 and 7 a.m.

Chhotey Lal informed him that he (Chhotey Lal) had seen Matru and two unknown persons entering Ram Chandra's house at about 10 or 10.30 a.m. on the previous day and Nathu Lal gave him the information that at about 11 a.m. on the day of the occurrence he had seen Matru and two other persons coming out of his house.

These witnesses at that time did not attach any importance to the three persons entering and after some time coming out of Ram Chandra's house.

However, later when they learnt about the double murder in Ram Chandra's house between

10 and 11 a.m. they thought that they should tell Ram Chandra what they had seen on the morning of May 29 at about the time of the occurrence.

It is said that about six months prior to the occurrence rela tions between Omwati and the wife of Matru, appellant, had become strained.

One of Matru's daughter was married and the other was of marriageable age but both were living with their parents.

Omwati suspected that some people used frequently to visit Matru's house without any cogent reason and also gave cur rency to this fact.

Matru's wife naturally resented this.

About six months prior to the occurrence an incident is stated to have taken place which gave re to a quarrel betweeq the two won\en.

Matru's wife threw a stone which struck Omwati on her head.

Ram Chandra did not attach much importance to this incident considering it to a matter of common occurrence amoogst W(\menfolk.

Later, however, Omwati seems to have told her hl!Sband that she had been threatened by Matru's wife with dire consequences.

Ram Chandra advised his wife not to have any thing to do with Matru's wife.

After the occurrence, the appel !ant, it appears, remained in his house till the inquest was over but thereafter he seems to have disappeared.

On receiving in formation about Matro and his two companions going into his house and coming out a short while later round about the time of the occurrence, Ram Chandra informed the investigating officer what he had been told by Chhotey Lal and Nathu Lal. The Sub-Inspector searched the appellant's house at about 9 a.m. on May 30, but he was not found there, nor was any incriminating thing found in the house.

A search for the appellant was made but he col/)d not be traced till three days later.

On June 1, when the investigating officer learnt that Matru was likely to go to his village to see his children he was apprehended and on search of his person a ; pectacle case containing a pair of spectacles and a gold ring was recovered from the folds of his dhoti.

Complicity

of Mohar Singh because known to the police on Matru's interrogation. But Mohar Singh could not be arrested till September 13, 1964. When arrested, he offered to recover a shawl, one of the stolen properties, which he had sold to Darbarilal (P. W. 17) for Rs. 70/-. The shawl was accordingly recovered at Mohar Singh's instance from Darbarilal.

Saheb Singh was also arrested on suspicion.

The Sessions Judge found the appellant guilty of murder and also of an offooce under s. 382, I.P.C.

Since there was no evidence of specific part played by the appellant the extreme penalty was not imposed on him.

As observed earlier under s. 382, I.P.C. he was sentenced to four years rigorous imprisonment.

Mohar Singh was, acquitted of the offence under s. 302/ 34, I.P.C. as also of the offence under s. 382, I.P.C. He was, however, cvinced for an offence under s. 411, I.P.C. and sentenced to rigorous imprisonment for two years.

Saheb Singh was given benefit of doubt and acquitted.

The only evidence against Saheb Singh was that of his identification by Nathu Lal

(P. W. 10) which was not corroborated by any other evidence and identification alone in the circumstances was considered unsafe for convicting him.

Both the convicts appealed to the High Court.

That Court came to the conclusion that Matru had a motive to commit thtcrime and that Chhotey Lal (P.W. 2) and Nathu Lal (P.W. 10) were reliable witnesses and. that the investigation was neither tainted nor unfair to the accused.

The statement of Ram Chandra (P.W. 1), husband of the .deceased, and his conduct throughout also appeared to be quite straingtforward.

The ring which had been recovered from Matru's possession at the time of his arrest was held to be the one which the deceased was wearing when her husband left the house in the morning of the occurrence.

This was considered to be a very incriminating circumstance.

All these circumstances taken along with the fact that Matru had absconded were heia to connect the appellant with the crime beyond reasonable doubt.

Mohar Singh, from whose possession nothing had been recovered was given benefit of doubt and acquitted.

The recovery of the shawl froni Darbarila! in the absence of any writing v.as not considered to be incriminating enough to justify Mohar Singh's conviction because it did not exclude reasonable doubt about his innocence.

In this Court it was strongly argued on behalf of the appellant Matru that the circumsta, ntial evidence does not establish his complicity in the offence charged. The polic~ investigation was also assailed and it was submitted that identification of the articles

• A

• G

E -

F •

alleged to have been stolen and later recovered was not of much value because the articles alleged to have been recovered were commonly available and had no distinguishing marks of identification.

Objection was also raised to the admissibility of Ex. Ka-4, a letter written by the deceased to her father in which reference was made to injury received by her as a result of a brick thrown by Matru's wife.

This ground was not included in the original memorandum of appeal dated May 1, 1968 presented in this Court, but permission to raise this ground was sought by means of an application dated July 25, 1968 which was allowed by this Court w:nile granting special leave.

It was contended that this letter was inadmissible in evidence as it did not contain any statement relating to the cause of Omwati's death or to the circumstances of the transaction which resulted in her death. According to the argument this letter did not fall within the purview of any of the clauses of s. 32, Indian Evidence Act under which alone it could be held admissible in evidence.

Shri Chari also submitted that the other two co-accused having been acquitted, s. 34, I.P .C. became inapplicable to the case of the appellant and his convic tion under s. 302 read with s. 34, I.P .C. must be held to be con trary to law. For this submission he relied on Prabhu Babaji Navle v. State of Bombay.(') Finally counsel argued on the authority of Hanumant v. State of M.P.(2 ) that in case of cir cumstantial evidence the circumstances from which the conclusion of guilt is to be drawn should be fully established and all the esta blished facts should be consistent only with the hypothesis of the guilt of the accused. In the present case the circumstantial evidence is not of conclusive nature and tendency, said Shri Chari.

Normally this Court does not go into the evidence and appraise it for itself in criminal appeals under Art. 136 of the Constitution because this Article does not confer a right of appeal on a party.

It merely clothes this Court with discretionary power to scrutinise and go into the evidence in special circumstances in order to satisfy itself that substantial and grave injustice has not been done .

In the case before us we are persuaded to go into the evidence because of several exceptional features.

It was a case of cir cumstantial evidence and the two accused who had been charged alonll with the appelta.nt under s. 302 read with s. 34, I.P:C. were acquitted. The appellant a neighbour of the deceased, remained with her husband at the place of occurrence till the report was made to the police on the day of the murder. Indeed, he accompanied Ram Chandra for lodging the report. The question of admissibility and value of Ex. Ka-4 and the probative value of the identification proceedings of the articles alleged to have been stolen and recovered were also seriously canvassed at the Bar.

And apart from the argument that the' circumstantial evidence on.

(l) A.l.R.1956 S.\:.51.

(2) [ 1952) S.C.R. 1091.

the record does not exclude reasonable possibility of the appellant's innocence, the further question was raised tha~ if these two pieces of evidence, namely Ex. Ka-4 and the identification of the articles were to be ignored then there was absolutely no evidence on which a serious argument about the appellant's guilt could be founded.

B Now, the deceased Omwati and her infant son were undoubtedly both murdered at about 10 or 11 on the morning of May 29, 1964. Ram Chandra Gupta, the husband of Omwati had no reason to suspect Matru, appellant, (his neighbour) of • this crime. In the F.I.R. Ex. Ka-10 no one was named as a suspect and only the following articles of property were stated to be c missing:

1. Gold chain weighing about 3 tolas, plain twisted design worth Rs. 3751-;

2. One pair of gold jhumki together with kundal weighing U tolas worth Rs. 1501-;

3. One gold ring longitudinal design weighing t Iola

worth Rs. 751-.

This was stated to have been worn by the deceased;· and

4. Currency notes worth Rs. 2001 - stated to have been in the box.

It may here be-pointed out that when P.W. 1 Ram Chandra came into the witness :box he at~mpted to prove Ex. Ka-3, a supplementary list of missing articles which list, he said, had been handed over to the investigating officer soon after the preparation of the inquest report. The production of this list was objected to and though the trial court relied on it, the High Court ru?ed it out as hit by s. 162, Cr. P .C. The position, therefore, remains that the discription of the ring in the F.I.R. is the only description we have on the record and also that there is no mention of the spectacle case and the spectacles in the F.l.R. Suspicion fell on the appellant only when Chhotey Lal, barber (P.W. 2) and Nathu Lal (P.W. 10) saw Ralll Chandra on the following morning (May 30, 1964) and inforn1ed him of what they had separately seen on the morning of the 29th at about the time of the alleged murder. What they conveyed to Ram Chandra has already been noticed by us.

It was on the basis of thidnformation that Ram Chandra is said to have informed the investigating officer about his suspicion against the appellant.

The recovery of the articles, e\>.en if the evidence of ithese two witnesses is belived, would have a material bearing on the case "because if th~ recovery proceedings of the articles said to have been recovered

A from the appellant's possession does not inspire confidenoe and it is not possible to hold beyond reasonable doubt that these were the very articles found missing from the house of the deceased, then it may be extremely difficult to sustain the appellant's conviction on the prosecution evidence.

In this connection particular importance attach.:s to the ring stated to have been worn by B the deceased because !f that ring is not proved to be the same which is alleged to have beiln worn by the deceased Omwati at the time of her murder then no inference would seem to arise against the appellant.

The prosecution case against the appellant is mainly sought to be established by the evidence of P.W. 2 and P.W. 10 and by C the evidence relating to the recovery from the appellant of the articles alleged to belong to the deceased supported by the evidence of motive on the part of the appellant for committing this crime and corroborated by the appellant's alleged conduct in try ing to mislead Ram Chandra and the investigating officer and finally by disappearing after the lodging of the F.I.R. The trial D court, as also the High Court, both relied on these four pieces of evidence for convicting the appellant.

To begin with it is notworthy that Ram Chandra himself does not seem to have thought that the appellant was inimical towards the deceased and he did not suspect the appellant of complicity in the murder. According to his own testimony it was only after Chhotey Lal (P.W. 2) and Nathu Lal (P.W. 10) had informed him about what they had seen on the morning of May 29, that he recollected that about five or six months prior to the occurrence there was an altercation between Omwati and the app-::llant's wife.

This would clearly indicate that the alleged altercation had not left any serious impact on the mind of Ram Chandra and the appellant's admitted presence in the ho~ of Ram Chandra till the lodgingof the F.l.R. indicates jiat relations between Ram Chandra and the appellant were not bpenly hostile or unfriendly.

The evidence of P.W. 2 shows thatthe appellant and two other persons came out of the appellant's house and entered the house of Ram Chandra on the morning of May 29 and the evidence of P.W. 10 shows that the appellant and' two other persons came out of Ram Chandra's house and entered that of the appe.llant on the same morning a little later. This evidence h-aving been believed b~ the. iv:o courts below may be accepted.

But so far as the quesl!on of lime when. these two witnesses saw the appellant and two other persons going into and coming out of Ram Chandra's house is concerned they seem to have ttiven the time from their impression Ram Chandra (P.W. 1) doe~ not say that P.W. 2 and P.W. 10 had told him on the morning of May 30 that when they saw the appellant and his two companions on May 29, they had. a Potli with them. It also seems somewhat unbelievabie .that the appellant with his compa!lions should have entered the house .of Ram Chandra with the purpose of committing murder and theft in broad daylight particu Iarly when P.W. 2, a barber who knew him and lives about one furlong away from his house had actually seen him. It is unlikely that the appellant should have failed to notice P .W. 2. It is in the evidence of P.W. 2 that the appellant and his com panions came out of the. _appellant's house and entered that .~~ Ram Chandra when the witness called out the name of Pand1t11 meaning thereby Puttulal Pandit.

Again, if the appellant and his two companions had committed the. gruesome murder of Omwati and Sualal (Omwati aged 25 years had 4 incised Wounds, 3 in the neck and one in the abdominal cavity and Sualal, 3 years old, had three incised wounds on his neck and one on his right wrist) within half an hour and had also stolen the articles including a ring, a gold kundal, jhumki and silver iori worn by the deceased on her person and also broken open a box and removed therefrom a shawl and Rs. 200/ • within a short span of half an hour as alleged by the prosecution, then it is somewhat surprising that thdr movements and behaviour should not have reflected any abnormality. At least Nathu Lal does not seem to have noticed any abnormal behaviour which :would excite his suspicion.

Now, the appellant and his cc;>mpanions were seen by P.W. 2 and P.W. 10, broadly speaking, between 10 and 11 in the morning.

We would give these two witness.es a margin for their inaccuracy in regard to the time as deposed by them in the witness box.

P.W. 2, it may be recalled, gives the tin1e as between 10 and 10.30 a.m. when he. saw the appellant and his companions and P.W. 10 gives the time between 10.30 and 11 a.m. when he saw them coming out of the house of P.W. 1.

The F.l.R. was lodged at 12.40 p.m. which means that Ram Chandra (P.W. ,1) must have arrived at his house a little earlier. The appellant, according to P.W. l, had been with him when the F.I. Report was got written at his house and he went along with P.W. 1 for lodging th~ said report.

Th.e behaviour and conduct of the appellant, judged by normal standards, is not suggestive of his involvement in such heinous crime, unless he was an experienced criminal (of which there is no suggestion) with extraordinary balance of mind and a disciplined control over his senses and faculti.es.

In the absence of any direct evidence this consideration cannot be completely ruled out as irrelevant when weighing the circumstantial evidence in a case like the present.

This takes us to the recovery of the alleged stolen articles from the appellant and their identification.

The main evidence

F ..

' I'

• •

of recovery consists of the statements of Head Constable Ahibaran Singh (P.W. 5) and of Nathu (P.W. 10) and the recovery memo Ex. Ka-1 dated June 1, 1964.

P.W. 5 has deposed in his examination-in-chief that he did not know the appellant.

According to him, an approver had informed him at about 7 p.m. on June l, that the appellant would be coming to his house that evening to meet his children. At about 7 .30 p.m., P.W. 5 along with Bankey, Nathu, Di!asa and two constables sat near Bankey's house waiting for the appellant.

It was the approver who pointed out the appellant, whereupon, on being interrogated by the witness, the appellant tried to run away. He was, however, apprehended.

In the course of this process !h¢ appellant received some injuries. .Now, the person described as the approver has not been produced as a witness and indeed even his identity has not been disc!osea.

It is noteworthy that there is no mention of any approver anywhere else on the record.

What is still more intriguing is that even though Nathu was not previously known to the witness, within half an hour of the information about the appellant's expected visit to his house P.W. 5 managed to collect Nathu and two other persons for arresting him.

The statement made by P .W. 5 in this connection makes interesting reading.

He said:

"I received information through an approver at about 7 P.M. that he shall come home to meet his children from the jungle of Imadpur by night. At this I sat near th~ house of Bankey by the side of the passage, alongwith Bankey, Nathu, Dilasa and two constables.

Matru, accused present in court came from the side qf Imadpur at about 7.30 O'clock. The

approver pointed him out.

On being interrogated by me, he took to his heels. I caught him after surrounding and causing slight injuries to him.

When I duly searched his person in presence of the witnesses. the case. Ex .. 3, was recovere.d from the right phant of the clho!t which he was. wearing. On opening it, the spectacles, Ex. 2 and nng Ex. 1 were found in it. I prepared their memo, Ex. Ka-! correctly at that spot immediately and obtained the signatures and thumb impressions of the witnesses over it. I sealed the articles there after sewing them in cloth . . . . . . Before the arrest of Matru. I and the witnesses had searched each other's persons."

In cross-examination it was elicited from him:

"The approver had not told me that he wa ing articles also with him I took the wi'! s carryf • nesses or

help. I Oid not recognise him also. Irnadpur might be about half a mile from the place where I arrested him. . I did not make peop1~ sit on any other way. I sat on that very way.

I took. Nathu with me while he was coming out of a temple in Mauza J atpura. I took Bankey from Bazar Kalan and Dilasa from Mauza J atpuca.

I had not told the witnesses that there was possibility of articles being recovered from him.

I did not know Nathu from befor-~. I might have seen him.

I did not know that his name was Nathu.

Matru was at a distance of about .ten paces towards the South of me when I saw him for the first time. He was coming from the western side."

Now, considering the fact that it was only at about 7 p.m. that ihe approver had informed P.W. 5 that the appellant was coming to his house and at 7 .30 p.m. the arrest was actually made, it seems to be somewhat surprising that 11<~ should have within that short time collected Nathu, whom he did not know before, Bankey and Dilasa from various places and come to the spot in time for effecting the appellant's arrest and search.

Bankey and Dilasa have also not been produced as witnesses.

Nathu, who has appeared as P .W. 10, has stated in his examination-in-chief about :the arrest and search of th<~ appellant in the following words:

"On the fourth day of murder, i.e., after a gap of two days at abcut 7 p.m. the Head constable took me, Bankey and others with him.

One person was keeping his face covered. He asked me to accompany him saying that he had to arrest a man.

He. had taken Dilasa as we!l.

We sat in mohalla Tikuriya near the house of Bankey. We searched the persons of the constables and Head Constable.

We searched the persons of us all. A little later, Matru accused, present in court came from the western side.

Th~ person who was with us poin\ed out that he was Matru. Matru started running away. At this the Head constable and the constables caug!Jrt hold of him. They gave him one or two danda blows while trying to catch him. When his person was searched, a case for keeping spectacles containing a pair of spectacles and a gold ring, ws recovered from the right phant of Matru accused.

All these things were sewn in cloth and sealed on the spot.

Memo was prepared there on the spot.

It was read out.

My thumb impression was also obtained. (Ex.

Ka-1 read over) Yes.

These very contents were read out (Shown Ex. 1-3 says) Now, I shall not be able to

D •

ff ...

.~·

.... t

A identify the articles as to whether they are the same or some other. It happened long ago."

P.W. 16, Jamuna Prasad, retired police constable is another witness who claims to have been present at the time when Matru was arrested. He was at that time posted as a constable at P. S.

Shamsabad. In examination-in-chief he said nothing about the appellant's arrest or the Jecovery of the articles from him.

It was only in cross-examination that he deposed that he was with P.W. 5 at the time of the appellant's arrest and after arresting him the party retnmed to the police station at about 8 or 8.30 p.m.

His version is:-

"Diwanji (presumably referring to P.W. 5) had a talk with one person in my presence. After that he asked me to go along with him. So I accompanied him.

We met Bankey witness in Kalan Bazar. I cannot tell whether Bankey has got some shop or not or if he bas got it, where is it? We met Nathu near the Maria.

After arresting Matroo, we returned to the Police

Station at about 8 or 8.30 O'clock in the evening."

He has, however, given no details of the articles recovered nor about the appellant's search. The testimony of these witnesses is far from impressive and the story of recovery is difficult to accept on its face value. The memo of recovery is Ex. K~-1. It purports to have been prepared at 7.30 p.m. on June 1, 1964.

According to it on Matru's search, a spectacle case containing "a spectacle and a gold ring as per description given below corresponding to the case as offence no. 67 under sections 3021380, I.P .C. was recovered from the riht side of the phent of his

dhoti." The description of the articles recovered, according to this memo, is :

1. One spectacle case of black colour, having dark blue colour inside;

2. One spectacle, having brown frame, white glasses, not circular, half frame;

3. One gold ring, longitudinal dsign, having green enamel with lengthwise, with red and blue flowery design on the enamel. The ring is somewhat bent.

It is signed by Head Constable, Ahibaran Singh and attested by Bankey, Dilasa and Nathu. JV'does not mention the place where the search was effected though the memo is stated to have been prepared in a shop withou! giving any particulars of th~ shop.

This memo does not materially add to the oral testimony of recovery. This is all the evidence of recovery of the aricles. We

do not find it safe on this evidence to hold that the articles men• tioned in Ex. Ka-1 were recovered from the appellan• s puss.:ssion at the time of his arrest on June 1, 1964 at 7.30 p.m.

Neither P.W. 5, the investigating H. C. nor Nathu, (P.W. 10) can be considered to be witnesses on whom implicit reliance can be placed without proper corroboration from a more disinterested and dependable source.

Having not been impressed by the evideqce of recovery, the identification test of the articles can be of little help to the prosecution, though even on that point the prosecution evidence is equally uninspiring.

Identification tests, it may be pointed out, do not constitute substantive evidence.

Such tests are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on right lines. Now, althqugh tlie articles are stated to have been recoyered on June l, the test identificatiqn was held by Shri Jwala Prasad Srivastava, Magistrate, on October 23, 1964. The reason for this delay as suggested is that similar articles had to be procured for mixing up with the articles recovered.

But the manner in which this delayed identification has been held in this case is highly unsatisfactory.

Jwala Prasad Srivastava, Magistrate, First Class, who had conducted the test identification appeared as P. W. 21, in his examination-in-chief he said:

"Even before the dates for identification proceedings were fixed but the identificaton could not be conducted because similar articles had not been received.

The articles were opened and shown to the contractor once so that correct articles could be brought. On 13-7-64 he made an application that the articles should be shown to him. The articles must have been shown to him within some days after that. The date must have been mentioned there but that order sheet is missing. Even then I took a precautien that none except the Contracior and the court moharrir should see the articles.

Just after showing the arles to the contractor, I got the same sealed in the court room in my presence."

Jn cross-examination he said :

"The khol (case) Ex. 3 was old. Out of the khols which were mixed, one or two were perhaps new. That too was similar (dissimilar ?) but the dissimilarity was not so much, that I ought to have noted it ( hown paper No. 491147 of S.C. File) Yes, this note is mine.

'The case of the spectacle is old one whereas the mixed cases were new' (marked Ex. Kha 19).

The counsel for the accused persons moved an application

• A

on the same day after the identification proceedings.

I had read it. The allegations regarding the ring, were not correct. So I did not note them in my order. The order sheet of some particular dates regarding the iden tification proceedings, were preserved ? The same has been found.

The order sheet of two dates has been found.

Out of them, one bears the signature of my predecessor.

I recognise the same. (marked Ex.

Kha 21). The other one does not bear the signature of any one. I do not remember exactly who presented the application Ex. Kha 11.

Perhaps it was moved but the contractor's man. That man used to come frequently. Marginal note on Ex. Ka-11 shown.

That encircled in red pencil and (marked X) I do not recognise the same.

I cannot tell who made this entry and when. At present I cannot tell on which date the articles were shown. I did not find any such entry in the record which could tell on which date the articles were shown to the contractor. Only the word "allowed"

is written with the date 13-7-64." ..... .

. . . . . . Only one man of the contractor used to bring the articles before me.

I do not remember his name. I can only recognise him by face.

It is quite wrong that on 1-9-64 these articles were brought to the court and were shown to the witnesses.

I do not remember orally on which date these articles were taken out from the malkhana. It is wrong to say that all the articles which were to be mixed, were dissimilar.

Only the cases of the spectacles were somewhat new."

The statement of this witness reveals the unsatisfactory manner of dealing with 1the test identification. We are unable to place any reliance on these proceedings.

This takes us to the question of motive. We have already noticed that the altercation between the deceased Omwati and G the apoellant's wife does not seem to have been taken seriously by' either party.

The proceedings under s. 107, Cr. P. C. to which a reference has been made were started by Ram Chandra against the appellant after the occurrence in question and, therefore, they are not relevant on the question of motive for the present offence of murder.

The appellant's counsel questioned the admissibility of Ex. Ka-4, the letter said to have been written H by the deceased to her father, on the ground that it did not fall "" within the purview of s. 32, Indian Evidence Act. The objection appears prima facie on plain reading of the section to possess I 5-L ti OOSup CI/71

928 SUPREME COURT REPOJl.TS

(1971] 3 S.C.R.

merit. But even if this letter were to be held admissible we are A not satisfied that the motive which this letter suggests is of strong and impelling nature so as to induce the murder of Omwati and her infant child.

The motive suggested by this letter, coupled with the testimony of P.W. 2 and P.W. 10, may at best give rise only to a suspicion against the appellant; but suspicion however strong cannot take the place of roof.

The appellant's conduct in absconding was also relied upon.

Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind.

Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime; such is the instinct of self-preservation.

The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case.

Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused.

In the present case the appellant was with Ram Chandra till the F .I.R. was lodged. If thereafter he felt that he was being wrong! y suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence.

One other circumstance which on the facts of this case also deserves notice is the non-recovery of the weapon of offence and the fact that no stains of blood were noticed by any one on the appellant's clothes even fhough he was with Ram Chandra right upto the loding of the F.I.R. and even accompained him for that purpose. The courts below seem to us to have failed to take into consideration all the relevant facts and circumstances of the case.

As proof of the appellant's guilt depended solely on circumstantial evidence it was incumbent on the courts below . to properly consider and scrutinise all the material factors and circumstances for determining whether the chain of circumstantial evidence is so complete as to lead to the only conclusion of the appellant's guilt. In our view, the cumulative effect of the circumstantial evidence in this case falls far short of the test required for sustaining conviction.

We are, therefore, constrained to allow this appeal, set aside the appellant's conviction and acquit him.

V.P.S.

Appeal allowed.

MATRU alias GIRISH CHANDRA

STATE OF UTTAR PRADESH

March 3, 1971

P. JAGANMOHAN REDDY

I. D. DuA, JJ.

Art. 136

s. 32

Indian Evidence Act

Allahabad High Court

A. S. R. Chari

J.P. Goyal

G. S. Chatterjee

P. Rana

Dua

Matru

Girish Chandra chal

s. 302

s. 34

I.P.C

s. 382

I.P.C

Mohar Singh

Saheb Singh

ss. 302

Omwati

Ram Chander

Sua Lal

s. 382

I.P.C

May 29, 1964

Shamsabad

Mohalla Chaukhanda

Ram Chandra

Ramji

Ram Chandr~

Chhotey Lal

Nathu Lal

Matru

Matro

September 13, 1964

Darbarilal

Darbarilal

s. 382

I.P.C

s. 382

I.P.C

s. 302

I.P.C

s. 382

I.P.C

s. 411

I.P.C

Matru

Ram Chandra

May 1, 1968

July 25, 1968

s. 32

Indian Evidence Act

Chari

s. 34

s. 302

s. 34

Art. 136

s. 302

s. 34

Ram Chandra Gupta

s. 162

Ralll Chandra

May 30, 1964

Puttulal Pandit

Sualal

Ahibaran Singh

Nathu

Bankey

Nathu

Di!asa

Imadpur

Dilasa

Irnadpur

Dilasa

Jamuna Prasad

Diwanji

Matroo

June 1, 1964

sections 3021380

Ahibaran Singh

Jwala Prasad Srivastava

October 23, 1964

s. 107

s. 32

Indian Evidence Act


MOHAN LAL

ANANDIBAI & ORS.

March 3, 1971

[J. M. SHELAT, I. D. DUA AND V. BHARGAVA, JJ.]

Practice and Procedure-Plea not raised in pleadings or issues or evidence-If could be allowed tp be raised in argumenrs-Amendmenl of pleadings-When may be permitted.

The appellant, who was the mortgagee purchased under two sale deeds dated 13th May, 1951 the mortgaged property in discharge of the mortgage.

The respondents, who were the daughters of the original owner filed a suit claiming title to the property under gift deeds executed by their mother with respect to a share, (which she got under a sale deed from her husband) and by their father on 2nd May 1951, in respect of the entire property. and alleging that the sale deeds in favour Of the appellant were collusive. The trial court held that the gift deed executed by the mother was valid but that the gift deed executed by the father was fraudulent and not binding on the appellant. On appeal, the first appellate court held that both the gift deeds were invalid. It held that the mother had lost her right to her share, that the gift deed executed by the father was antedated having been in fact executed after 13th May, 1951, and that it was intended to .llefeat the sale in favour of the appellant. It also held that a judgment in another matter inter parties, delivered during the pendency of the appeal, operated as res judiccta. It held that the gift deed by the father was antedated on the grounds. (i) it was belatedly registered on 23rd August 1951 and (ii) the register of the petition-writer who wrote the gift deed was not produced thus raising a presumption aga:nst the respondents.

In secon, i appeal. the High Court held that the lower courts erred in deciding the case on the grounds of fraud or antedating when no such case was put forward in the pleadings, that on the question of res judicata there was not enough material, and that the case should be remanded permitting the parties to make amendments in their pleadings but only in respect of th• plea of res judicata.

In appeal to this Court it was contended that : (I) the High Court was not justified in setting aside the findings of the first appellate court that the gift deed executed by the father was fraudulent and ante-dated,

(2) the appellant should have been given an opportunity to amend the written statement so as to include pleas in respect of the fraudulent nature and antedating; and ( 3) the High Court in fact had set aside all the find· ings and therefore its order permitted the appellants to raise new ole"' by amending the pleadings.

HELD : (I) (a) The pleadings in the written statement did not indicate that the appellant put forward the case that tl'#gift deed was executd by the father after May 13, 1951 and that it was ante-dated. Not only ws there no substance of such pleas there was not even a hint of such obje¢··

tions in the pleadings, and even the facts necessary for determining the H questions were not before the court.

Even the parties and the tr:al court did not understand the pleadings as containing a plea that the gift deed was antedated and fraudulent in the sense of having been executed to defeat and delay the creditors of the father <)f the;; tespond•nts. No i:sue

was framed on the question of fraud or antedating.

Even in the course A of evidence no questions were put on behalf of the appellant to the witnesses of the respondents suggesting such fraud or antedating. The question of the g:ft deed being fraudulent was raised for the first time before the trial court in the course of arguments after the parties had already

concluded their evidence. [934 B-D; 935 B-D; 937 El .

Therefore, there was no justification fdr the trial court to go into the B <JUestion and record its finding. [935 DJ

Nagubai Ammal v. B. Shaina Rco, [1956] S.C.R. 451; J(unju Kesavan v. M. M. Phillip, [1964] 3 S.C.R. 634, Kidar Lall Seal v. Hari Liill Seal, [1952] S.C.R. 179 and Union of India v.MI s. Khas Karanapura Colliery

~ .Ltd. (1968] 3 S.C.R. 784, referred to.

(b) The first appellate court committed a similar error in affirming c t_his finding of the trial court and committed a greater error in going into the question whether the gift deed was antedated, because, the plea was raised for the fii:st time before it only in the course of arguments.

The -delay in registration was not explained by the respondents because the plea was not raised in the trial court and was raised for the first time at the appellate stage.

The register of the petition-writer was not a documen! maintained by or in possession of the respondents. Its non-produc- D ti on could only affect the evidence of petition-writer, but even if his evidence was not relied upon no finding of ante-dating could be given when there was no assertion and no evidence on behalf of the appellants.

[935 E-F; 936 E-H] ,.

(c) Further, the appellant was the only creditor of the respondents'

~ father and the gift in respect of the properties already mortgaged could not in any way defeat or delay his right because the donee could only take the properties subject to the mortgage. [935 G-H] E

(d) The plea that the mother lost her right to her share of the property . and that her husband acquired the right was immaterial, because, even if her gift deed was disregarded the title to the properties was acquired by the respondents through the gift deed executed by the father.

[939 D-E] ..

(2) The pleas regardin~ the fraudulent nature and ante-dating of the gift deed, should not be allowed to oe raised by amendment because, a suit based on such pleas would be time barred and it would be unfair to the respondents to allow these pleas to be raised by amendment at such t a late stage. The pleas of fraud and antedating i11 respect of the gift deed raise an entirely_ new cause of action and a case quite different from that pleaded in the original written stateDjent. It would not be merely a case of a different or additional approach to facts already given in the written G siatement. [941 B-C]

L. J. Leach & Co'iJ'a11y Ltd. v. Jardine Skinner & Co. (1957] S.C.R. 438 and A. K. Gupta & Sons v. Damodar Valley Corporation (1966] 1 S.C.R. 796. referred to. ( 3) Jn directing that the findings of both courts are set aside lhe High ' Court was only referring to the points which it considered and on which . it differed from the lower courts.

Therefore, in permitting amendments, H the High Court had given only liberty to the. appellant to amend his written statment bv setting .... out the requisite particulars and details of his plea of res judicata and other amendments which relate to the plea of res judicata.

MOIM.N LAL v. ANANDIBAI (Bhargava, /.) 931

A The permission to amend could not be interpreted as giviilg liberty to the appellant to raise any new pleas which were not raised at the initial stage.

(939 G-H;940 A-CJ

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 473 of 1966.

Appeal by specfal leave from the judgment and decree dated B August 14, 1964 of the Bombay High Court, Nagpur Bench in Appeal No. 93 of 1959 from Appellate Decree.

M. N. Phadke a.nd A. G. Ratnaparkhi, for the appelian:.

It L. Roshan and H. K. Puri, for respondent Nos. 1 to 3.

The Judgment of the Court was delivered by Bhargava, J.-This appeal by special leave has been filed by Mohan Lal who purchased the property dn dispute from the original owner, Bhiwa, by means of two sale-deeds Exhibits D-1 and D-2 both dated 13th May, 1951.

The properties were already mortgaged in favour of the appellant by two earlier mortgage-deeds exP...cuted on 23rd March, 1949 and 26th June, 1949 respectively.

The plaintiff-respondents claimed that the two sale deeds were collusive transactions between Bhiwa and the appellant and that, in auy case, Bhiwa had no right to sell these properties to the appellant, as the respondents had become owners of these prcperties prior to the execution of the sale-deeds.

The four plaintiff-respondents are the daughters of Bhiwa by two wives, one of thm being

Smt. Hendri.

According to their case. Bhiwa sold two of his malik-makbuza fields having an area of 11.33 acres by sal.~-ded Ext. D-31 to his wife Smt. Mendra and to his nephew.

Barshya, each of the vendees getting a half share in those fields.

Later, Barshya re-conveyed his share to Bhiwa on 20th Ju:y, 1921.

With regard to the share sold to Smt. Mendra, disputes arose between her and Bhiwa.

Bhiwa. consequently. filed a sui: in the year 1941 for cancellation of the sale-deed Ext. D-31 and for a declaration that he was the owner of the entire fields.

The suit as compromise~ and a decree was passed giving Smt. Mendra the nght of ownership to !th share in those two fields. Acco1ding to the plaintiff-respondents this share of Smt. Mendri was 2iftcd by her to the plaintiff-respondents by two g; ft deeds Exts. P-l and P-2 dated 3rd October, 1948 and 28th October, 1948. The title to the property to the extent covered by these two gift deeds was claimed by the plaintiff-respondents on the basis of those deeds.

In addition, a deed of 2ift Ext. P-3 was executed by Bhiwa himself in favour of the plaintiff-respondents on 2nd May, 1951. and this covered the entire property in respect of which sale-deeds were later executed by Bhiwa in favour of the appellant on May 13. 1951.

On the basis of this gift-deed, the plaintiff-respondents

claimc:d title to the entire property sold to the appellant by the two sale-deeds, so that claim in respect of part of the property was based on both the gift-deeds executed by Smt. Mendri, as well as the gift-deed executed qy Bhiwa.

Since the appellant came into possession under the two sale-deeds, the plaintiff-respondents brought a suit for declaration of thei! title and posession.

The trial Court held that the gift-cLeed Ext. P-3 executed by Bhiwa was fraudulent and, consequently, not binding on the appellant.

The gift-deeds Exts. P-1 and P-2 executed by Smt.

Menc'ri were held to be vaild.

The plea of the plaintiff-respondents that the sale-deeds Exts. D-1 and D2 in favour of the appellant were not genuine was rejected. In respect of the property gifted by Mendri, the trial Court further recorded the finding that Mendri had not lost her right prior to the execu- ; iop of the sale-deeds.

This finding had to be given, as the appellant relied on the fact that there were proceedings under section 145 of the Code of Criminal Procedure between Bhiwa and Smt. Mendri after the compromise in Bhiwas suit recognising Mendri's right to 1/4th share in the two fields. In those proceedings, the entire fileds were declared to be in possession of Bhiwa and a direction was made by the Magistrate to Mendri to file a suit for getting her 1/ 4th share partitioned. No such suit was filed within the period of three years as required by Article 47 of the India.n Limitation Act, 1908. It was, therefore, urged that Mendri lost her right to the fields, so that the two deeds of gifts executed by her in favour of the plaintiff-respondents could not convey any title to them.

Against this judgment tho~ trial Court, an appeal was filed hy the plaintiff-respondents, while a cross-objection was filed by the defendant-appellant.

The appeal and the cross-objection were heard by the Second Additional District Judge, Bhandara. The appeal by the plaintiff-respendents related to the property in respect of which their claim had been disallowed by the trial Court.

while the appellant in the cross-objection challenged the decree

in favour of the respondents in respect of 1/4 th share of Smt.

Mendri. The 2nd Additional District Judge dismissed the appeal of the respondents and allowed the cross-ob.iection of the appellant. The appellant's cross-objection was allowed on the ground that Mendri had lost her right to the property before executing

t'i~ gift-deeds in favour of the respondents on account of her failure to file a suit for partition or possession within three years

after the order of the Magistrate under s. 145 of the Code of Criminal Procedure.

The respondent's appeal was dismissed affirming the findings of the trial Court, but on two additional grounds.

One ground was that the gift-deed executed by Bhiwa in favour of the plaintiff-respondents was in fact ante-dated and had been executed after the 13th May, 1951, so that it was

fraudulent and was intended to defeat the sale in favour of the appellant. The second ground was that the suit of the plaintiffrespondents was barred by the principle of res judicata in view of an inter-parties judgment in Civil Suit No. 42-A of 1952 which did not exist during the pendency of the suit in the trial Court and was delivered while the appeal was pending in the appellate Court.

Against this decree passed by the first appellate Court, second appeal was filed before the High Court of Bombay. The High Court held that both the lower courts had committed an error in deciding the case on the .. ground of fraud or ante-dating in respect of the gift-deed of Bh1wa dated 2nd May, 195 I, becirnso no 1uch cue was p, ut forward In the pleadinp before the tri11l Court. The ftndlnp that the gift-deed wu fraudulent and ante dated w. ere 1et 1ulde ed the 1lttdeed wH, conHquently, held to be valid. On the quDAtlon ot "' Judlcata, the Hllh Court came to the view that the m11terl1l, which w111 placed before tho first appellate Court to decide thl1 qu111lon, wu not 1umclent, thou.ih the llrst appellate Court was justified in entertaining this plea, because the judgment in Civil Suit No. 42-A of 19~2 came mto existence for the first time during the pendency of the appeal.

Consequently, the High Court, while setting aside the decree passed by the first appellate court dismissing the respondents' suit, passed an order of remand permitting parties to make amendments in thefr. pleadings in respect of this plea of res judicata, and directing the trial Court to .consider-prayer for allowh1g" other amendments, but added a condition that amendments with respect to pleas of fraud, collusion or antedating in respect .of the gift deed dated 2nd May, 1951 executed by Bhiwa in favour of the respondents were not to be permitted. It is against this order of the High Court that the present appeal has been brought up to this Court by th~ defendant-appellant.

The main point urged on behalf of the appellant was that the High Court was not justified in setting aside the findings of the first appellate Court that the gift-deed dated 2nd May, 1951 was fraudulent and ante-dated, as there were sufficient pleadings to

jutify this point bing entertained by that Court. In support of this plea, our attention was drawn to paras 6 and 17 of th~ written statement of the appellant. In para. 6, the peading was that Bhiwa was all along in possession of the lands and the contentions of the plaintiffs to the contrary were denied. There was no valid transfer by Bhiwa before 13th May, 1951 in favour pf the plaintiffs as alleged. It w_as denied again that plaintiffs were in possession of the lands covered by the saleeds executed b, y Bhiwa in favour of the defendant, and a suit for mere injunction was incompetent. The pleading in para. 17 was that Bhiwa and

Mendri had been engaged for the past many years in litigation and the present plaintiffs had colluded With Bhiwa in seeking to set at naught the sale deed made by him in favour of the defendant which gave him a discharge of. his liability and a release of estate from debt validly taken by him.

Plaintiffs were thu:; not entiiled ito succeed. In the pleadings contained in these two paragraphs, we are unable to find any indication that the appellant wanted tG put forward the case that the gi.ft deed executed by Bhiwa was antedated and that, in fact this gift deed was executed after 13th May, 1951 and subsequently to the sale deeds in favOlff of the appellant. The collusion alleged in para. 17 did not purport to have any relationship with the de.e..d of gift.

That collusion between the plaintiff-respondents and Bhiwa was alleged to hve

been for the purpose of setting at naught the sale deed in favour of the appellant.

There is indication that even the parties . and the trial Court did not understand these pleadings as containing a plea that the gift deed was antedated and fraudulent in the sense of having been executed to defeat and delay the creditors of Bhiwa.

No issue was framed on the question of fraud or antedating.

Learned counsel for the appellant relied on issues 4, 12 and 13 to urge that such pleas were covered by the issues.

These \ssues are as follows:-

( 4) (a) Whether on 2-5-1951, Bhiwa made the gift of 5.66t acres of land held in malikmakbuza rights and 2.8 acres of occupancy E land in favour of the plaintiff ?

(b) Whether Bhiwa executed the gift deed in favour of the plaintiff ?

( c) Whether the plaintiffs accepted the gift and acquired possession of the property '?

( J 2) Whether the 'plaintiffs have brought this suit in collusion with Bhiwa ? If so, its effect ?

(13) Whether on 13-5-1951, Bhiwa was not the owner of the fields and he could not convey good

title to the land in favour of the defendant ?

None of these issues appears to us to contain any suggestion that the gift deed by Bhiwa was executed to defeat and delay the creditors, or it was antedated.

Issue 4(!J.) only challenges the execution of the gift itself; but there is no suggestion that the execution was either antedated or fraudulent.

Issue No. 12, which seems to have been framed on the basis of the pleadings in para. 17 of the written statement, specifically charges the plaintiffs with bringing the suit in collusion with Bhiwa.

The

collusion mentioned in para. 17 was thus interpreted to refer to. collusion in bringing the suit and not in execution of the deed of gift Ext. P. 3. Issue No. 13 only challenges the title of Bhiwa at the time of execution of the sale deeds in favour of the appellant and can, therefore, have no relation at all to the fraud or antedating in respect of the gift deed Ext. P-3.

It is, tfius, clear that the pleadinj!s were never interpreted up to the stage of the trial as containing any allegation of fraud or antedating in relation to the gift deed Ext. P. 3.

Even in the course of evidence, no questions were put on behalf of the appellant to the witnesses

of the plaintiffs suggesting such fraud or antedating, though questions, were asked in respect of the proper and valid execu" tion of me. gift deed.

It appears that, for the first time, thll question of the gift deed being fraudulent must have been raised before the trial Court in the course of arguments after parties had already concluded their evidence, because the trial Court, in the judgment dealing with issues Nos. 12 and 13, proceeded to record a finding that the gift deed Ext. P .-3 was executed by Bhiwa fraudulently in order to defraud his creditors.

On the face of it, there! was no justification for the trial Court to go into this question and record this finding wfien there were no pleadings in respect of it and, even during the course of trial, evidence was not led with the object of meeting such a plea. The first appellate Court committed a similar error in affirming this finding recorded by the trial Court. In fact, it proceeded to commit a greater error in going into the question whether the gift deed was antedating having been executed after 13th May, 1951.

Such a. plea of antedating, it seems, was raised for the first time before the appellate Court in the course of arguments. There is nothing on the record to. show that any such case was put forward at any earlier stage. The consequence is that the plaintiff-respondents had no warning that such a case was being, put forward and had no opportunity of tendering evidence to meet these objections.

In respect of the plea of fraud, evidence could have beeJI given that Bhiwa had oG, er properties, so that no question of defrauding the creditors could arise.

Both those "ourts also lost sight of the fact that, on the record, the appellant was shown to be the only creditor of Bhiwa; there were no other creditors.

As a creditor, he could not be defrauded, because his loans were secured by the mortgage deeds dated 23rd March, 1949 and 26th June, 1949. A gift by Bhiwa in respect of properties already mortgaged could not in any way defeat or delay the mortgagee's right, because the donee under the gift deed could only take the properties subject to the mortgages. The transfer by the deed of gift could not in any way affect the mortgagee's rights under the mortgages.

The finding about fraud recorded by the trial Court as well as the appellate Court was therefore, on the ·

-face of it, totally unjustified, and the High Court was right in A holding that they committed this error, and setting aside their Jindings.

So far as the plea of antedating of the gift-deed Ext. P-3 accepted by the appellate Court is concerned, the position is still worse. There was no suggestion at all that the gift deed was antedated either in the pleadings or in the course of evidence.

No such suggestion was put forward to any witness of the plaintiff-respondents, nor was any statement made in this behalf by any witness of the appellant.

The point was not even argued before the trial Court. It was not mentioned in any form before the appellate Court. It appears to have been raised £or the lint time In the course of 11r.gument1 In the 11ppelll, without notice to the other p11rty.

Th11 point w1111 111111ln decided on the b111l1 of the evidence which enme In lneldent11lly wlwn p11rtle1 w@re ex11mlnlnA wltnel!e* In re1peet of the !HUH fr11med by thll 1rl11!

Court. Only two clrcum1hmee1 were relied upon by the 11ppell11:e Court to record this finding of antedating, One was th11t the gift deed was registered on 23rd August, 19S 1, even thoug)l it was executed on 2nd May, 1951, and no explanation was forth coming for this inordinate delay.

The second circumstance was that the petition-writer, who scribed the deed of gift, did not produce his register of documents required to be maintained by him under the rules, which was held to raise a presumption that, if that register had been produced, it would have shown that the gift deed was not written out on 2nd May, 1951.

So far as the first circumstance is concerned, since no issue w~~ framed. no occasion arose for the plaintiff-respondents to give evidence to explain the delay in registration. No question was put to any witness of the plaintiff-respondents why this delay had occurred The plea depended on questions of fact in respect of which evidence could have been given and facts elicited.

Such a plea could not be considered for the first time at the appellate stage when the party concerned had no earlier warning and did not have any opportunity to give evidence explaining the reason for the delay.

The second circumstance for holding against the respondents appears to be based on a misunderstanding of the position of law.

The register of the petition-writer was not a document maintained by or in the possession of the respondents. Tpey were not tesponsible for its non-production.

No presumption .could be raised against them for failure of its production by the petition-writer. At best, the non-production could affect the value of the evidence of the petition-writer. Even if his evidence was not relied upon, no finding of antedating could be given when there was no assertion and no evidence on behalf of the appellant to show that the gift deed had been ante-dated and had been executed after 13th May, 1951.

The finding

A recorded was clearly without any evidence altogether. The High Court was, therefore, quite correct in setting aside this finding also.

Counsel for the appellant relied on four decisions of this Court in resoect of his argument that the High Court was not justified in rejecting the case of fraud and antedating, which had been accepted by the first appellate Court, merely on the ground of want of pleadings. The first case referred to is Kidar Lall Seal and Another v. Hari Lall Sea/(1), where Bose, J., with whom Fazl Ali, J. agreed, said :-

'I would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side,

howevr clumsily or inartisticaUy the plaint may be worded. In any event, it is always open to a Court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs."

The principle enunciated has no applicability to the facts of the case before us.

As we have already indicated, the pleadings did not contain any reference at all to the question of the sale deed being frauduient or antedated.

Instead of the substance of the pleas being there, there was no hint at all of these objections in the pleadings.

The next case relied upon is Nagubai Ammal & Others v. B. Shama Rao & Others( 2 ). That case related to a plea of Us pendens.

The argument was that no plea of lis pendens was taken in the pleadings and, consequently, the evidence bearing on that question could not be properly looked into, and no decision could be given based on the documents that the sale was affected by Us.

The plea was not accepted on the ground that:

"that rule has no application to a case where parties go to tnal with knowledge that a particular question is in issue, though no specific issue has been framed G thereon, and adduce evidence relating thereto."

In the case before us, we have already shown that parties did not go to trial on the issue of fraud and antedating in respect of the gift deed Ext. P-3, nor did they adduce evidence relating to any such pleas.

The third case relied upon by learned counsel is Kunju Ka&avan v. M. M. Philip, l.C.S. and Others('). In that H case, a contention was put forward that a notification or depzy; i-

(1) [19521 S.C.R. 179.

(2) [1956] S.C.R.451.

tiort of witnesses could not be jooked into when there was no proper plea or issue about the exemption.

The question was whether a particular notification had exempted one Bhagavathi Valli from the provisions of Part IV of the Ezhava Acl. The

<:; ourt held that this question was properly gone into and expressed, its views in the following words :-

"We do not think that. the plaintiff in the case was taken by surprise.

The notification must have been filed with the written statement, because there is nothing to show that it w_as tendered subsequently after obtaining the orders of the court.

The plaintiff was also cross-examined with respect to the address of Bhagavathi Valli, and the only witness examined on the side of the defendant deposed about the notification and was not cross-examined on this point.

The plaintiff did not seek the permission of the court to leaJ evidence on this point.

Nor did he object to the reception of this evidence. Even before the Oistrict Judge, the contention was not that the evidence was wrongly received without a proper plea and issue but that the notification was not clear and there was doubt whether this Bhagavathi Valli was exempted or not.

The parties went to ttial fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not. The absence of an issue, therefore, did not lead to a mis-trial sufficient to vitiate the decision."

Again, it is manffe$t that, in that case, parties had gone to trial consciously on that question and had given evidence, while the only omission was in the pleadings.

In the case before us, we have alrt:ady held that there was noi merely omission in the pleadings, but, in fact, the question of fraud and antedating was never the subject-matter of any evidence aild no party was ever conscious in the trial that such questions are going to be decided by the Court. The last case relied upon is Union of .India v, M/s.

Khas Karanapura Colliery Ltd.('). In that case, this Court held that certain processes ancillary to the getting, dressing or prep!lfa tion for sale of coal obtained as a result of the mining operations were being carried on.

This conclusion was resisted on the. plea that, in the writ petition, no specific case was pleaded under the second part of sub-s. ( 4) of section 4 and, therefore, it was not open for the Court to consider that aspect of the case.

The Court said :-

"We are unable to accept this contention. It is true that the pleadings on this point are rather vague; but

D ,

MOHAN LAL .V,.ANANDJBAI, (BharglJVll; /,)

all the facts neice$sary for determining that question are before the court. That aspect of the case appears te> have been fully argued before the High Court without any objection. The High Court has considered and decided that question. Hence the appellant cannot now be permitted to contend that for want of necessary pleadings that question cannot be gone into."

The circumstances of that case are again quite different from those in the case before us. In that case, all the facts necessary for determining the question were before the Court, while, in the present case, such facts could not come in, becaljse the parties, at the time of trial, were not aware that these pleas of fraud and antedating are going to be considered by the courts.

None of the cases r.elioo upon by learned counsel affects the view taken by us that, in the present case, the High Court was fully justified in setting aside the findings of the appellate Court on the question of fraud and antedating.

I Learned counsel for the appellant also referred to the plea of limitation in respect of the right of Smt. Mendri through whom also title was claimed by the plaintiff-respondents in respect of some of the properties in suit.

That plea becomes immaterial because, even if the gift deeds executed by Smt. Mendri are disregarded, the title to those properties was acquired by the respondents through the gift-deed Ext. P-3 executed by Bhiwa himself and the; oorlier title claimed need not, , therefore, be gone into.

"- Lastly, counsel urged that now that the suit has been remanded to the trial Court foil. reconsidering the plea of res-judicata the appellant should habeen given an opportunity to amend the wr1tten statement so to include pleadings in respect of the fraudulent nature and an ting of the gift deed Ext. P-3. These questions having been decided by the High Court could not appropriately be made the subject-matter of a fresh trial. Further, as pointed out by the High Court, any suit on such pleas is already time-barred and it would be unfair to the "plaintiff-respondents to allow these pleas to be raised by amendment of the written statement at this late stage.

In the order, the High Court has stated that the juc1gments and decrees and findings of both the lower courts were being set aside and the case was being remanded to the trial Court for a fresh decision on merits with advertence to the remarks in the judgment of the High Court. It was argue.cl by learned counsel that, in making this order, the Hih Court has set aside all findings recorded on all issues by the trial Court and the first appeJlate Court. This is not a correct int"1"- pretation of the order. Obviously, in directing that findings of

940 SUPll.JlME COUJ.T 11.EPORTS

[ 1971] 3 S.C.R.

both courts are set aside, the High Court was referring to the points which the High Court considered and on which the High Court differed from the lower courts. Findings on other issues, which the High Court was not called upon to consider, cannot be deemed to be set aside by this order. Similarly, in permitting amendments, the High Court has given liberty to the present appellant to amend his written statement by setting out all the requisite particulars and details of_ his plea of res judicata, and has added that the trial Court may also consider his prayer for allo•ving any other amendments. On the face of it, those other amer.dments, which could be allowed, must relate to this very plea of res judicata.

It cannot be interpreted as giving liberty to the appellant to raise any new pleas altogether which were not raised at the initial stage. The other amend1nents have to be those which are consequential to the amendment in respect of the plea of res judicala. ·

In support of the argument that the appellant should . be allowed to amend his pleadings in respect of froud and antedating also, reliance was placed on the decision of this Court in L. I.

Leach and Compa~ Ltd. v. Jardine Skinner and Co.( 1), where an amendment was allowed at a very late stage by this Court.

The Court held :-

"The plaintiffs seek by their amendment only to claim damages in respect of those consignments. The prayer in the plaint is itself general and merely claims E damages.

Thus, all the allegations which are necessary for sustaining a claim for damages for breach of contract are already in the plaint. What is lacking is only the allegation that the plaintiffs are, in the alternative, entitled to claim damages for breach of contract by the defendants in not delivering the goods." F

The dictum in that case has no application to the case before us in which there are no allegations or pleadings in the written statement in respect of the new pleas sought to be raised by amendment. Reference was also made to the decision of this Court in A. K. Gupta and Sons v. Damodar Valley Corporation(') where the principle laid down was that : G

"the general rule, no doubt, is that a party is not allowed by amendment t<> set up a new case or a new cause of action particularly when a suit on the new case or cause of action is barred.

But it is also well recognised that where the amendment does not consti; tute the addition of a new cause of action, or raises a H different case, but amounts to no more than a different

(I) [1957] S.C.R. 438.

(2) [1966] I S.C.R. 796.

or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation."

In the case before us, this principle, instead of helping the appellant, goes against him. In this case, the pleas of fraud and ante- B dating in respect of the gift deeld Ext. P-3 raise entirely new causes pf action and a case quitci different from that pleaded in the original written statement. It is not a case of a different or additional approach to facts already given in the written statement. These cases do not, therefore, help the appellant and would not justify our permitting amendment of the written statement C at this late stage by varying the order of the High Court.

The appeal fails and is dismissed with costs in this Court ..

V.P.S.

Appeal dismissed.

LAL

ANANDIBAI & ORS

March 3, 1971

M. SHELAT

I. D. DUA

V. BHARGAVA, JJ.

2nd May 1951

13th May, 1951

23rd August 1951

May 13, 1951

HELD : (I) (a) The pleadings in the written statement did not indicate that the appellant put forward the case that tl'gift deed was executd by the father after May 13, 1951 and that it was ante-dated.

[1964] 3 S.C.R. 634

(1968] 3 S.C.R. 784

(1966] 1 S.C.R. 796

M. N. Phadke

L. Roshan

H. K. Puri

Bhargava

Mohan Lal

Bhiwa

23rd March, 1949 and

26th June, 1949

Bhiwa

Mendra

Barshya

20th Ju:y, 1921

Mendri

2nd May, 1951

May 13. 1951

section 145

Code of Criminal Procedure

Bhiwas

Article 47

Limitation Act, 1908

s. 145

Code of Criminal Procedure

High Court of Bombay

23rd March, 1949

Bose

Fazl Ali

Bhagavathi Valli

section 4

MOHAN LAL .V,