' "

BHIMRAO ANNA INGAWALE AND OTHERS

STATE OF MAHARASHTRA

April 2, 1980

(R. S. PATIIAK AND A. D. KOSHA!. JJ.j

ft/tdian P<nal Code 1860 (XLV of 1860) Ss. 302, 149 & 148-AnimosUy and enmity between the six accused and the two deceased [assault by the party of tlte accused on the deceased and their brothers-Party of the accused

whether aggressors and have acted in exercise of the right of private defenceconPlclicm-whdh<r valid.

Appoilants Nos. I to 6 were charged and convicted for two offences under oection 302 read with section 149 and one under section 148 of the Indian Penal Code for having caused the death of two persons,

Appellants Nos. 1 to 4 and 6 are interrelated, while appellant No. 5 is their friend, and the two deceased are brothers. Appellants Nos. I to 4 and 6 lived jointly in a house which abutted on a road 14 feet wide. Opposite their house lay the one belonging to the two deceased. The waste water emanating from the house of the appellant No. 1 had been flowing towards the road and seeping into the western wall of the house of the deceased. This resulted in inimical relation between the two parties. Animosity also prevailed among the partieo on account of the fact that the family of th~ deceased had earlier sold

to a !bird person some land which they wanted to repurchase but were thwarted in their designs by the appellants who were instigating the vendee not to re-sell the load to the deceased.

The prosecution alleged that on the fateful day, in the morning there was a dispute and altercation between the two deceased and the appellants.

The incident was noticed by PW 20 who intervened and separated them di•-armed the two deceased and threw away the sticks which he snatched from them. \ At about 2 P.M. on the same day all .the appellants entered the house of the ' r deoeascd armed with axes and sticks dragged out the deceased on the road and started beating them with their respective weapons, PW 10 and PW 11, the wives of the deceased intervened and they also received injuries at the hands of the appellants. In the meantime PW 13, PW 14 and their brother Jayakar who came to the place of occurrence were beaten by the appellants who thtnafter mllde gOOd their escape. The four injured brothers and the two ladies were removed to the Civil Hospital. The two deceased succumbed to their injuries later.

Meanwhile appellant No. 1 reached the police station and he complained

to the sub-inspector (P.W. 24) that he and his family members had been attacked by the party of the deceased, , On learning that the opposite party had arrived at the local Civil Hospital, the sub-inspector reached the hospital and

recorded the statement (Ex. 55) of P.W. 12. This formed the basis of the B first information report registered at the police station. On returning to the police stat10n the sub-inspector arrested appelkmt No. I.

The case of the appe11ants was that feelings of enmity existed between the two opposing families for two or three years prior to the date of the occur rence, that on that date there was exchange of abuses between appellants Nos. 1 to 3 on the one hand and the deceased on the ot':her when the latter were about to assault the former but could not do so on account of the intervention of PW 20, that soon afterwards the two deceased and their three brothers assaulted appellants Nos. 1 to 4 with 's:ticks and axes at the latter's house when some of the as.sailants were disarmed and beaten back, tbild that appellanlq Nos. 4 to 6 \Vere not present at the scene of the occurrence and h!d been involvCd in the case merely because they were related to the other appellants by ties of blood or friendship.

The Sessions Judge was of the opinion. that the incident in which the two contending parties exchanged abuses and which came to a close .with theintervention of PW 20 provided the motive for the ossault in which the two dereaeed lost their Jives and that the eye-witnesses had given details of the occurrence which were omitted from their statements made to the police but that no significance could l:>e attached to this aspect of the matter. He further held that the occurrence took place on the road lying in between the respective houses of the parties, that the pl!rticipation of all the acCUBed in the occurrence was natural El.nd probable, that the party of the accused were able to inflict serious injuries on their opponent~ and themselves escaped with core1paratively a mild beating and th&t therefore, there was no right of private defence available to the appellants.

On this finding the Sessions Judge con victed and sentenced the six appellants.

The appeal to the High Court was heard by a Division Bench, but on eccount of difference of opinion among the Judges. the matt.er was referred to a third Judge and the appeal was dismissed in accordance with the majority opinion. All the three Judges re-appraised the evidence and while the majority arrived at th:e same conclusion as the Sessions Judge, the third Judge come to the finding that there was no reliabl~ evidence to support he prosecutlon case that the accused were the aggre.s_, ors.

In the appeals to this Court on the questions: (a) Whether the prooecution had proved beyond reasonable doubt that the party of the appellants were tbe

aggre&&0111 and whether it wii.s made out from the records that the latter mllY . have acted in exercise of the right of private defence, and (b) whether the --~ ' participation of all the appellants in the occurrence was satisfactorily made out;

HELD: (a) (i) The consideration of the ocular evidence coupled wiUI the testimony of PW-20 and the circumstantial evidence especially the medical part of it, prove beyond reasonable doubt that the party of the appellants were the

aggressors. [323EJ

(ii) The occurrence admittedly took place on the road in between the respective houses of the deceased and the appellants which is fully made out f:tiom the deposition of PW 20 who is no doubt a wholly independent and reliable Witness.

He attracted to the place of occurrence by a not"te which reached him in his field after he had gone there subsequent to his witnessing the three brothe"' of the deceased running towards their house. The circumstance

that their other two injured brothers were also found lyiii.g on the road lends further strength to the conclusion that the occurrence took place on the road

lllIIMRAO ANNA V. MAHARASHTRA 311

itself and not at the house of the appellants. It may also be safely 1168umed, A apart from the fact that all the prosecution witnesses say so, that PW's 12, 13 and Jayakar were not with the deceused at the inception of the fight and were, on the other band, working in their fields. [320 D-G]

(iii) H the party of the deceased were the aggressors and had made a concerted attack on the appe11ants who Were taken unares there is no reason why the former should !:lave conie out second best in the combat. The fact B that practically all the injuries received by the deceased were located in the head region and were inflicted with great force lllllkes it highly probable that it WM they who were taken unawares and had to bear the brunt of the attack which they had perhaps no means to repulse. (321 Bl

(iv) The fact that the women-folk of the deceased were elso injured during the oceumncc makes it probable that the ladies had to intervene because the fight WM unequal and their respective husbands found it difficult to cope with C

i~ [321 GJ

( v) Another inference which may well be drawn from the consequences of tbe combat is that PWs 12 and 13 and their brother Jayakar probably reached the place of occurrence while their brothers were being belaboured and that it wu a-t this stage that the three new--comerB entered the arena and took up cudgels on behalf of their hapless family members. [321 Dj

(vi) It is not unoften that improvements in an earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. But that doell not mean that falsity of testimony in one material particular would ruin it from beginning to _end.

On the other hand the circumstance will be a good nuon merely for the court to be put on gnard and sift the evidence

with ectnordinary caution and to accept those pOrtions of -it which appear E fully trmtwortby either intrinsically or by reason of corroboration from other

tru!lworthy sources. [321 Gl

(vii) The road has a width of only 14 feet and if two opposing parties .consistiq in all of six to ten persons, engage themselves in violence against each other, f.he exact place where the members of each would be Injured may not melJ1 BDything especially if one of the parties is tnkcn unawares and is F unarmed. f323 Bl

In the instant case, none of the injuries suffered by the appellants (except for one) was located on a vital part and all of them without exception were

simple In nature, the injuries on the two dec.etlfSed persons being in contrast practically all deadly. 1323 DJ

(b)(I) Appellants N06. 4 to 6 are entitled to the benefit of doubt in the 111atter of their participation in the occurrence. [324 BJ

(b )(ii) Appellants Nos. I to 3 aro proved beyond reasonable doubt to 'have taken part in the fight.

They ll<e not merely named in that behalf by the eye-witness but admit thefr participation in the occurrence which is further aasured by reason of the fact that all three of them were found injured immediately thereafter. The same is not true of the other there who have denied

tlaoir preoence at the time and place of_ the occurrence and about whose parti- .ci-paUoa. in the fight no other assuring factors is forthcoming. [323 Gl

(iii) According to PW 20, appellant No. 4 was present at the scene when the abuses were exchanged but that fact is no guarantee of his participation in the occurrence which took place t11bout a couple of hours later. No incongruity results from the exclusion of appellants Nos. 4 to 6 from the fight becai.J.se the other three appellants would have as effectively caused all the injuries found on the two deceased and the two ladies all by themselves a. if they were caused by them with the .. sistance of appellants Nos. 4 to 6. [323H-324Al

(c) The offence under section 148 of the Code falls to the ground with the acquittal of appellant Nos. 4 to 6, and so does that under section 149 thereof.

The two offences of murder were committed by appellants Nos. 1 to 3 in furtherance of their common intention so that each one of them is liable to conviction on two counts under section 302 read with section 34 of the Indian

Penal Code. [324C-D!

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 349 o[ 1979.

Appeal by Special Leave from the Judgment and Order dated 27/28-9-1977 of Bombay High Court in Criminal Appeal No. 593/76.

S. D; Dashme,

V. N.

Ganpu'e, Mrs. V. D. Khanna, C. K Ratnaparkhi and Miss Geeta Sharma for the Appellants.

M. C. Bhandare and M- N. Shroff for the Respondent.

The Judgment of the Court was delivered by

KosHAL, J. This apppeal by special leave is directed against E a judgment dated 27th/28th of September, 1977, of the High Court of Maharashtra npholding the conviction of the six appellants recorded by the learned Session; Judge for two off, nces under section 302 read with section 149 and of one under section 148 of the Indian Penal Code, the sentence awarded being imprisonment for life on each of the first two counts and of rigorous imprisonment for one year on the third F with a direction that the sentences shall run concurrently.

The first appeal in the High Court was originally heard by Vaidya and Sawant, JJ., who differed with each other on the judgment to be rendered, Vaidya, J., holding that the appeal merited dismissal and Sawant, J., being of the opinion that it deserved acceptance in full.

The case was therefore laid under section 392 of the Code of Criminal Procedure before Apte, J., who concurred with Vaidya, J., so that the appeal stood dismissed by the impugned order.

2. Certain facts are not in dispute and m.ay be stated at the outset The occurrence took plac, on the !Ith of Novomber, 1974, in village H Kole to which all the ap"dlants except Kha<haba (appellant No. 5) belong, Appellants Nos. I to 4 and 6 live join.tly in a house which abuts on a road 14 feet wide. Opposite that house lies the one belong- ·

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BH!MRAO ANNA v. MAHARASHTRA (Koshal, I.) 313 . ·: ';'!. • .. ·;,

ing to the two unfortuqate persons who lost their lives as a result of A the occurrence which is said to have taken place in consequence of inimical relations between the accused and the opposite party. The waste water emanating from the house of appellant No. I had been flowing towards the other side of the road and seeping into the western wall of the house of the deceased. This was one of the factors leading to animosity between the parties, another being that the family B of the deceased had earlier sold to a third person some land which they wanted to re-purchase but were thwarted in their design by the accused who were instigating the vendee not to re-sell the land to the deceased.

3. The deceased were related to five of the eye witnesses as would C appear from the following pedigree-table ; Anandrao

Abasaheb (eye

witness (PW-19)

Shripati D

Nivas Balasa.heh (deceased) (deceased) =Lakshmi =Droupadi (eye witness (eye witnegs

PW-10)

PW-II)

Bhimrao (eye witness

PW-12)

Uttam (eye witnes&

PW-13)

Jayakar (eye witness not produced)

The relationship inter se between accused-appellants Nos. J to 4 and 6 is shown in the table below along with the weapons of offence said to have been wielded by each of them and an absconding accused during the occurrence :

Anna (appellant No. 2stick)

Bbimrao (appellant No. I-axe)

Banda alis Man1ti (appellant No. 3-stick) Ki.,;,, (appellant

No.4-axe)

Dhondiram (appellant No. 6-stick)

21~189 SCI/80

Sham'rao (absconding accused-stick)

-·· ' 314

SUPREME COURT J.IPCJRTS

[1980] 3 S; C.R.

A Khashaba accused No. 5 is sai<; I to be a. friend_ of the family of the --t

oth-er accused and. belongs to anOther village. He was said to be armed with a stick at the time of the occurrence. ~

4. The proseeutiOn case niay be stated-thus. On the fateful day Nivas deceased left his house at about JO A.M. for Karad where he wanted to have himself medically checked up. He returned home at about midday and told his wife that he had been driven back by Anna appellant No. 2. By then Balasaheb deceased also came to hls house from the sugar factory where he was working. It was at this juncture that the two brothers heard abuses being hurled at them by all the accused and after emerging from their house picked up two small sticks and went towards the accused. A scuflle was imminent between the two contending parties when Bhimrao Kadam PW-20 who hails from another village lying about a mile away and who was then returning home from his field intervened, separated them, disarmed the two deceased and threw away the sticks which he snatched from them before continuing his journey.

At about 2 P.M. all the accused entered the house of the deceased, armed as aforesaid, dragged them out of it on to the road and started beating them with their respective weapons. Lakshmi PW-10 and Droupadi PW-11 intervened and received injuries at the hands of the accused. In the mean-time Bhimrao PW-13, Uttam PW-14 and their brother Jayakar who had been working in their field and were informed by a boy about the assault on the deceased, came running to the place of occurrence but they too were beaten up by the accused who then made good their escape.

Jayakar brought a motor vehicle from lslampur and took his four _ injured brothers as well as the two ladies to the Civil Hospital there. ---,- In the meantime Bhimrao appellant No. 1 reached police station Islampur whete he complained to Police Sub-Inspector Pandurang that he (appellant No. I) and his family members had been attacked by the party of the deceased. On learning that the opposite party had arrived at the local Civil Hospital, the Police Sub-Inspector reached the Hospital at about 8 P.M. and recorded the statement (exhibit-55) of Bhimrao PW-12 which forms the basis of the formal first information report registered at the police station.

Under the advice of the Medical Officer, Islampur, the injured left the same evening for the Civil Hospital at Sang!i on the way to which Nivas and Balasabeb expired.

On return to the police station Pandurang PW-24 arrested Bhimrao appellant No. !.

1 l

BHIMRAO ANNA V, MAHARASHTRA (Koshal, /,) 315

Lakshmi PW-10 was exanlined on the date of the orourrence itself by Dr. Bhaskar PW-17 and was found. to haye in the web connecting the right thumb and the index finger a muscle-deep incised wound having the dimensions l"x !"· Droupadi PW-11 was examined by another doctor on the same day but she was1not produced at the trial for the reason that she had in the mean-time been transferred to Nagpur. She was examined again on the 18th of November, 1974, by Dr. Shridhar PW-14 who found that on the mid-outer aspect of her left thigh was located a blue-black discolouration having a probable duration of eight days.j

Bhimrao PW-12 was examined by Dr. Kantilal Shah PW-16 on the 11th of November, 1974, at the Civil Hospital, Sangli, and was found to have suffered six injuries consisting of a scalp-deep incised wound located on the central parietal area and having the dimensions 3" x !", two contused lacerated wounds located over the .ame area, two contusions and an [abrasion. The same doctor examined Uttam

PW-13 on the same day when the latter was found to have on his person five injuries consisting of two contused lacerated wounds located in the head and three contusions on other parts of the body. - Appellants Nos. I to 3 were examined by Dr. Sh, ridhar PW-14 -on the !Ith of November, 1974 atthe Civil Hospital, Islampur. Bhim - rao appellant No. I had on his person three injuries consisting of a contusion on the right forearm having the dimensions 8 cm. x 5 cm., a weal mark on the right shoulder iblade and an abrasion. Anna appellant No. 2 was found to have suffered eleven injuries consisting of six lacerated wounds, two contusions, two weal marks , and one abrasion, only one of them, i.e., a lacerated woµnd, being located on a vital part (the head). Maruti appellant No. 3 had an incised and a lacerated wound on the head and another lacerated wound, two weal mar:ts a11d a contusion on other parts of the body. ,

The injuries so far described and found on various members of the opposing parties were presumably all simple in nature. '

Dr. Digambar Joshi PW-15 carried out the post 11Wrtem examination ofthe two dead bodies on the 12th of November, 1974. Nivas deceased was found to have suffered four external injuries two of which were bone-deep contused lacerated wounds located iu the head region.

According to the doctor the scalp was all •boggy' and the injuries were 'fresh'. The internal damage to the head, the doctor noted, consisted of an extensive haematoma on the scalp; multiple fractures of the left temporal and parietal bones, fracture of the right frontal blade, fracture of the middle cranial fossa on the right side and extradural haema-

~:-'•'.'

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316 SUPREME COURT REPo:RTS

[1980] 3 S.C.R.

A. toma on the right fronto-parietal region, the left temporal region and the left fronto-parietal region.

In the opinion of the doctor the deceased must have become unconscious immediately after the receipt of the injuries which were inflicted with force and were sufficient in the ordinary course of nature B to cause death.

Balasaheb deceased was found by the same doctor to have suffered four external injuries two of which were located in the head re gion, one being a contused lacerated wound and the other an incised wound. The right temporal region, according to the doctor, WlJS C 'boggy' and the injuries were 'fresh'. The internal damage to the head, the doctor noted, consisted of an extensive haematoma under the scalp, numerous fractures of the right and left frontal bones, right and left parietal bones and the right temporal bone, congestion of.the cortical vc; ssels and bleeding in the brain substance. The right frontoparietal region was found by the doctor to be soft and lacerated. The D brain-matter, according to him, was coming out. He was categorical in stating that the death mnst have been instantaneous and that the injuries were individually sufficient to cause death in the ordinary course of nature.

5. 24 witnesses were examined at the trial in support of the prosecution case. They included five eye-witnesses, namely, Lakshmi PW-10, Droupadi PW-11, Bhimrao PW-12, UttamPW-13 and Abasaheb PW-19, all of whom gave substantially the same version of the occurrence as has been set out above. Bhimrao Kadam PW-20 deposed that at about noon on the fateful day he was returning home from his fields which lie only at a distance of about -250 feet from the houses of the parties, when he found appellants Nos. 2, 3 and 4 exchanging abuses with the two deceased who were armed with sticks. According to the witness he disarmed the deceased and threw away the sticks ·-~ on to the roof of their house. The witness claimed to have gone away after advising both the parties to settle their disputes amicably. He then testified to having met Bhimrao PW-12, Uttam PW-13 and.their . brother Jayakar when he returned to his field the same day. He further stated that they were running but were not armed. The rest of his testimony-in-chief may be .summarised thus :

"I again heard shouts from the houses of the parties.

I again came back to the road in between their houses and saw that Nivas, Balasaheb, Uttam and Bhimrao had injuries and they were lying on the road. All these injured were . unconscious and their clothes were stained with blood.

f! i .

BHIMRAO ANNA v. MAHARASHTRA (Koshal, J.) . 317

Lakshmi and Droupadi were by their side. The accused were not present at that time. This was at about 2 30 P.M. or 3 P.M.".

J When asked in cross-examination as to what was the exact place where he met the brothers of Nivas, he replied : t "I immediately started to my field and I met them • at a distance of about 50 or 100 feet. I again heard the noise after a very short time after reaching the field."

The witness was questioned about what he saw on reaching tb, e'place -Of occurrence for the second time and what transpired later. He stated : 6

"Uttam and Bhimrao were lying on'the road near the door of the house of the accused. Nivas was lying .in the middle of the road opposite to the door of the accused.

There were blood stains on the road at the place. Jayakar was present at the scene of offence and I told him to inform D the police at Islampur. Afterwards l went to the house of the accused. I found that there were injuries on accused No. 2 Anna and accused No. 3 Banda. Accused No. 2 Anna was lying unconscious. Banda told me that Nivas and all his brothers came to their house and assaulted them."

The last question put to him in cross-examination was whether it was true that Bhimrao PW-12, Uttam PW-13 and their brother Jayakar were armed with sticks and axes. He replied; that they had something (in their hands) but that he could"not say if they had sticks and axes.

6. The defence case may. be summed up as follows. Feelings of animosity existed between the two opposing families for two or three

yoers prior to the date of the occurrence as alleged y the prosecution. On that date there was an exchange of abuses between appellants Nos. 1 to 3 on the one hand and the deceased on the other when the latter were about to assault the former but could not do so on account of the intervention of Bhimrao Kadam PW-20. Soon afterwards the two deceased and their three brothers assaultedappellants Nos. I to 3 with sticks and axes at the latter's house when some of the assailants were disarmed and beaten back. Appellants Nos. 4 to 6 were not present at the scene of occurrence and had been involved in the case merely beoause they were related to the other appellants by ties of blood or friendship.

\ .

,.. ...

7. The learned Sessions Judge was of the opinion' that the incident In which the two contending parties exchanged abuses and which came

to a close when Bhimrao Kadam PW-20 intervened provided the motive for the assault in which the two deceased lost their lives. Wlu1c examining the ocular testimony he arrived at the findings detailed below;

(a) That part of the prosecution story acc6rding to which the two deceased were dragged out of their house by the seven accused was never put forward during the investigation and was concocted to serve as an improvement over the version given earlier.

(b) The eye-witnesses had given details of the occurrence which were omitted from their statements made to the police but no aignificance could be attached to this aspect of the matter. ·

. (c) Lakshmi PW-10, Droupadi PW-11, Bhimrao PW-12 and Uttam PW-13 were certainly present at the occurrence as is made out

 D from the fact that they were found to have injuries on their pereon immediately thereafter. Assurance to the presence of Abasaheb.

PW-19 at the time and place of occurrence is also available in the fact that his house adjoins that of the deceased.

(d) The incident in which abuses were exchanged provided the E motive for the party of the accused to assault their opponents rather than the other way round, because the deceased had really had an upper hand in that incident. It would also be natural, in this view of the matter, for appellants Nos. 1 to 3 to summon help and open a concerted attack. 1he participation of all the accused therefore in the

occurrence was natural and probable.

(e) The occurrence took place orl the road lying in between the~-- ' respective houses f the parties. I

(f) 'the circumstances that two persons from the side of the eyewitnesses lost their lives and that four other eye-witnesses belongiiig to the same family received injuries are sufficient to suggest that it W86 the party of the appellants who were the aggressors even though appellants Nos. 1 to 3 were also injured during the occurrence; and the fut that all the eye-witnesses were unreliable in relation to the dragging part of the prosecution story is immaterial, their testimony being otherwise credible. In this connection it has to be borne in mind that the party of the accused were able to inflict seriOus injuries on their opp&- nents and themselves escai>ed with comparatively a minor beating.

There was thus no right of private defence available to the accused.

,...,, .

.....

t-· . ' "'\_ '•i

_:-,·

l BHIMRAO ANNA v. MAHARASHT.RA (Koshal, /,) 319

(g) Bhimrao PW-12 and Uttam PW-13 reached the place of occurrence after the fight between the party of the accused on the ono hand and the two deceased on the other was already over and that in respect of the injuries caused to Lakshmi PW-10, Droupadi PW-11, Bhimrao PW-12 and Uttam PW-13 the party of the appellants had a right of private defence. It was in these premises that the learned Sessions Judge convicted and sentenced the six appellants as aforesaid and acquitted them of the minor charges which had been framed against them in relation to the injuries caused by them to the four eye-witnesses just above named.

8. In the High Court all the three judges who considered the appeal fully reappraised the evidence and while Vaidya and Apte, JJ., arrived at more or less the same conclusions as the learned Sessions Judge, Sa want, J., recorded diametrically opposed findings although he found Bhimrao Kadam PW,20 to be a wholly independent and therefore a reliable witness. Those findings were :

(i) There is no reliable evidence whatsoever to support the prosecution case that the accused were the aggressors.

On the other hand, the following five circumstances point to the contrary : ·

(a) The concoction of that part of the' prosecution story according to which the deceased were dragged out of their house by the appellants.

(b) During the incident in which abuses were ex

changed, appellants Nos .. 2 and 3 were merely sitting on the door steps of their house while the two deceased had gone there armed with sticks in an attempt to assault their adversaries.

(c) "Immediately after" that incident came to ia

close on the intervention of Bhimrao Kadam PW-20, the deceased were reinforced by their three brothers and the occurrence commenced

"immediately thereafter".

(d) Bodies of the persons injured on the side of the deceased were found lying nearer the house of the . accused than that of their opponents.

(e) Appellants Nos. l' to 3 also received injuries which were sufficiently serious and numerous.

(ii) Merely because two of the opponents of the appellants died and the number of persons injured on

• !

their side was greater than on that of the appellants, it . will not follow that the latter were the aggressors.

9. The case has been argued before us at great lenatJi by learned counsel for the parties and the two main questions requiring determination are :

(A) Has the prosecution proved beyond reasonable doubt that the party of the appellants were the aggressors and that it is not made out on the record that the latter may well have acted in xercise of the right of private defence?

(B) If the answer to question (A) is in the affirmative, whether the participation of all the appellants in the occurrence is satisfactorily made out ?

10. On question (A) we have no hesitation in agreeing with the conclusion arrived at by the learned Sessions Judge and Vaidya and Apte, JJ., and we shall record our reasons briefly. The occurrence admittedly took place on the road in between the respective houses of the deceased and the appellants which is fully made out from the deposition of Bhimrao Kadam PW-20 who is no doubt a wholly independent and reliable witness. When he was attracted to the place of occurrence by a noise which reached him in his field after he had gone there subsequent to his witnessing the three brothers of the deceased running towards their house, he found thatBhimraopW-12, Uttam PW-13 and their other two injured brothers were all lying unconscious on the road where Lakshmi PW-10, Droupadi PW-11 and Jayakar were also present. It is to be noted that the heads of Nivas and Balasaheb had been smashed to pulp so that in all prn- .bability neiter of the~. co.uld hve moved a step befor~ falling do~ j/

after the receipt of the mJuries which were detected on their dead bodies by Dr. Digambar Joshi PW-15. We have to take it for granted therefore that they were hit where they fell. The circumstance that their other two injured brothers were also found lying on the road lends

""t •·

~. "i" .¥

h 1

;;-

further strength to our conclusion that the occur.rence took place on ,... . '. the road itself and not at the house of the appellants. It may also be safely assumed, apart from the fact that all the witnesses say so, that Bhimrao PW-12, Uttam PW-13 and Jayakar were not with the deceased at the inception of the fight and were, on the other hand, working in their fields. This follows from the testimony of Bhimrao Kadam PW-20 which bears repetition on the point. He stated that while he was returning from his house to the fields at 2 30 or 3P.M. he found. the three brothers of the deceased 'running' which obviously mean

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BHIMRAQ ANNA v: MAHARASHTRA (Koshal, 1.) 321

running towards their house. It is the case of Bhimrao PW-12 and ' Uttam PW -13 that they were informed in their field by a boy named Mehar that their brothers were being attacked by the party of the appellants and that it was on that account that they ran towards their house. This assertion fully fits in with the narration of events by Bhim rao Kadam PW-20. Another very decisive circumstance is the nature of the injuries receiv.ed by the two contending parties. If the party of the deceased were the aggressors and had made a concerted attack on the appellants who were taken unawares there is no reason why the former should have come out second best in the combat. The fact that practicaUy all the injuries received by the deceased were located in the head region and were inflicted with great force makes it highly probable that it was they who were taken unawares and had to bear the brunt of the attack which they had perhaps no means to repulse. The fact that tlieir womenfolk were also injurea during the occurrence makes it probable that the ladies had to intervene because the fight was unequal and their respective husbands found in difficult to cope with it. Another inference which may well be drawn from the consequences of the combat is that Bhimrao PW-12, Uttam PW-13 and their brother Jayakar probably reached theplace of occurrence while their brothers were being belaboured and that it was at th.at stage that the three newcomers entered the arena and took up cudgels on behalf of their hapless family members. That is the only reasonable way, it appears to us, in which all the injuries suffered by the combatants on the two sides can be explain!l(l.

11. It is true, as pointed out by Sawant, J., as well as the learned Sessions Judge, that the eye witnesses have improvd their case at the trial over the story which they put forward at the investigating stage and therefore prove their unreliability in material particulars; but then they are rorroborated in certain other material aspects of their testimony by unimpeachable evidence in the form of the injuries suffered by the two sides, the place where they were inflicted and the consequences which flowed from them, and, in those aspects we cannot but believe them.

It is not unoften that improvements in an earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. But that does not mean that falsity of testimony in one material particular would ruin it from beginning to end. On the other hand the circumstances will be a good reason merely for the court to be put on guard and sift the evidence with extraordinary caution and to accept those portions of it which appear fully trustworthy either intrinsically or by reason of corroboration from other trustworthy sources. And that is how we have accepted the eye-witness account in part as stated above.

' F

322 SUPREME COURT REPo:RTS

U980] 3 S~C.R.

12. We may here frankly state that the reasons given by Sawant, J., in holding that the party of the deceased were the aggressors do not commend themselves to us. The fact' that improvements were made hy the eye-witnesses on the earlier story and the dragging incident was in.troduced at the trial stage has already been noticed by us but, without more, it cannot be taken to mean that it was the party of deceased who set the ball rolling. The incident in which abuses were exchanged between the two contending parties again does not lead to the inference that it was the party of the deceased who were guilty of aggression.

That incident no doubt provided the motive for the occurrence but such motive was attributable to both parties and perhaps more so to .that of the appellants who must have felt humiliated by the show of force indulged in by the deceased. It further appears to us that Sa want, J., misread the testimony of Bhimra0 Kadam PW-20 when he remarkyd that the fight took place "immediately after" the exchange-of-abusesincident which had come to a close at the intervention of Bhimrao Kadam PW-20. It is no doubt true that that witness did state in answer to a question in cross-examination :

"I immeqiately started towards my field and I met them at a distance of about 50 or 100 feet. I again heard the noise after a very short time after reaching the_ field."

-- - The words "I 'immediately started ctowards my field" have no connection whatsoever with the incident in which abuses were exchanged. Jn this connection we may refer to that portion of the evidence of the witness in which he categorically stated that that incident had taken place about midday when he was returning home from his Aield, that he left after the incident and that he met Uttam, Bhimrao and Jayakar "while I was again going back-to my field." The inference is clear that after the incident in which abuses were exchanged, the witness had gone home to his village which lies at a distance of about a mile from the place of occurrence and that he was again returning t0 his field when he met the three brothers of the deceased which was, according to the witness, 'at about 2 30 or 3 P.M.'.

This misinterpretation ot the evidence of Bhimrao Kadam PW-20 by Sawant, J., appears to us to have influenced the learned Judge in not a little measure in coming to the conclusion which he ultimately arrived at. But then he was also not right, in our opinion, in inferring aggression on the part of the party of the deceased from the cir- !' cuinstance that "the bodies of the inj'!red were found nearer the house -ef the accused than the house of the deceased". It is true that Bhimrao Kadam PW-20 did assert : - -

l!HIMRAO ANNA v. MAHARASHTRA (Kos?uil, !.) 323

"Uttam and Bhimrao were lying on the road near the A house of the accused. Nivas was lying in the middle of the road opposite to the door of the accused."

But from this no inference such as has been drawn by the learned Judge is reasonably possible. Admittedly the road has a width of only 14 feet and if two opposing parties, consisting in all of six to ten persons, engage themselves in violence against each other, the exact place where the members of each would be injured may not mean anything, especially if one of the parties is taken unawares and is unarmed. In any case the fact that the road was a narrow one makes

- _,..___ the circumstance relied upon by the learned Judge wholly innocuous.

The only other circumstance which he pressed into service in support of his conclusion that the accused appeared to have acted in exercise of the right of private defence was that they too "received iajuries which were sufficiently serious and numerous" which does not appear to be an accurate statement of facts. The injuries referred to by him were no doubt as numerous as those suffered by the other party; but then they cannot be classified as 'sufficiently serious'.

Except for one. none of them was located on a vital part and all of them without exception were simple in nature, the injuries on the two deceased persons being in contrast practically all deadly.

13. Thus, the consideration of the ocular evidence coupled with

the testimony of Bhimrao Kadam PW-20 and the circumstantial evi- E deuce, especially the medical part of it, lead us to an alliwer in the affirmative to question (A) posed above.

14. On the question of the participation of the appellants in the occurrence we have again to proceed with extraordinary caution in \ _view of the fact that Jhe eye-witnesses are not only highly interested in r exaggerating the number of the opposite party during the attack but have also n shown to have scant regard for truth when their selfish interests so demand. In this view of the matter we consider it safe to hold that appellants Nos. 1 to 3 are proved beyond reasonable doubt to have taken part in the fight.· They are not merely named in that • behalf by the eye-witnesses but admit their participation in the occur- .- rence which is ftlrther assured by reason of the fact that all three of them were found injured immediately thereafter. The same is not true of

the other three who have denid their presence at the time and place of the occurrence and about whose participation in the fight no other

assuring factor is forthcoming. It is true that according to Bhimrao Kadam PW-20, appellant No. 4 was present at the scene when the abuses were exchanged but that fact is no guarantee of his participation in the occurrence which took place about a couple of hours later •

And no incongruity results from the exclusion of appellants Nos. 4 to 6 J from the fight because the other three appellants would have as effec- tively caued all the injuries found on the two deceased and the two ladies all by themselves as if they were cauSed by them with the assis- tance of appellants Nos. 4 to 6. In this view of the matter we are of the opinion that appellants Nos. 4 to 6 are entitled to the benefit of doubt in the matter of their participation in the occurrence. We therefore accept the appeal in so far as they are concerned, set aside the conviction recorded against and the sentences imposed upon them by the courts below and acquit them of the charge in its entirety.

15. The appellants were convicted by the learned Sessions Judge -+ of an offence under section 148 of the Indian Penal Code and of two offences of murder under section 302 read with section 149 of the Code.

The first ol):'ence, namely, that under section 148 of the Code, falls to the ground with the acquittal of appellants Nos. 4 to 6, and so does that under section 149 thereof. It is however quite clear from the findjhgs arrived at by us, especiaUy those relating \o the nature of the injuries suffered by the two deceased and the consequences resulting from them that the two offences of murder were committed by appellants Nos. 1 to 3 in furtherance of their common intention so that each /one of them is liable to conviction on two counts under section 302

read with section 34 of the Indian Penal Code. We hold accordingly '~ and sentence each of those three appellants to imprisonment for life on each count with a direction that the two sentences of life imprisonment shall run concurrently.

Accordingly, the appeal fails in so far as they are concerned except in relation to the modification in the conviction and 'sentences as directed above. ·

N.V.K;

BHIMRAO ANNA INGAWALE AND OTHERS

STATE OF MAHARASHTRA

April 2, 1980

Ss. 302, 149 & 148

section 149

section 148

Indian Penal Code

Jayakar

lllIIMRAO ANNA V. MAHARASHTRA

s 12, 13

Jayakar

section 148

section 149

section 302

section 34

Penal Code

S. D; Dashme

V. N.

Ganpu'e

V. D. Khanna

C. K Ratnaparkhi

Geeta Sharma

M. C. Bhandare

M- N. Shroff

KosHAL

High Court of Maharashtra

section 302

section 149

section 148

Indian Penal Code

Vaidya

Sawant

section 392

Code of Criminal Procedure

Apte

H Kole

Kha

haba

Anandrao

Abasaheb

Shripati D

Nivas Balasa.heh

Droupadi

Bhimrao

Uttam

Anna

Bbimrao

Banda alis Man1ti

I-axe)

Banda alis Man1ti (appellant No.

Dhondiram

Sham'rao

6-stick)

21~189 SCI/80

Sham'rao (absconding accused-stick)
·· ' 314

SUPREME COURT J.IPCJRTS

[1980] 3 S; C.R.

A Khashaba accused No.

Nivas

Karad

Balasaheb

Bhimrao Kadam

Lakshmi

lslampur

Bhimrao

Islampur

Sang!i

Balasabeb

Pandurang

BHIMRAO ANNA V

Bhaskar

Nagpur

18th of November, 1974

Shridhar

Kantilal Shah

11th of November, 1974

Civil Hospital, Sangli

Sh, ridhar

Civil Hospital, Islampur

Digambar Joshi

12th of November, 1974

Abasaheb

Uttam

Bhimrao

Lakshmi

Droupadi

Islampur

Anna

Banda

Mehar

Bhim rao Kadam

Sa want

Bhimra0 Kadam

Sawant

Uttam

section 148

Indian Penal Code

section 302

section 149

section 148

section 149

section 302

section 34

Indian Penal Code


SANTOSH MEHTA . v.

OM PRAKASH AND ANR.

April 2, 1980 .

[V. R. KRISHNA IYER AND A. P. SEN, JJ.]

Delhi Rent Control Act, 1958, Sections 15(7) scope of-Striking of] defence for non-payment of arreaTs of rent, Court's duty.

Delhi Rent Control Act, 195S~Appeal against order .striking out defence- Correct section applicable is section 38 and not section 2SB,. of tlie Delhi Rl!flt

Control Act.

The appellant tenant, a working woman .engaged an advocate to appear on her behalf and take proper steps to protect her interests, as she had a difficulty in appearing in Court for every hearing. She paid all the arreats of rent by cheque or in cash to her advocate who failed either to deposit in the Court or to pay to the landlord. Tho Rent Controller refused to look into this and struck off her defence onder section 15(7) of the Delhi Rent Control Act, 1958. The I> appeal was dismissed as noi maintainable in view of section 2SB of the Act.

Hence the appeal by special leave.

Allowing the appeal, the Court.

HELD : I. Rent Control laws are basically designed to protect tenants because scarcity of accommodation is a nightmare for those who own none and, if evicted, will bo helpless. Even so, the legislature has provided some groonds for eviction, and the Delhi law contains an extreme provision for striking out altogether the defence of the tenant which means that even if he has excellent pleas to negative the landlord's clahn the Court will not hear hhn. Obviously, this is a harsh extreme and having regard to the benign scheme of the legisla• tion this drastic power is meant for use in grossly recalcitrant situations where a tenant is guilty of disregard in paying rent. That is why a discretion is vested, not a mandate impos~ in Section IS (7) of the Delhi Rent Control Act. !327 C-Dl

2. If a socially informed perspective is adopted while construing the provisions of Section 15(7), then it will be plain that the Controller is armed with a facultative power. He may, or may not strike out the tenant's defence. A judi4 cial discretion has built-in-self-restraint, has the scheme of the statute in mind,. cannot ignoie the conspectus of circumstances which are preSent in the case and has the brooding thought playing on the power, that, in a court, striking out a party's defence is an exceptional step, not a routine visitation of a punitive extreme following upon a mere failure to pay rent. First of all, there must be failure to pay rent which, in the context, indicates \\'ilful failure, deliberate default or volitional non-performance. Second!}', the Section provides no automatic weapon but prescribes a wise discretion, inscribes no mechanical conseqneru:e but invests a power to overcome intransigence.

Thus, if a tenant fails or ..efu.es to pay or deposit rent and the court discerns a mood of defiance or gross neglect, the tenant may forfeit his right to be heard in defence. A 'last resori cannot be converted into the first resort a punitive direction of court

A cannot be used as a booby trap to get tho tenant out. Once this telool<>Sical interpretation dawns, the mist of misconception about matter-of-course invocation of the p<>wer to strike out will vanish. Farewell to the realities of a given case is playing truant with the duty underlying the power. [327 F-H, 328 A-BJ

3. The exercise of the power of striking out of the defence under sectiOn 15 (7) is not imperative whenever the tenant fails to deposit or pay any amol!Ut B as required by section 15. The provisions contained in s. 15(7) of the Aet are directory and not mandatory. It cannot be disputed that s.15(7) is a penal provision and given to the C.Ontroller discretionary power in the matter of striking out of the defence, and that in appropriate cases, the Contfoller may refuse, to visit upon the tenant the penalty of non-payment or non-deposit. The effect of Bili!<

ing out of the defence under s.15(7) is that the tenant is deprived of !be pro!e<(- tion given by s,14 and, therefore, the powers under s.15(7) of the Act must be

C:: eXercised with due circumspection. Section 15 (7) of the Act is not couched in mandatory language. It uses the word "may". The difference in the language of Section 15(7) with that of Section 13(5) of the repealed Act is significant and 'indicates that in !be present Act there is a deliberate modification of law in favour of the tenant. Under Section 15(7) of the Act, it is in the liberal discretion of the Rent Controller, whether or not to strike out the defence. The Court should be aware of the milieu before exercise of this extreme power. [328 B-D, 329 A-BJ D In the instant case, the tenant did all she could by paying to the advocate the sums regularly but the latter betrayed her and perhaps helped himself. To tmst one 9S advocate is not to sin deliberately.

She was innocent but her advocate was noeent. No party can be punisheq because her advocate behaved unprofessionally. The Rent Cotttroller should have controlled himself by a plain look at the eloquent faets and not let down the helpless woman who in good E faith believed in the basic ethic of a noble profession. She did not fall to pay or deposit and, in any view, no case for punitive exercise of discretion bas been made out. The conclusion necessarily follows that the striking out of the defence was not legal and the nppellant should have been given an opportunity to contest the claim of the landlord for her eviction. A sensiti7.ed jll<licial appreciation was missing and unfortunately, the High Court did not closely look at this facet of the issue. (329 E-H] • V. K. Varma v. Rm/hey Shyam, A.LR. 1964 S.C 1370; referred to.

4. An order striking out the defence is appealable under s.38. SO this order is appealable. The reliance on s. 25B(8) to negative an appeal ;,, inept bccautle

this is not a.n order under that special section but one under .s. IS. Morover, o.25B(l0) preserves the procedure except to the extent contra-indicated in 1.25B.

Negation of a right of appeal follows from s.25B(8) only if the order for reco- G nry is made 'in accordance with the procednre specified in this Section' (i.e. 25B).

Here the dispossession was not ordered under tho special provision in s.25B but under s.15. Nor can the theory of merger. salvage the order because the legality of the eviction order depends on the lega!iiy of the order under s.15(7). Once that order is found illegal what follows upon that cannot be sustained. [330 A.c:J

Ov!L APPELLATE JURISDICTION : Civil Appeal No. 1445 of 1979 .

Appeal by Special Leave from the Judgment and Order dated 17th October, 1978 of the Delhi High Court in Revision Petition No. 689 of 1978.

.. ~

·~

SANTOSH MEHTA v. OM PRAKASH AND ANR. (Krishna Iyer, /.) 327

Mrs. Shyamala Pappu, P. H. Parekh, Rain Karanjawala and Miu Vineeta Caprihan for the Appellant.

B. D. Shqrma, for the Respondents.

The following Judgment of the Court was delivered by

KRISHNA IYER, J.-A short but interesting point affecting the val\dity and propriety of an order under s. 15(7) of the Delhi Rent Control Act, 1958 (for short, the Act), has been raised bycounsel for the appellant. The decision of this question 'is of importance and we regard it as necessary to clarify the position so that the error committed by the trial judge may not be repeated. __._.

Rent Control laws are basically designed to protect tenants because scarcity of accommodation is a nightmare for those who own i; ione and if evicted, will be helpless. Even so, the legislature has provided some grounds for eviction, and the Delhi law contains an extreme provision for striking out altogether the defence of the tenant which means that even if he has excellent pleas to negative the landlord's claim the court will not hear him. Obviously, this is a harsh extreme and having regard to the benign scheme of the legislation this drastic power is meant for use in grossly recalcitrant situations where a tenant is guilty of disregard in paying rent. That is why a discretion is vested, not a mandate imposed; Section 15(7) reads thus :

"If a tenant fails to make payment or deposit as required by this section, the Controller inay order the defence against eviction to be struck out and proceed 1wit!> the hearing of the application."

_ We must adopt a socially informed perspective wlii!e construing the provisions and then it will be plain that the Controller is armed \ with a facultative power.

H'e may, or not strike out the 'y-· tenant's defence. A judicial discretion has built-in-self-restraint, has

the scheme of the statute in mind, cannot ignore the conspectus of circumstances which are present in the case and has the brooding , thought playing on the power that, in a court, striking out a party's

 defence is an exceptional step, not a routine visitation of a punitive extreme following upon a mere failure to pay rent. First of all, there la. must be a failure to pay rent .which, in the context, indicates wilful ,..-. failure, deliberate default or volitional non-performance. Secondly,

the Section provides no automatic weapon but prescribes a wise discretion, inscribes no mechanical consequence but invests a power to overcome intransigence. Thus, if a tenant fails or refuses to pay or deposit rent and the court discerns a mood of defiance or gross neglect,· the tenant may forfeit his right to be heard in defence. The last resort

, G.

SUPREME COURT REPORTS [1980] 3 S; C:it.

cannot be converted into the first resort; a punitive direetion of court cannot be used as a booby trap to get the tenant out. Once this teleological interpretation dawns, the mist of misconception about matterof-course invocation of the power to strike out will vanish. Farewell to the realities of a given rase is playing truant with the duty underlying the power .

There is no indication whatsoever in the Act to show, that the exercise of the power of striking out of the defence under' s. I 5(7) was imperative whenever the tenant failed to deposit or pay any amount as required by s. 15. The provisions contained in s. 15(7) of the Act are directory and not mandatory. It cannot be disputed that s. 15(7) is a penal provision and gives to the Controller discretionary power in the matter of striking out of the defence, and that in appropriate cases, the Controller may refuse to visit upon the tenant the penalty of nonpayment or non-deposit, The effect of striking out of the defence under s. 15(7) is that the tenant is deprived of the protection given by s. 14 and, therefore, the powers under s. 15(7) of the Act must be exercised with due circumspection.

It will be noted that s. 15(7) of the Act is not couched in mandatory language. It uses the word 'may'. The difference in the language of s. 15(7) with that of s. 13(5) of the repealed Act is significaqt and indicates that in the present Act there is a deliberate modification ) of law in favour of the tenant. In this connection, it would be pertinent to refer to the observations of the Court in V. K.

Verma v.

Radhey Shyam.(1) In that case, the Court compared s. 13(5) of the Delhi Rent Control Act, 1952 which laid down that on the failure of a 'tenant to deposit the arrears of rent within the prescribed t_ime, "the

court shall order the defence against ejectment to be struck out." with s. 15(7) of the Delhi Rent Control Act,1958 which substituts 'may' •·-~ ' ~~ed: ' ~

"The change of the words from "The Court shall order the defence against ejectment to be struck out" to the words "the Controller may order the defence against eviction to be struck out" is clearly deliberate modification in law in favour of the tenant. Under the old Act the Court had no. option but to strike out the defence if the failure to pay or deposit 'the rent is proved; under the new Act the Controller who takes the place of the Court has a discretion in the matter, so that that in proper cases he may refuse to strike out the defence."

(I) A.LR. 1964 SC 1370.

1~., ,. •. ~·~~ •

, ,, . ""--1''!'' ,•

SANTOBH MEHTA v. OM PRAKASH AND ANR. (Krishna Iyer,!.) 329

These ob3Crvations leave no doubt that under s. 15(7) of the Act, it is in the liberal discretion of the Rent Controller whether or not to strike out the defence.

We stress the need for the Court to be aware of the milieu before exercise of this extreme power because the present case is 'illustrative of its erroneous use .

The facts in this case cry for intervntion, if one may say so. The appellant is a working woman who has to get to office and be there between 9 00 a.m. to 5 00 p.m. Naturally, she has a difficulty in appearing in court for every hearing and so she prudently engaged an advocate to appear on her be)lalf•and take proper steps to protect her interests. It, is common ground that all the arrears of rent had been paid by her by cheque or in cash to her advocate. It also transpires that the amounts received by cheque or in cash by the advocate were not depoited in court or paid to the landlord. It i& further seen that when the tenant found that the amounts were not paid to the landlord by her advocate, she made a complaint to the .Bar Council of Delhi and the matter is pending inquiry. From these circumfilances, we are inclined to conclude-indeed, that is the only reasonable conclusion in the circumstances-that the tenant has not failed •

to pay and, in any case, the exercise of judicial discretion must persuade the court.not to strike out the defence of the tenant but give her fresh opportunity to make deposit of the entire arrears due. In the present case the deposit has eventually been made in this Court when it directed such deposit to be made. ' The tenant did all she could by paying to the advocate the sums regnlarly but the latter . betrayed her and perhaps helped himself . . \- To trust one's advocate is not to sin deliberately. She was innocent .

- but her advocate was nocent. No party can be punished because her advocate behaved unprofessionally. The Rent Controller should have controlled himself by a plain look at the eloquent facts and not let down the helpless woman who in good faith believed in the basic .ethic of a noble profession. She did not fail to pay or dej, osit and, in any view, no case for punitive exercise of discretion has been made out. The conclusion necessarily follows that the striking out of the .defence was not. legal and the appellant should have been given an opportunity to contest the 'claim of the landlord for her eviction. A sensitized judicial appreciation was missing and, unfortunately, the High Court did not closely look at this facet of the issue. On the -0ther hand, the appeal was dismissed as not maintainable in view of s. 2SB.

An order sfrikitig out the defence is appealable under s. 38. So Tus order is appealable. The reliance on s. 25B(8) to negatiYe an appeal is inept because this is not an order llOder that special aeetion but one under s. 15. Moreover, s. 25B(l0) preserves the proce• dure except to the extent contra-indicated in s. 25B. Negation of the right of appeal follows from s. 25B(8) only if the order for recovery is made 'in accordance with the procedure specified in this section' (i.e. 25B). Here the dispossession was not ordered under the special provision in s. 25B but under s. 15. Nor can the theory of merger salvage the order because the legality of the eviction order depends on the legality of the order under s. 15(7) .. Once that order is found illegal what follows upon that cannot be sustained.

In thy view we take of the effect of s. 15(7) we allow the appeal in exercise of our jurisdiction under Article 136 and direct the case to go back to the Rent Contro lier. Having regard to the fact that the landlord has not been able to make out his case of bona fide requirement for long because of the pendency of these proceedings, we direct the Rent Controller to dispose of the petition for eviction expeditio11Sly and, as fa as possible, within fuu1 months from today.

Any further arrears, if accrued, will be paid under the direetions , of the Rent Controller on or before a date fixed by him. The otder for eviction passed in this case after striking out the defenc'e mult fail B in view of our holding that the order striking out the defence itself is illegal. Necessarily, the orders of the Rent Controller and of the High Court must be and are hereby set aside. The parties will appear before the Rent Controller on 16th April, 1980. There will be no order as to costs.

S.R.

Appeal a//(lwed. _ I __,,

MG~2S00-17-11-81l-189 SCI/80

SANTOSH MEHTA

OM PRAKASH AND ANR

V. R. KRISHNA IYER

A. P. SEN, JJ.

Delhi Rent Control Act, 1958

Sections 15(7)

Delhi Rent Control Act

section 38

section 2S

section 15(7)

Delhi Rent Control Act, 1958

section 2S

Section 15(7)

section 15

s. 15(7)

Section 15

Section 15(7)

Section 13(5)

Section 15(7)

s. 25B(8)

SANTOSH MEHTA

OM PRAKASH

Shyamala Pappu

P. H. Parekh

Rain Karanjawala

Miu Vineeta Caprihan

B. D. Shqrma

KRISHNA IYER

s. 15(7)

Delhi Rent Control Act, 1958

Section 15(7)

s. 15

s. 15(7)

s. 15(7)

s. 15(7)

s. 14

s. 15(7)

s. 15(7)

s. 15(7)

s. 13(5)

s. 13(5)

Delhi Rent Control Act, 1952

s. 15(7)

Delhi Rent Control Act,1958

s. 15(7)

.Bar Council of Delhi

s. 2S

s. 38

s. 25B(8)

s. 15

s. 25B(l0)

s. 25B

s. 25B(8)

s. 25B

s. 15

s. 15(7)

s. 15(7)

Article 136

16th April, 1980


VISHESH KUMAR

SHANTI PRASAD

March 12, 1980

(V. R. KRISHNA IYER AND R. S. PATHAK, JJ.J

Code of Civil Procedure-S. 115-State amend1nents bifurcated revisional jurisdiction between High Court and District Court-High Court-ff possessea revisional jurisdiction from an order of District Judge disposing of revision C pelitiou.

Provincial Small Cause Courts Act-Section 25-High Court-If possesses jurisdiction under section 115 C.P.C. against an order of District Judge under section 25 of the Act disposing of a revision petition.

Section 115 of the Code of Civil Procedure confers on the High Court of & State poWer to remove any jurisdictional error committed by a subordinate court in cases where the error cannot be corrected by resort to its appellate jurisdiction.

From its inception there was increasing resort to the revisiooal jurisdiction of the High Court under s. 115. To alleviate the burden of arrears and reduce the vo1ume of litigation which had reached an insuportable point, s. 115 was amended by successive state amendments, each amendment attempt~ ing to close the gap left by its predecessor. The amendments conferred revisional jurisdiction both on the High Court and the District Court each enjoying mutually exclusive revisional powers.

The consistent object bhind the succoosive amendments was to divide the work load of revision petitions between the High Court and the District Court and decentralise the jurisdiction.

A proviso was added to s. 115 by the U.P. Civil Laws Amendment Act, 1973 declaring that "in respect of cases ...... arising out of original suits of any valuation decided by the District Court the High Court alone shall be competent to make an order under this section."

The Code of Civil Procedure (Amendment) Act, 1976 superseded the acheme of bifurcation of revisional jurisdiction with effect from I st February 1977.

With certain modifications the position reverted to what it was under the original s. 115. An exception was made where a revision petition under

1. 115 had been admitted after preliminary hearing before 1st February 1977; it would continue to be governed by s. 115 as it stood before that date.

But the Code of Civil Procedure (U.P. Amendment) Act 1978 substantially restored the status quo ante.

Section 25 of the Provincial Small Cause Courts Act was amended from time to time in its application to the State of U.P. 'The first amendment substituted the District Judge for the High Court. A further amendment made in 1972 added a proviso which declared that in relation to any case decided by a District Judge or Additional District Judge exercising jurisdiction of a Judge of Small Causes Court the power of revision under s. 25 would vcat in the High Court.

._.L.

VISHESH KUMAR V. SHANTI PRASAD 33

The two questions that fell' for consideration were : (il whether the High .\ <:wrt possesses the revisional jurisdiction under s. 115 of the Code of CTvil tl'rocedv.re in respect of an oro'r of the District Court under s. 115 disposin1

of a revision petition and (ii) whether the High Court possesses revisional jurisdiction under s. 115 against an order of District Court under s. 25 Provincial Small Cause Courts Act disposing of a revision petition,

HEID : The High Court is not vested with revisional jurisdiction under 8

1. 115 Code of Civil Procedure over the revisional order made by the District 'Court under that section. [40 HJ

(1) To recognise a revisional power in the High 'Court over the revisional --order passed by the District Court would plainly defeat the object of the legislative scheme. The intent behind the bifurcation of jurisdiction-to reduce the number of revision petitions filed in the High Court-would be frustrated.

The scheme would lose its meaning. If a revision petition is permitted to the High Court against the revisional order of the District Court arising out

of a suit of a value less than Rs. 20,000 a fundamental contradiction would be allowed to invade and destroy the division of revisional power between the High Cwrt and the District Court, for the High Court would then enjoy jurisdictional power in respect of an order arising out of a suit of a valuation -of below Rs. 20,000 /-· [39 G-H]

(b) What the proviso introduced in s. 115 by the Civil Laws Amendment Act, 1973, stated was that no matter what the valuation of the original suit, !f a case arising out of such suit was decided by the District Court, the case -would be amenable to the revisional power of the High Court. What is covered by the substantive provision are cases arising out of original suits of .a value of Rs. 20,000/- or more. The other category covered by the proviso would include those instances where an original suit, although of a value making it triable by a court subordinate, is transferred to the District Court

for trial. Orders passed by the District Court in such a suit could constitute :a case decided by it and amenable to the revisional power of the High Court.

The test incorporated in the proviso is the fact that the case has been decided "by the District Court. The valuation of the suit is irrelevant. The proviso

cannot be construed to include the case of a revisional order passed by the :Oiltrict Conrt for that would be in direct conflict with the fundlunental structure itself of section 115. A proviso cannot be permitted by construction :lo defoot the basic intent expressed in the substantive provision. [40 C-F]

Mjs. Jupiter Fund (P>'t.) Ltd. v. Dwarka Diesh Dayal and others A.l.R. '1979 AD. 218 approved.

2. {a) An order passed under s. 25 of the Provincial Small Cause Courts Act by a District Court is not amenable to the revisional jurisdiction of the .'High Court under s. 115 of the C.P.C. [42 Fl

(b) An examination of the several provisions of the Provincial Small Cause Courts Act indicates that it is a self-sufficient code so far as the present enquiry ia c.oo.cemed. The Legislature clearly intended that a decree or order made ·<by a Coort of Small Causes should be final subjeot only to correction by the .,...medics provided under the Provincial Small Cause Courts Act.

All the ru.dications contained in the Act point to the conclusion that a case falling

SUPREME COURT REPORTS

[1980] 3 S.C.R •.

within the Provincial Small Cause Courts Act was never intended to be subject to the remedies provided by the Code of Civil Procedure.

By \Vay of abundant caution, s. 7 of the Code made express provision barring the application of ss. 96 to 112 and 115 of the Code to courts constituted under the Provincial Small Cause Courts Act.

Section 7 of the Code merely embodies the general principle against resort to remedies outside the Provincial Small Cause Courts Act. Although the court of the District Judge is not a court constituted under the Act the general principle continues to take effect. No change in the principle was brought about merely because revisional power under s. 25, before th, e proviso was added, was now entrusted to the District Judge. The legislative intention behind the amendment was to relieve the High Court of the burden of exercising revisional jurisdiction in respect of cases decided under the Provincial Small Cause Courts' Act.

Therefore the central principle conti-· nues to bold, notwithstanding the amendment effected in s. 25, that the hierarchy of remedies enacted in the Provincial Small Cause Courts Act represents a complete and final order of remedies, and it is not possible to proceed outside the Act to avail of a superior remedy provided by another: statute. [41 E-42A-Dl

Bim/a Rani Kohli v. M/s. Bandu Motor Finance Pvt. Ltd. A.I.R. 1972 AIL 342; over-ruled.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2844of1979.

Appeal by Special Leave from the Judgment and Order dated

17-8-197~ pf \he Allahabad Hi~ <;'ourt in Civil Revision No. 1273 \)f 1976.

-Pramod SwariijJ for the Appeliant N. K. Agarwal for the Respondent (A1nicus C11riae).f

The Judgment of the Court was delivered by

PATHAK, J. This appeal by special leave and the four associated'. speCial lea'e petitions question the dismissal by the. High Court of Allahabad of five revision petitions filed under Section 115, Code of Civil Procedu1e, en the ground that they are not maintainable.

Although the five cases before us must be considered . in the context of their individual facts, it is ' desirable to appreciate the relevant jurisdictional structure of revisional power. njoyed by the High Com t fr cm time to time. In 1970, the prov1S1ons of s. 115, Code of Civil Procedure, read :

"115 Revision : The High Court may call for the record of any cas~ which has been decided by any court subordin.ate to such High Court, and in which no appeal lies thereto, ! and 1f such court

subordinate appears :

(a) to have exercised a jurisdiction not vested in it by law. or

(b) to have exercised a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally with material irregularity,

the High Court may make such order in the case as it deems fit."

A schematic analysis of the judicial hierarchy within a State indicates that the High Court, as the apex court in the hierarchy, has been entrusted, not only with the supreme appellate power exercised within the State but also, by virtue of s. J15, the power to remove, in order to prevent a miscarriage of justice, any jurisdictional error committed by a subordinate court in those cases where the error cannot be corrected by resort to its appellate jurisdiction. The two salient features cf revisicnal jurisdiction under s. Jl5 are, on the one hand, the closely limited grounds on which the court is permitted to interfere and on the other, the wide expanse of discretion available to the c0urt, when it decides to interfere, in making an appropriate order. The intent is that so serious an error as one of jurisdiction, if committed by a subordinate court, should not remain uncorrected, and should be removed and the record healed of the infirmity by an order shaped to re-instate the proceeding within the proper jurisdictional confines of the subordinate court. It is a power of superintendence, and fittingly it has been conferred in terms enabling the High Court to exercise it, not only when moved by art aggrieved person, but also suo motu. While considering the nature and scope of the revisional jurisdiction, it is necessary however, to advert to prime circumstance that in civil cases the jurisdiction has been entrusted to the highest court of the State, demonstrating that broadly the order under s. 115 is to be regarded, in the absence of anything else, as a final order within the State judiciary.

From its inception there was increasing resort to the revisional jurisdiction of the High Court under s. 115. Over the years the volume of litigation reached an insupportable point in the pending docket of the Court. To alleviate the burdrn, a pattern of decentralisation of revisional power was adopted and s. 115 was amended by successive State amendments, each attempting to close the gap left by its predecessor. In its meandering course from stage to stage, this is hows. 115 read :

1. From 7th April, 1970 : By virtue of s. 3, U.P. Civil Laws (Amendment) Act, 1970, s. 115 was amended and the result was that :

(i) The High Court had exclusive jurisdiction under ff; s. 115 in a case arising out of an original suit of the value of Rs. 20,000 and above; and •

-A

SUPREME COURT REPORTS [1980] 3 s.c.R.

(ii) The High Court and the District Court had jurisdiction under s. 115 concurrently in other cases.

2. From 20th September, 1972:

S. 6, U.P. Civil Laws (Amendment) Act, 1972 amended s. 115 further with effect from 20th September, 1972. Later, s. 115 was amended by s. 2, U.P. Civil Laws (Amendment) Act, 1973 in its application to Uttar Pradesh, retrospectively with effect from 20th September, 1972. In consequence :

(i) The High Court possessed exclusive jurisdiction under s. 115 in cases arising out of original suits of the value of Rs. 20,000 and above, including such suits instituted before 20th September, 1972:

(ii) Th~ District Court possessed exclusive jurisdition under s. 115 in any other case, including a case arising out of an original suit instituted before 20th September, 1972.

Provided that in respect of cases decided before 20th September, 1972 and also all cases arising out of original suits of any valuation, decided by the District Court, the High Court alone was competent to exercise revisional power under s. 115.

S. 2 (e), U.P. President's Acts (Re-enactment with Modifications) Act, 1974 repealed the U.P. Civil Laws (Amendment) Act, 1973, and re-enacted it with certain modifications which, however, for the purposes of the present case are immaterial.

3. From !st February, 1977 : S. 43, Code of Civil Procedure (Amendment) Act, 1976 was enacted by Parliament and amended s. 115 with effect from !st February, 1977 making substantial changes therein. Section 97 (I) of the Amendment Act provided that any amendment made, or provision inserted, in the Code of Civil Procedure by a . State Legislature before the !st February, 1978 would stand repealed except insofar as such amendment or provision was consistent with the Code as [ amended by the said Amendment Act.· As the Code now amended provided for revisional jurisdiction in the High Court alone, the .scheme embodied in s. 115 by the successive U.P. Amendment Acts was plainly inconsistent with the Code as now amended, and -therefore stood repealed, the position reverting to what it was under 1he original s. 115 before its amendment by the U.P. Civil Laws (Amendment) Act, 1970. Buts. 97(2) provided that s. 115 as now amended by the Amendment Act, 1976 would not apply to nor affect any proceeding for revision which had been admitted, after

VJSHESH KUMAR v. SHANTI PRASAD (Pathak,].) 37

preliminary hearing, before !st February, 1977 and every such pro

ceeding for revision would be disposed of as if s. 43 had not come in

to force. The proviso was without prejudice to the generality of the provisions of s. 6, General Clauses Act, 1897. In the result :

(i) The High Court had exclusive jurisdiction under s. 115 in a revision petition filed on and after that date, irrespective of the valua tion of the suit out of which the case arose :

(ii) A revision petition under s. 115 which had been admitted, after preliminary hearing, before !st February, 1977 would continue to be governed by s. 115 as it stood before that date.

4. From !st August, 1978 : Finally s. 3, Code of Civil Procedure (Uttar Pradesh Amendment), Act, 1978, which was deemed to have come into force on !st August, 1978, amended s. 115 again and restored the bifurcation of revisional jurisdiction between the High Court and the District Court.

Accordingly now :

(i) The High Court alone had jurisdiction under s. 115 in cases arising out of original suits. or other proceedings of the value of Rs. 20,000 and above, including such suits or other proceedings instituted before !st August, 1978;

(ii) The District Court alone has jurisdiction under. s. 115 in any other case, including a case arising out of an original suit or other proceedings instituted before !st August, 1978 ;

(iii) The High Court has jurisdiction under s. 115 in respect of cases, arising out of original suits or other proceedings of any valuation, decided by the District Court.

A-.

))..

(iv) A revision proceeding pending immediately before !st August, F. 1978 of the nature in which a District Court would exercise revisional power under s. 115 as amended by the Amendment Act, 1978 if pending :

(a) in the District Court, would be decided by that court as if the Amendment Act of 1978 were in force at all material times ;

(b) in the High Court, would be decided by the High Court as if the Amendment Act of 1978 had not come into force .

The submissions made by learned counsel before us cover a wide field, but in the main, two questions arise :

(!) Whether the High Court possesses revisional jurisdiction a. 'lmder s. 115, Code of Civil Procedure in respect of an order of the District Court under s. 115 disposing of a revision petition ?

A '

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SUPREME COURT REJ>OH~ [1980]

-~ S.G.R.

(2) Whether the High Court possesses 1evi; ional jurisdicti<>n under s. 115 against an order of the District Cou1t under s. 25, Prn vincial Small Cause Courts Act disposing of a revision petition ?

As regards the first question, it will be noticed that a revisional power was formerly entrusted exclusively to the highest court in the state, the High Court. The State amendments now divided it between the High Court and the District Court. The amendment effect by the U.P. Civil Laws (Amendment) Act, 1970 conferred exclusive jurisdiction under s. 115 in the High Court in cases arising out of original suits of the value of Rs. 20,000/- and above, and in other cases the revisional jurisdiction was concurrently shared between the High Court and the District Court. It was apparently supposed that the average litigant would prefer the less expensive and more convenient forum of the District Court. The measure, it seems, did not bring the relief expected, and the State Legislature found it necessary, by enacting the U.P. Civil Laws (Amendment) Act, 1972 to make a clearcut division of jurisdiction between the High Court and the District Court, resulting in exclusive revisional jurisdiction to the High Court in cases arising out of original suits of the value of Rs. 20,000/- and above, and exclusive jurisdiction under s. 115 to the District Court in other cases. There was a sharp bifurcation of revisional jurisdiction, and the High Court and District Court now enjoyed mutually exclusive revisional powers. A controversy arose whether a revisional order under s. 115 made by the District Court was final or was itself amendable to the revisional power of the High Court under the same section. The point was considered by a full Bench of the High Court in Har Parasad Singh and others v.

Ram Swarup and others(l) and it was held that no such revision petition was maintainable before tile High Court. Further State amendments were made to s. 115 without materially disturbing the division of power. But a proviso added to s. 115 by the U.P. Civil Laws (Amendment) Act, 1973, followed by the U.P. President's Acts (Re-enactment with Modifications) Act, 1974 stated :

"Provided that in respect of cases decided before the 20th day of September,-1972, and also all cases arising out of original suits of any valuation decided by the District Court, the High Court alone shall be competent to make an order under this section."

The proviso reopened the controversy whether a rev1s1on petition lay to the High Conrt against a revisional order passed by the Dis-

- (I) A. L R. 1973, Allahabad, 390.

VJSHESH KUMAR v. SHANTI PRASAD (Pathak, J.)

t!rict Court, and on a difference of opinion between two learned

judges a third learned judge of the Allahabad High Court now held inPhool Wati and othersv. Gur Sahai (I) that a revision petition would lie.

The Code of Civil Procedure (Amendment) Act, 1976, however, superseded the scheme of bifurcation of revisional jurisdiction with -effect from !st February, 1977 and, with certain modification the position reverted to what it was under the original s. 115.

In otr.er words, the entire sphere of revisional jurisdiction was restored to the High Court, no such 1 power being now vested in the District Court.

An exception was made where a revision petition ·.under s. 115 hadi been admitted, after preliminary hearing, before Ist February, 1977; it would continue to be governed bys. 115 as it stood -before that date. The situation lasted only briefly, for on !st August, 1978 the Code of Civil Procedure (Uttar Pradesh Amendment) Act, 1978 substantially restored the status quo ante.

The controversy whether it is open to the High Court to exercise revisional power in respect of a revisional order under s. 115 of the District Court presents little difficulty. The basis for determining that question flows from the principle incorporated in the bifurcation of the revisional jurisdiction, And legislative history comes to our aid. The consistent object behind the successive amendments was to divide the work load of revision petitions between the High Court and the District Court aP.d decentralise that jurisdiction. That purpose was s0ught to be achieved by classifying all cases into two mutually exclusive categories depending on the valuation of the suit out of which they arose. In determining whether the Legislature intended a further revision petition to the High Court, regard must be had to the principle that the construction given to a statute should be such as would advance the object of the legislation and suppress the mischief sought to be cured by it. it seems to us that to recognise a revisional power in the High Court over a revisional order passed by the District Jur!ge would plainly defeat the. object of the legislative scheme. The fr.tent behind the bifurcation -of jurisdiction-to reduce the number of revision petitions filed in the High Court-would be frustrated. The scheme would, in large measure, lose its meaning. If a revision petition is permitted to the High Courtagainst the revisional order of the District Court arising out of a suit of a value less than Rs. 20,000/-, a fundamental -contradiction would be allowed to invade and destroy the division of revisional power between the High Court and the District Court, for

(!) A.l.R. 1975 Allahabad 262.

40 SUPREME COURT REPOR rs

[1980] 3 S.C.R.

the High Court would then enjoy jurisdictional power in respect of an order arising out of a suit of a valuation below Rs. 20,000/-.

That was never intended at all.

In Phoolwati (supra), considerable importance was attached to the proviso introduced in s. 115 by the U.P. Civil Laws Amendment Act, 1973. The proviso declared that "in respect of. ....... aO cases arising out of original suils of any valuation decided by the District Court, the High Court alone shall be competent to make an order under this section". What it said was that no matter what the valuation of the original suit, be it Rs. 20,000/- and above or below Rs. 20,000/-, if a case arising out of such suit was decided by the District Court, the case would be amenable to the revisional power of the High Court We are already familiar with the category of case~ where the High Court wields revisional jurisdiction over cases arising out of original suits of a value of Rs. 20,000/- or more. That is the category already covered by the substantive provision in s. 115. The other category covered by the proviso would include those instances, for example where an original suit although of a value making it triable by a court subordinate is transferred to the District Court for trial. Orders passed by the District Court in such a suit could constitute a case decided by it and amenable to the revisional power of the High Court. What must be noted is that the test incorporated in the proviso is the fact that the case has been decided by the District Court. The valuation of the suit is irrelevant. But the proviso cannot be construed to include the case of a revisional order passed by the District Court for that would be in direct conflict with the fundamental structure itself of s. 115 evidencing that a mutually exclusive jurisdiction has been assigned to the High Court and the District Court within its terms. A proviso cannot be permitted by construction to defeat the basic intent expressed in the substantive provision. Har Prasad Singh (supra) and Phoolwati (supra) were considered by a Full Bench of the High Court in M/s Jupiter Funt! (Pvt.) Ltd. v. Dwarka Dlesh Dayal and others (1) and in our judgment the High Court rightly laid down there that the phrase "case arising out of an original suit" occurring in s. 115 does not cover orders passed in revision.

We are of opinion on the first question that the High Court is not vested with revisional jurisdiction under s. 115, Code of Civil Procedureover a revisional order made by the District Court unde•

that section.

(I) A. I. R. 1979 All. 218.

..,

We shall now advert to the second question, whether a revisional A order of the District Court under s. 25, Provincial Small Cause Courts Act, is amenable to the revisional jurisdiction of the High Co urt under s. 1!5, Code of Civil Procedure. Section 25 originally provided :

"25. The High Court, for the purpose of satisfying itself that a decree or order made in any case decided by a Court of Small Causes was according to law, may call for the case and pass such order with:respect thereto as it thinks fit."

Section 25 was amended in its application to the State of Uttar Pradesh

from time to time. The first amendment substituted the District Judge for the High Court, so that the District Judge became the repository of revisional power instead of the High Court. A further amendment, made in 1972, added a proviso, which declared that in relation to any case decided by a District Judge or Additional District Judge exercising the jurisdiction of a Judge of Small Causes the power of revision under s. 25 would vest in the High Court.

The question before us arises in those cases only where the District Judge has exercised revisional power under s. 25. Is an order so made open to revision by the High Court under s. 115, Code of Civil Procedure ? An examination of the several provisions of the Provincial Small Cause Courts Act indicates that it is a self-sufficient

code so far as the present enquiry is concerned. For the purpose of correcting decrees or orders made by a Court of Small Causes the Act provides for an appeal and a revision in cases falling under s. 24 ands. 25 respectively, Cases in which the District Judge and the High Court respectively exercise revisional power, revisional powers are specifically mentioned. A complete set of superior remedies has been incorporated in the Act. Moreover, s. 27 of the Act provides :

"27. Finality of decrees and orde•s.-Save as provided by this Act, a decree or order made under the foregoing provisions of this Act by a Court of Small Causes shall be final."

The Legislature clearly intended that a decree or order made by a Court of Small Causes should be final subject only to correction by the remedies provided under the Provincial Small Cause Courts Act. It is a point for consideration that had s. 25, in its application to the State of Uttar Pradesh' continued in its original form the I:Iigh Court would have exercised the revisional power under s. 25, and no question could have arisen of invoking the revisional power of the High Court under s. 115 of the Code.

All the indications point to the conclusion that a case falling within the

1 4-189SC!/80

.,..

42 SUPREME COUl>.T REPORTS

Provincial Small Cause Courts Act was never intended to be subject to the remedies provided by the Code of Civil Procedure, By way of abundant caution s. 7 of the Code made express provision barring the application of ss. 96 to 112 and 115 of the Code to courts constituted under the Provincial Small Cause Courts Act, Section 7 of the Code merely embodies the general principle against resort to remedies outside the Provincial Small Cause CourtsAct. Although the court of the District Judge is not a court constituted under the Act the general principle continues to take effect. No change in the principle was brought about merely because revisional power under s. 25, before the proviso was added, was now entrusted to the District Judge. It must be remembered that the legislative intention behind the amendment was to relieve the High Court of the burdea of excercising revisional jurisdiction in respect of cases decided under the Provincial Small Cause Courts Act. We are of firm opinion that the central principle continues to hold, notwithstanding the amendment effected in s. 25, that the hierarchy of 1emedies enacted in the Provincial Small Cause Court Act represents a complete and final order of remedies, and it is not possible to proceed outside the Act to avail of a superior remedy provided by another statute.

These considerations were apparently not present before the High Court of Allahabad when it held in Bimla Rani Kohli v. M/s. Bandu Motor Finance (P) Ltd.(l) tha(a revisional order of the District Judge under s. 25, Provincial Small Cause Courts Act could be revised by the High Court under s. 115, Code.of Civil Procedure. In our opinion, the view taken by the High Court is not correct.

Accordingly, we hold that an order passed under s. 25, Provincial Small Cause Courts Act by a District Court is not amenable to the revisional jurisdiction of the High Com t under s. 115, Code of Civil Procedure.

In Civil Appeal No. 2844 of 1979, S.L.P. No. 9104 of 1979, S.L.P. No. 9142 of 1979 and S.L.P. No. 9752 of 1979, the High Court has rejected revision petitions f.led under s. 115, Code of Civil Procedure, against the revisional orders of the District Court under s. 25, Provincial Small Cause Courts Act. On the opinion reached by us that a revision petition under s. 115 is not maintainable against a revisional order under s. 25, the appeal and the associated special leave petitions must be dismissed.

(1) A.J.R. 1972 All. 242.

f )__

S.L.P. No. 9031 of 1979 arises out of an application for an ad interim injunction made in a pending suit. Since then the suit has been dismissed, and an appeal against the decree is pending. As the suit itself has been disposed of, all proceedings for grant of interim relief must be regarded as having lapsed. The Special Leave Petition has become infructuous and must be dismissed accordingly.

It has been urged by the appellant in Vishesh r<:umar v. Shanti Prasad (Civil Appeal No. 2844of1979) that in case this Court is of the opinion that a revision petition under s. 115, Code of Civil Proceurde, is not maintainable, the case should be remitted to the High Court for consideration as a petition under tArticle 227 of the Constitution.

We are unable to accept that prayer. A revision petition under s.115 is a separate and distinct proceeding from a petition under Article 227 -Of the Constitution, and one cannot be idnetified with the other.

In the result, the appeal and the special leave petitions are dismissed. There will be no order as to cost.

P.B .. R.

Appeal and Petition~ dismissed.

B .,1

VISHESH KUMAR

SHANTI PRASAD

March 12, 1980

V. R. KRISHNA IYER

R. S. PATHAK, JJ

Code of Civil Procedure

S. 115

Provincial Small Cause Courts Act

Section 25

section 115

C.P.C

section 25

Section 115

the Code of Civil Procedure

s. 115

s. 115

s. 115

Civil Laws Amendment Act, 1973

The Code of Civil Procedure

s. 115

1st February 1977

s. 115

the Code of Civil Procedure

Section 25

Provincial Small Cause Courts Act

State of U.P.

s. 25

VISHESH KUMAR V. SHANTI PRASAD

s. 115

s. 115

s. 115

s. 25

Provincial Small Cause Courts Act

Code of Civil Procedure

s. 115

Civil Laws Amendment Act, 1973

section 115

s. 25

Provincial Small Cause Courts Act

s. 115

C.P.C

Provincial Small Cause Courts Act

Provincial Small Cause Courts Act

Provincial Small Cause Courts Act

the Code of Civil Procedure

s. 7

ss. 96 to 112 and 115

Provincial Small Cause Courts Act

Section 7

Provincial Small Cause Courts Act

s. 25

s. 25

Provincial Small Cause Courts Act

Pramod SwariijJ

N. K. Agarwal

PATHAK

High Court of Allahabad

Section 115

s. 115

Code of Civil Procedure

s. 115

s. 115

s. 115

7th April, 1970

s. 3

s. 115

s. 115

s. 115

S. 6

s. 115

s. 115

s. 2

s. 115

s. 115

s. 115

S. 2

!st February, 1977

S. 43

Code of Civil Procedure

Parliament

s. 115

Section 97

the Code of Civil Procedure

s. 115

s. 115

s. 115

Amendment Act, 1976

s. 43

s. 6

General Clauses Act, 1897

s. 115

s. 115

s. 115

st August, 1978

s. 3

Code of Civil Procedure

s. 115

s. 115

s. 115

s. 115

s. 115

Amendment Act, 1978

s. 115

Code of Civil Procedure

s. 115

s. 115

s. 25

Prn vincial Small Cause Courts Act

s. 115

s. 115

s. 115

s. 115

s. 115

20th day of September,-1972,

Allahabad High Court

The Code of Civil Procedure

s. 115

s. 115

the Code of Civil Procedure

s. 115

Phoolwati

s. 115

Civil Laws Amendment Act, 1973

s. 115

s. 115

Har Prasad Singh

Phoolwati

s. 115

s. 115

s. 25

Provincial Small Cause Courts Act

s. 1

Code of Civil Procedure

Section 25

Section 25

State of Uttar Pradesh

s. 25

s. 25

s. 115

Code of Civil Procedure

Provincial Small Cause Courts Act

s. 24

s. 27

Provincial Small Cause Courts Act

s. 25

s. 25

s. 115

Provincial Small Cause Courts Act

the Code of Civil Procedure

s. 7

ss. 96 to 112 and 115

Provincial Small Cause Courts Act

Section 7

s. 25

Provincial Small Cause Courts Act

s. 25

s. 25

Provincial Small Cause Courts Act

s. 115

s. 25

Provincial Small Cause Courts Act

s. 115

Code of Civil Procedure

s. 115

Code of Civil Procedure

s. 25

Provincial Small Cause Courts Act

s. 115

s. 25

s. 115

Article 227

Article 227