STATE OF KARNATAKA

v '

PRATAP CHAND & ORS.

March 11, 1981

( 0. CHINNAPPA R EDDY AND BAHARUL ISLAM, JJ. )

Dmgs and Cosmetics Act 194G-Section 18A-Scope of-Information furnished under section 18A alleged to be fictitious-Report of Inspector not provedln.rpector not examined-Validity of report.

Section 34-"person incharge"-Meaning of-Tests to he applied.

All the three respondents (respondents nos. 1 and 2 partners and respondent No. 3, the firm) were prosecuted for the alleged contravention of section I SA, Drugs and Cosmetics Act, 1940 in that when asked by the Drugs Inspector to disclose the name, address and other particulars of the person from whom a certain drug was acquired by them, they gave a fictitious address and that, therefore, they were liable to be convicted under section J8(a) (ii) read with section

18(c) of the Act

The Metropolitan Magistrate convicted respondent no. l (the partner incharge of the business of the firm) and respondent no. 3 (the firm) but acquitted respondent no. 2 on the ground that it was respondent no. 1 who was incharge of the firm and sentenced them variously.

E The High Court summarily dismissed the State's appeal against the acqittaJ

of respondent no. 2 and of all the respondents under section 18A.

Dismissing the appeal,

HELD : Violation of the provisions of section J8A remained unestablished and the defence version remained unrebutted. [202E]

The Assistant Commissioner, Food and Drug Administration ombay , North Circle, deposed that the particulars given by the respondents as to the person (rom whom the drugs were purported to have been acquired were verified by an Inspector, who in his report stated that the name and address given by the respondents were fictitious; but the Inspector has not been examined nor was his report proved. The defence version, therefore, remained unrebutted. (202 D-E)

The second respondent was not liable to be convicted merely because he had the ri'ght to participate in the business of the firm under the terms of the partnership deed. The term "person incharge" refetred to in section 34 must mean that the person should be in overall control of the day to day business of the firm.

A person may be a party to the policy being followed by a firm and yet not be incbarge of its business or a person may be incharge of a business but not in overall charge or may be incharge or only some part of the business. In short, a partner of a firm is liable to be convicted for an offence if he was in

ICARNATAKA V. PRATAP CHAND (Baharulls/arn, J.) 201

f and was responsible to the firm for the conduct of its b t' cha!lle

0ed that the offence was committed with the consent or co~

1.ness or irf it is prov 1 t 1 f nJVance o or

1185 attributable to any neg cc on t 1e part o the partner concerned. [204A-.B]

G.L. Gupta v. D.N. Mehta (1971] 3 S.C.R. 748 applied.

In the instant case respor.dent no. 2 was not in overall control of the business. It was respondent no. 1, who was in that position. [204 C) B

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 91 of 1976.

Appeal by Special Leave from the Judgment and Order dated 29.7.1975 of the Karnataka High Court in Criminal Appeal No. 364 or 1975.

N. Nettar for the Appellant.

A.K. Sen, S.K. Bisaria and V.P. Gupta for the Respondents.

The Judgment of the Court was delivered by

BAHARUL IsLAM, J. This appeal by special leave has been preferred by the State of Karnataka.

2. The three respondents being the partners of the firm, M/s. l>fafatlal and Co., and the firm itself were charged for offences under

~ Sections l 8(c), 18(a) (ii) and 18A of the Drugs and Cosmetics Act,

1940 read with Section 27(a) (ii), 27(a) (i) and Section 28 of the

Drugs Control Act, (hereinafter, the Act). The defence was a plea of "Not Guilty". The Chief Metropolitan Magistrate found respondents

1. and 3, that is, one of the partners and the firm, guilty under Sec-

1100 18(a) (ii) and Section 18(c) of the Drugs and Cosmetics Act and

5entenced respondent No. I to suffer rigorous imprisonment for one

ear under 'ection 18(a) (jj) and to pay a fine of Rs. 500. m default, to suffer simple imprisonment for one month, and ltlltenctd spondents 1 and 3 to pay a nne of Rs. l, OOO tach, Under section 18(c) in default to sutTer simple imprisonment r ' . . d f th or three months. The respondent No. 2 was acquttte 0

two offences as the Magistrate found that it was respondent

:~ 6 1r and not respondent no. 2 who was in char go of the business of , , . m. All the respondnts were acquitted of the offence under

ectJon U!A.

ltil.rtJ;~he appellant preferred an appeal before the High Court of a from the order of acquittal of respondent No. 2 of the

.I •j l '

~ 1

j ' l j

SU1'R£ME COURT REPORTS

(1981) 3 S.C.R.

offence under Section 18(a) (ii) and J8(c) and of all the respondents

under section 1 SA of the Act. The High Coun summarily dismissed the appeal.

4. Section 18A of the Act requires that every person who bas acquired drug or cosmetic, if required, shall disclose to the inspector the name, address and other particulars of the persons from whom the drug or cosmetic was acquired.

The respondents pleaded that they did disclose to the Drugs Inspector, the name, address and other particulars of the person from whom the drugs were acquired, by section 18A of the Act and in support of their defence they rely on Exhibit P. 20, a letter dated 17.7.1971 addressed to the Drugs Controller. The learned Chief Metropolitan Magistrate has found that Exhibit P.20 contained the name, address and other particulars of the person from whom the drugs were claimed to have been acquired as M/s. Mangilal Jayantilal & Company, 65 Princess Street, Second Floor, Bombay, which name and address, according to the prosecution, were fictitious. P. W.3, the

Assistant Commissioner, Food and Drug Administration, Bombay North Circle, has deposed that he got it verified by his Inspector who submitted a report that the above name and address were fictitious.

But the Jnspetor bas not been examined, nor his report proved.

Obviously, therefore, the defence version remained unrebutted and violation of section 18A remained unestablished.

Regarding the acquittal of the 2nd resondent of the offence under section 18 (a) {ii) and section J 8{c), the learned counsel for the State of Karnataka submitted that under section 34 of the Dmgs and Cosmetics Act the firm, as well as its partners were liable to be convicted. Section 34 may be extracted here :-

 .. s. 34. {1) Where an offence under this Act has been committed by a company every person who at the time the offence was committed, was in charge of, and was responsible

to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly :

Provided that nothing contained in the subsction shall render any such person liable to any punishment provided in this Act if he proves tllat the offence was committed without

')

KARNATAKA v. PRATAP CHAND (Baharu/ls/am1 J.) 203

his knowledge or that he exercised all due diligence to prevent A the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence bas been committed with the consent or connivance of or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Bxplanation.-For the purpose of this section-

(a) "company" means a body corporate, and includes a firm or other association of individuals ; and

(b) "director" in relation to a firm means a partner in the D firm."

lt is seen that the partner of a firm is alo; o liable to be convicted for an offence committed by the firm if he was in charge of, and was responsible to, the firm for tbe conduct of the business of the finn or if it is proved that the offence was committed with. the

consent or connivance of, or was attributable to any neglect on the part of the partner concerned. In the present case the second respondent was sought to be made liable on the ground that he aJongwith the first respondent was in charge of the conduct of the business of the firm.

Section 23-C of the Foreign Exchange Regulation Act 1947 which was identically the same as section 34 of the Drugs and Cosmetics Act came up for interpretation in G. L. Gupta

v. D. N. Mehta(l) it was observed as follows :

"What then does the expression " a person in-charge and responsible for the conduct of the affairs of a company mean"?

It will be noticed that the word 'company includes a firm or other association and the same test must apply to a director in-charge and a partner of a firm incharge of a business. It seems to us that in tbe context a person 'in-charge' must mean

that the person should be in over all control of the day to day

(1) (197JJ 3 S.C, R. 748.

204 sun.EME COURT RE'PORT

[1981] 3 S.C.R.

A business of the company or firm. This inference follows from the wording of S. 23C(2). It mentions director, who may be a party to the policy being followed by a company and yet

not be in-charge of the business of the company. Further it mentions manager, who usually is in charge of the business

but not in over-all-charge. Similarly the other officers may B be in charge of only some part of business."

The evidence in the present case shows that it was respondent No. 1 and not respondent No. 2 who was in over all control of the day to day business of the firm.

The second respondent is not liable to be convicted merely because he bad the right to participate in the business of the finn under the terms of the Partnership Deed.

This appeal has no merit and is dismissed.

P.B.R.

Appeals dismissed.

' .

STATE OF KARNATAKA

PRATAP CHAND & ORS

March 11, 1981

BAHARUL ISLAM, JJ.

Dmgs and Cosmetics Act

Section 18A

section 18A

Section 34

Drugs and Cosmetics Act, 1940

section

18(c)

Metropolitan Magistrate

section 18A

section 34

(1971] 3 S.C.R. 748

N. Nettar

A.K. Sen

S.K. Bisaria

V.P. Gupta

BAHARUL IsLAM

State of Karnataka

Drugs and Cosmetics Act

Section 27(a)

Section 28

Section 18(c)

Drugs and Cosmetics Act

section 18(c)

Section 18(a)

section 1

Section 18A

section 18A

Chief Metropolitan Magistrate

Mangilal Jayantilal & Company

Bombay

section 18A

section 18

State of Karnataka

section 34

Section 34

s. 34

Section 23

Foreign Exchange Regulation Act 1947

section 34

Drugs and Cosmetics Act

S. 23C(2)


SURJEET SINGH & ANR.

UNION OF INDIA & ORS.

March 12, 1981

[A.D. KOSHAL AND BAHARUL ISLAM, JJ.]

Whet her service 011 the detenu, whose mother tongue is Hindi of the grounds of detention in English, a language not understood by him, vitiates the detention-Grounds of detention explained to the detenu in Hindi by the Serving Officer-Not enough-Grounds must be supplied in Hindi.

Allowing the petitions, the Court

HELD : The supply to the detenus of the grounds of detention in the English language with which they were not conversant could not be considered to be effective communication to them so as to afford to them a real opportunity of making a representation against the order of detention. Their detention is repugnant to the provisions of Article 22 (5) of the Constitution. The complicated nature or the length of the document, is not a sine qua non for the fulfilment of the requirement that the grounds must be supplied to the detenu in a language. which he understood before the service on him of sueh grounds could be considered a communication thereof to him. [20SC-D, 208E-G]

Harikisan v. The State of Maharashtra & Ors. [1962] Suppl. 2 SCR 918; Habibandhu Das v. District Magistrate, Cuttack and Anr, [1969] l SCR 227;

Nainmal Pratap Mal Shah v. Union of India and Ors. [1980] 4 S.C.C. 427, E followed.

ORIGINAL JURISDICTION: Writ Petition Nos. 5931 and 5932 of 1980.

(Under Article 32 of the Constitution.)

N. M. Ghatate and S. V. Deshpande for the Petitioners.

M. K. Banerjee Addi. Sol. Genl., R. N. Poddar and Miss A.

Subhashini for the Respondents.

The Judgment of the Court was delivered by

KosHAL, J.

By this order we shall dispose of Criminal Writ Petitions Nos. 5931 and 5932 of 1980 in each of which the contention raised by the learned counsel for the petitioners is the same.

In Criminal Writ Petition No. 5931 of 1980, the petitioner H is one Surjeet Singh while the other petition has been filed by a person named Kulwant Singh.

Each of the petitioners was detained on the 13th October, 1980 under the provisions of the National Security Ordinance which now stands replaced by the National Security Act. They were arrested on that date and pn each of them a police officer served an order of detention along with the grounds on which it was based, both the documents being in English.

It is the case of the State and the same has not been controverted before us, that the police officer effecting the service of the two documents explained to the concerned detenu in Hindi what their contents were.

Dr. N. M. Ghatate, learned counsel for the petitioners has challenged the detention of the two petitioners with th~ conten• tion that English was not a language which either of them understood, that this factor rendered it necessary for the grounds of detention to be served on them in Hindi which was their mothertongue and that the same having not been done, there was in law no communication of such grounds to either of them.

D 5.

After hearing learned counsel for the parties, we have no

hesitation in holding that the challenge to the detention is wellfounded in view of the dicta of this Court in Harikisan v. The State of Maharashtra & Others,(1) Hadibandhu Das v. District Magistrate, Cuttack & Anr.,(') and Nainmal Partap Mal Shah v. Union of India and Otlzers,(3)

In the first of these cases an order under the Preventive Detention Act (Central Act IV of 1950) was under challenge. The grounds of detention had been provided to the detenu in English and a request by him for a translation of the same was turned down.

The High Court was of the opinion that so long as English continued to be the official language of the State, the communication of the grounds of detention in that language was enough compliance with the requirements of the Constitution. This opinion did not find favour with Sinha, C.J., who delivered the judgment of this Court and observed :

'If the detained person is conversant with the English language, he will naturally be in a position to understand the gravamen of the charge against him and the facts and circumstances on which the order of detention is based.

But to a

(1) [1962] Supp. 2 S.C.R. 918.

(2) [1969] l S.C.R. 227.

(3) [ 1980] 4 s.c.c. 427.

SURJEET SINGH v. UNION (Koshal, J.) 207

person who is not so conversant with the English language, in order to satisfy the requirements of the Constitution, the detenu must be given the grounds in a language which he can understand, and in a script which he can read, if he is a literate person.

The Constitution has guaranteed freedom of movement throughout the territory of India and has laid down detailed rules as to arrest and detention. It has also, by way of limitations upon the freedcm of personal liberty, recognised the right of the State to legislate for preventive detention, subject to certai_i:i safeguards in favour of the detained person, as laid down in clauses (4) and (5) of article 22.

One of those safeguards is that the detajned person has the right to be communicated the grounds on which the order of detention has been made against him, in order that he may be able to make the representation against the order of detention. In our opinion, in the circumstances of this case, it has not been shown that the appellant had the opportunity, which the law contemplates in his favour, of making an effective representation against his detention.

On this ground alone we declare his detention illegal, and set aside the order of the High Court and the Order of Detention passed against him."

In Hadibandhu's case (supra) also an order under the Preventive Detention Act was impunged with the contention that the grounds of detention had not been supplied to the detenu in the language and script which he understood. The order was struck down by this Court for the reasons appearing in the following passage:

"The grounds in support of the order served on the appellant ran into fourteen typed pages and referred to his activities over a period of thirteen years, beside referring to a large number of court proceedings concerning him and other persons who were alleged to be his associates.

Mere oral explanation of a complicated order of the nature made against the appellant without supplying him the translation in script and language which he understood would, in our judgment amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making a representation against the order."

In Nainmal's case, Fazal Ali, J., who followed Hadibandhu's case, held that the communication of the grounds of detention in a language understood by the detenu was an essential requirement for ·the validity of a detention order which,· in the . absence of such requirement being fulfilled, would be repugnant to. the provisions of . article 22(5) of the Constitution and would thus stand vitiated. And that i~ a view ;, hich has been consistently held by this Court.

6. The facts with which we are here concerned, in so far as they are relevantto the decision of the point canvassed before us, are

on all fours with those of the . three cases cited above. As already pointed out, the grounds of detention were supplied to the two petitioners in the English language-a language with which they were not conversant. The service of the grounds on them in that manner could not be considered under the circumstances to be effective communication to them thereof so as to afford to them a real opportunity of making a representation against the order of detention.

7. It is true, as pointed out by the learned Additional Solicitor General, that in Hadibandhu's case (supra) the grounds of detention covered numerous pages and related to a long period of time and, according to this Court, contained "a complicated order 0 • The complicated nature er the length of the document, however, was only mentioned incidentally by this Court and was not meant to be a sine qua non for the fulfilment of the requirement that the groui1ds must be supplied to the detenu in a language which he understood before the service on him of such grounds could be considered a communication thereof_to him for the purposes of the Preventive Detention Act.

In the result both the petitions succeed and are accepted.

The detention of each of the petitioners is held to be repugnant to the provisions of article 22(5) of the Constitution and is struck down on that account. Both of them are directed to be set at liberty_ forthwith, in so far as these petitions are concerned.

V.D.K.

Petitions allowed. ·

SURJEET SINGH & ANR

UNION OF INDIA & ORS

March 12, 1981

A.D. KOSHAL

BAHARUL ISLAM, JJ.

Article 22

Article 32

S. V. Deshpande

M. K. Banerjee

R. N. Poddar

A.

Subhashini

KosHAL

Surjeet Singh

Kulwant Singh

13th October, 1980

National Security Act

N. M. Ghatate

Central Act IV of 1950

Sinha

India

article 22

Hadibandhu

Nainmal

Fazal Ali

article 22(5)

article 22(5)

V.D.K.


~---

_ _).

STATE OF RAJASTHAN

SMT. MANBHAR ETC.

March 12, 1981

[A.D. KoSHAL AND BAHARUL ISLAM, JJ.J

Criminal Procedure Code, Section 378 (i}-Deputy Govt. Advocate whether means Public Prosecutor-Section 24 read with clause (u) of section 2-Authority of the Advocate General.

The Advocate General of the Appellant State issued notification under section 94 read with clause (u) of section 2 of the Code of Criminal Procedure published on 25th of September, 1974, directing that three categories of various law officers of the Government including the Deputy Govt. Advocate shall have the authority to act and, plead and argue in all matters covered by the Code.

The High Court held that the Deputy Govt. Advocate had no locus standi D under the Code of Criminal Procedure to prefer an application under section 378 thereof for leave to appeal against an order of acquittal recorded by a lower Court in a murder ease. The respondent contended that an application under Section 378 would be incompetent unless its contents disclosed that it was being presented by a Public Prosecutor.

Accepting the appeals E

HELD : (I) The High Court was not justified in throwing out the application presented to it as one having been filed by a person incompetent to do so.

For the application to be treated as incompetent, the High Court was bound to enquire into the status of the person presenting it and could throw it out only if it was found as a fact that he did not enjoy the status of a Public Prosecutor. Such a status is for all practical purposes settled by the notification dated 25th September, 1974, of which after its publication in the Government Gazette, the High Court could take judicial notice.

[211 G, 212 B-C]

2(i) The Advocate General being admittedly a Public Prosecutor for the State High Court, he had the authority by virtue of the provisions of clause (u) of section 2 of the Code to issue directions authorising other persons to act; and once a person was so authorised, he would be Public Prosecutor for the purpose of the Code. [21JE-F]

(ii) A Deputy Government Advocate beinga person so authorised under the notification dated 25th September, 1974, is thus a Public Prosecutor having full competence to present an application under section 378 of the Code. [211F-G]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 285 of 1977.

210 SUPil.EME COURT REPORT

(1981] 3 S.C.R.

From the Judgment and Order dated 29.7.1974 of the Rajasthan High Conrt in D. B. Cr. Leave to Appeal No. 839/74.

AND

Criminal Appeal Nos. I 0 & I 1 of 1976.

Appeals by special leave from the Judgment and Order dated 29.7.1974 of the Rajasthan High Court in D.B. Criminal Misc.

Leave to Appeal No. 857/74 and D.B. Criminal Appeal No. 350/74.

Badri Dass Sharma for the AppelJant in all the Appeals.

S. Balakrishnan for RR in Criminal Appeal No. 10/76.

The Judgment of the Court was delivered by

KosHAL, J.

By this Judgment we shall dispose of three appeals, viz., Criminal Appeals Nos. 10 and 11 of 1976 and Criminal Appeal 285 of 1977 in each of one of which the question arising for determination by us is the same.

The first of them is by Special leave granted by this Court and the other two are by certificate granted by the High Court of Rajasthan against its three orders dated 29th July, 1974, all holding that the Deputy Government Advocate of Rajasthan had no locus standi under the Code of Criminal Procedure thereinafter referred to as the Code) to prefer an application' under section 378 thereof for leave to appeal on behalf of the State against an order of acquittal recorded by a lower court in a murder case.

The releunt provisions of the Code are sub-section (I) of section 378, sub-section (1) of section 24 and clause (u) of section 2.

The same are reproduced below in that order:-

"378(1) : Save as otherwise proTided in sub-section (2) and subject to the provisions of sub-sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acqtiittal passed by any Court other than a High Court or an order of acquittal passed by the Court of Session in revision.

24. (J) : For every High Court, the Central Government or the State Govefllment shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint

RAJ AS THAN v. SMT. MA NB HAR ETC. (Kasha!, J.) 211

one or more additional Public Prosecutors, for conducting in A such Court, any prosecution, appeal or other proceeding an behalf of the Central Government or State Government, as the case may be.

2(u) : "Public Prosecutor" means any person appointed under section 24, and includes any person actin~ under the B directions of a Public Prosecutor."

It will be seen that under sub-section (I) of section 378, only a Public Prosecutor can present an appeal to the High Court from an original or appellate order of acquittal passed by any court subordinate to the1High Court, if so directed by the State Government. Again, for a person to be a Public Prosecutor, it is necessary that he is either appointed as suc11 under section 24 or acts under the directions of a Public Prosecutor so appointed.

3 Learned counsel for the State has referred to Notification No. F. 32(1) Judl/74 dated 30.3.1974 issued by the State Government of Rajasthan appointing the Advocate General of the State to be a Public Prosecutor under section 24 of the Code. Another notification on which he relies is Notification No. P-36/AG/D dated l.4.74 published on 25th September, 1974 issued by the then Advocate General of Rajasthan under section 24 read with clause (u) of section 2 of the Code and directing that three categories of various Law Officers of the Government including the Deputy Government Advocate shall have the authority to act, plead and argue in all matters covered by the Code. These two notifications read together in our opinion, clinch the issue in favour of the State. The Advocate General being admittedly a Public Prosecutor for the State High Court he had the authority by virtue of the provisions of clause (u) of section 2 of the Code to issue directions authorising other persons to act; and once a person was so authorised, he would be a Public Prosecutor for the purpose of the Code. A Deputy Government Advocate being a person so authorised under the notification dated 25th September, 1974 above mentioned is thus a Public Prosecutor having full competence to present an application under section 378 of the Code. In this view of the matter, the High Court was not justified in throwing out the application presented to it as one having been filed by a person incompetent to do so.

Mr. Balkrishnan, learned Counsel for the respondent in Criminal Appeal No. IO of 1976 has contended that as the Deputy Government Advocate did not specify his status as Public Prosecutor

SUPREME COURT REPORTS

[1981) 3 S.C.R.

A in the application rejected by the High Court, that application could not be regarded as having been filed by a competent person.

According to learned counsel, an application under section 378 would be incompetent unless from its contents disclosed that it was being presented by a Puplic Prosecutor. We do not agree with this contention and that for two reasons.

Firstly, no principle of law B has been brought to our notice that if the proper designation of a person does not appear on a document authenticated by him, that document would lose its authenticity, even though that person factually holds such designation. For the application to be treated as incompetent, the High Court was bound to enquire into the status of the person presenting it and to throw it out only if it was found as a fact that he did not enjoy the status of a Public Prose- _J C cutor. Secondly, such status is for all practical purposes settled by

the notification dated 25th September, 1974 of which, after its publication in the Governmeut Gazette, the High Court could take judicial notice.

Had that been done, the problem would hot have arisen as the Deputy Government Advocate would have been found to be holding the status of a Public Prosecutor.

For the reasons stated, we accept all the three appeals and set aside the impugned or'ders with a direction that the applications made under section 378 of the Code shall be heard and decided by the High Court on merits,

E N.K.A.

Appeals allowed.

STATE OF RAJASTHAN

MANBHAR ETC

March 12, 1981

A.D. KoSHAL

BAHARUL ISLAM, JJ

Criminal Procedure Code

Section 378

Section 24

section 2

section 94

section 2

Code of Criminal Procedure

section 378

Section 378

25th September, 1974

section 2

section 378

Badri Dass Sharma

S. Balakrishnan

KosHAL

High Court of Rajasthan

Code of Criminal Procedure

section 378

section 378

section 24

section 2

Central Government

section 24

section 378

section 24

section 24

section 24

section 2

section 2

section 378

Balkrishnan

section 378

section 378


AHMEDABAD MANUFACTURING & CALICO

PRINTING CO. LTD.

WORKMEN & ANR.

March 12, 1981

[ A.D. KOSHAL AND R.B. MISRA, JJ. ]

Special leave petition allowed to be withdrawn unconditionally-Whether amounts to a dismissal and,..therefore, a bar to entertain a fresh petition under Article 226 of the Constitution on the same/acts and grounds taken in the special leave petition.

The Industrial Tribunal, Ahmedabad, on a dispute referred to it under section 10(2) of the Industrial Disputes Act, 1947 took up for consideration four demands for basic wages and adjustment, dearness allowance, gratuity and retros: pectivity of the demands of the workmen. The Tribunal gave its award on 30th of November 1971 which was published on 20th January, 1972 in the Maharashtra Government Gazette.

The appellant company, feeling aggrieved by the award, filed in the Supreme Court a petition for spedal leave to appeal under Article 136 of the Constitution. Pursuant to a notice, the respondent workmen put in appearance and filed a counter affidavit. After some arguments the appellant Company at its request was permitted to withdraw the leave petition as per the order of the Court dated 21st of August, 1972 which reads : "Upon hearing counsel the Court allowed the special leave petition to be withdrawn". Four days thereafter the company filed a petition under Article 226 of the Constitution before the High Court challenging the award. The petition was virtually based on the same facts and grounds as were taken in the special leave petition before the Supreme Court. The learned single Judge who heard the petition determined the circumstances on the basis of the respective affidavits filed by the parties in which the comoany unconditionally withdrew its special leave petition and in view of those circumtsances equated the withdrawal of the leave petition with the dismissal of the same. Relying on Vasant Vithal Palse and Ors. v. The Indian Hume Pipe Co. Ltd. and Anr. [1970] 2 LLJ 328, a decision .of that court, the learned Judge dismissed the writ petition in fimine.

A Letters Patent Appeal against the said order of dismissal also met the same fate. However, a petition under Article 133 of the Constitution for a certificate of fitness to appeal to the Supreme Court was accepted by the said Division Bench and a certificate was granted and hence the appeal.

Allowing the appeal, the Court

HELD : I. Permission to withdraw a special leave petition cannot be equated with an order of dismissal. If a non-speaking order of dismissal cannot operate as res judicata for entertaining a fresh writ petition on the same facts and grounds taken in the special leave petition, an order permitting the withdrawal of the writ petition for the same reason cannot so operate. [219B,222C-D)

A Workmen of Cochin Port Trust v. Board of Trustees of Cochin Port Trust and Anr., [1978]13 SCR 971, followed.

Punjab Beverages Pvt. Ltd. v. Suresh Chand and Anr., [1978] 3 SCR 370; "f Hoshnak Singh v. Union of India and Ors., [1979] 3 SCR 399; Daryao and Ors. v.

The State of U.P. and Ors., [1962] I SCR 574, discussed.

B Vasant Vithal Palse and Ors, v The Indian Hume Pipe Co. Ltd. and Anr.,

[1970] 2 LLJ 328; Management of Western India Match Co. Ltd., Madras v.

The Industrial Tribunul, Madras and Anr. A.LR. 1958 Mad. 398, distinguished.

2. The order of a court has to be read as it is. If the Supreme Court intended to dismiss the petition at the threshold. it could liave said so explicitly.

In the absence of any indication in the order itself, it will not be proper to enter into the arena of conjecture and to come to a conclusion on the basis of extraneous evidence that the Supreme Court intended to reject the leave petition. If the Order of the Supreme Court is read as it is there is not the slightest doubt that the Supreme Court had. allowed the company to withdraw the leave petition, in the instant case. The approach of the High Court in having perused the affidavits filed by the parties to know the circumstances under which the leave petition was withdrawn is not correct. [217 C-D]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1678 of 1973.

From the Judgment and Order dated 4.7.1973 of the Bombay High Court in Appeal No. 142/72.

F. S. Noriman, Y. S. Chitde, 0. C. Mathur, K. J. John, Sri Narain, Narayan B. Shetya and M. Mudgal for the Appellant.

P. D. Damania, B. R. Aganvala and P. G. Gokhale for Respondents 1-2.

M. K. Ramamurthy and Jatinder Sharma for Respondent 3.

Janardhan Sharma for the Interveners.

The Judgment of the Court was delivered by

MISRA, J.

The present appeal by certificate is directed against the judgment dated 4th of July, , 1973 of the High Court of Bombay in a Letters Patent Appeal arising out of a petition under Article 226 of the Constitution.

The facts leading up to this appeal lie in a narrow compass.

H The appellant-the Ahmedabad Manufacturing and Calico Printing Co. Ltd. (hereinafter. called the Company)-is predominantly a textile manufacturer but has also factories in Bombay manufacturing

CALICO PRINTING v. WORKMEM (Misra, J.) 215

heavy chemicals and engages about 750 workmen in three such factories.

A dispute arose between the Company and the said workmen in respect of seventeen demands raised by them through their union. The disoute was referred to the Industrial Tribunal under section 10(2) of the Industrial Disputes Act, 1947.

Out of the demands of the workmen the Tribunal took up for consideration only four demands, that is, demands Nos. l, 2, 15 and 16 respectively for basic wages and adjustment, dearness allowance, gratuity and retrospective effect of the demands. The Tribunal gave its award on 30th of November 1971 and sent a copy thereof to the parties.

The award was published on 20th of January, 1972 in the Maharashtra Government Gazette.

Under the rules it was to be effective after one month of its publication in the Gazette.

The Company, feeling aggrieved by the award, filed with this Court a petition for special leave to appeal under Article 136 of the Constitution (the leave petition, for short).

Pursuant to a notice, the respondent union put in appearance and filed a counter affidavit.

It appears that after some arguments the appellant chose to withdraw the leave petition.

As much turns upon the order .of this Court dated 21st of August, 1972 permitting withdrawal, it would be appropriate to quote the same :

"Upon hearing counsel the Court allowed the special

leave petition to be withdrawn." E

Four days thereafter the Company filed a petition under Article 226 of the Constitution before the High Court challenging the award. That petition was virtually based on the same facts and

l grounds as were taken in the leave petition before this Court.

The respondent union appeared and filed a counter affidavit urging that the petition be dismissed in limine.

A rejoinder affidavit was filed on behalf of the Company.

On the date of hearing three preliminary objections were raised on behalf of the union respondent. In the present appeal we are, however, concerned only with one of them, namely, that the High Court should not exercise discretion in granting relief to the Company under Article 226 of the Constitution, after the withdrawal of the leave position unconditionally.

This objection prevailed with the High Court. The learned H Single Judge determined the circumstances on the basis of the respective affidavits filed by the parties, in which the Company

unconditionally withdrew its leave petition and in view of those circumstances he equated the withdrawal of the leave petition with the dismissal of the same. Relying on Vasant Vithal Palse and Ors. v.

The Indian Hume Pipe Co. Ltd. and Anr.(1) he held that it was not a fit case for exercise of the Court's discretionary power to admit the writ petition and accordingly dismissed the same in limine.

The Company filed a Letters Patent Appeal but the Division Bench dismissed the same and confirmed the order of the learned Single Judge. The preliminary objection which weighed with the High Court was repeated on behalf of the union respondent before the Division Bench in appeal with two contentions : (!) the unconditional withdrawal by the Company of its leave petition in the circumstances found by the learned Single Judge is a bar to the competence of the Court to entertain the petition under Article 226 of the Constitution. In other words, the High Court has no jurisdiction to grant rule nisi under Article 226 in view of the withdrawal of the petition under Article 136 of the Constitution; (2) The learned Single Judge has rightly dismissed the petition in limine under Article 226 of the Constitution in the exercise of his discretion on the ground that the leave petition based on the same contention was unconditionally withdrawn.

Although the Division Bench discussed the first contention but refused to decide it as it was taken for the first time before it in appeal. The second contention was, however, accepted by the Division Bench. The High Court did not consider the other cases cited on behalf of the Company as it thought that the point in question was concluded by a Division Bench of that Court in Vasant Vithal Palse's case (supra). The Company thereafter moved a petition under Article 133 of the Constitution for a certificate of fitness to appeal to the Supreme Court which was granted by the High Court and this is how the present appeal comes before us.

Two questions arise for consideration in this appeal :(I) Whether unconditional withdrawal of the leave petition would amount to its dismissal ? (2) If so, what would be its impact on the petition under article 226 of the Constituti0n ?

It was contended for the appellant that the order of this Court permitting the appellant to withdraw the leave petition H should be read as it is and that so read the order only means that

(I) [1970] 2 L.L.J. 328.

the Company had withdrawn the leave petition. It was urged that A the mere fact that the appellant chose to withdraw the leave petition after some arguments will not alter the nature of the order and that by no stretch of imagination can it be said that the leave petition had been dismissed by this Court. It may be, it was argued that the Company chose to withdraw the leave petition on the ground that this Court was not favourably inclined to grant it or Bthat the Company chose to avail of a better remedy before the High Court under Article 226 of the Constitution, which had a wider scope.

The High Court perused the affidavits filed by the parties to know the circumstances under which the leave petition was withdrawn, but in our opinion that is not a correct approach. The order of a Court has to be read as it is. If this Court intended to dismiss the petition at the threshold, it could have said so explicitly.

In the absence of any indication in the order itself, it will not be proper to enter into the arena of conjecture and to come to a conclusion on the basis of extraneous evidence that this Court intended to rejeet the leave petition. If the Order of this Court is read as it is there is not the slightest doubt that this Court had allowed the Company to withdraw the leave petition, and if that be so, it would be idle to argue that the leave petition had been dismissed at the threshold.

Reliance was placed on behalf of the appellant on Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust & Anr.(1) In that case a special leave petition had been dismissed in limine with a non-speaking order. This Court dealing with the impact of that order observed as follows :

"If by any judgment or order any matter in issue has been directly and explicitly decided the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceeding between the same parties. The principle of res judicata also comes into play when by the judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implication; then also the principle of res }udicata on that issue is directly applicable."

(!) (1978] 3 S.C.R. 971.

A Then the Court proceeded to consider whether the .matter in issue has been either explicitly or implicitly decided. Dealing with that aspect of the matter the Court further observed :

"Indisputably nothing was expressly decided. The effect of a non-speaking order of dismissal without anything more indicating the grounds or reasons of its dismissal must by necessary implication, be taken to have decided that it was not a fit case where special leave should be granted. It may be due to several reasons.

It may be one or more. It may also be that the merits of the award were taken into consideration and this Court felt that it did not require any interference.

But since the order is not a speaking order, one finds it difficult to accept the argument put forward on behalf of the appellants that it must be deemed to have necessarily decided implicitly all the questions in . relation to the merits of the award. A writ proceeding is a different proceeding.

Whatever can be held to have been decided expressly, implicitly or even constructively while dismissing the special leave petition cannot be re-opened.

But the technical rule of res judicata, although a wholesome rule based. on public policy, cannot be stretched too far to bar the trial of identical issues in a separate proceeding merely on an uncertain assumption that the issues must have been decided. It is not safe to extend the principle of res judicata to such an extent so as to found it on mere guesswork .... If the writ petition is dismissed by a speaking order either at the threshold or after contest, say, only on the ground of !aches or the availability of an alternative remedy, then another remedy open in law either by way of suit or any other proceeding obviously will not be barred on the principle of res judicata. Of course, a second writ petition on the same cause of action either filed in the same High Court or in another will not be maintainable because the dismissal of one petition will operate as a bar in the entertainment of another writ petition. Similarly even if one writ petition is dismissed in limine by a non-speaking order 'dismissed', another writ petition would not be maintainable because even the one-word order, as we have indicated above, must necessarily be taken to have decided impliedly that the case is not a fit one for exercise of the writ jurisdiction of the High Court. Another writ petition from the same order or decision. will not lie.

But the position is substantially different when a writ petition is dismissed either at the threshold or

after contest without expressing any opinion on the merits of the matter; then no merit can be deemed to have been necess arily and impliedly decided and any other remedy of suit or other proceeding will not be barred on the principle of res judicata."

If a non-speaking order of dismissal cannot operate as res judicata, B an order permitting the withdrawal of the leave petition for the same reason cannot so operate. The case in hand stands on a still better footing than the case of Workmen of Cochin Port Trust (supra).

Next reliance was placed on Punjab Beverages Pvt. Ltd. v.

Suresh Chand & Anr.(1) In that case one of the contentions raised was that no application for approval was made by the appellant to the Industrial Tribunal and that there was thus contravention of section 3J (2) (b) of the Industrial Disputes Act, 1947. An application for approval was in fact made under section 33 (2) (b), but that was withdrawn and the argument advanced was that the withdrawal was tantamount to refusal of approval, that the ban imposed by section 33 (2) (b), therefore, continued to operate and that the order of dismissal passed by the appellant was void and inoperative.

The contention was, however, repelled and this Court observed :

I "Where, however, the application for approval under section 33 (2) (b) is withdrawn by the employer and there is no decision on it on rrierits, it is difficult to see how it can be said that the approval has been refused by the Tribunal. The Tribunal having had no occasion to consider the application on merits there can be no question of the Tribunal refusing approval to the employer. It cannot be said that where the application for approval is withdrawn, there is a decision by the Tribunal to refuse to lift the ban. The withdrawal of the application for approval stands on the same footing as if no application under section 33 (2) (b) has been made at all."

In Hoshnak Singh v. Union of India & Ors.(2j an earlier petition was dismissed by a non-speaking one word order dismissed'. A second petition after pursuing the alternative remedy was filed.

A question arose whether the same would be barred by the principles analogous to res judicata.

This Court held that the second petition would not be so barred because the cause of action was entirely

(I) [1978] 3 S C.R. 370.

(2) [1979] 3 S.C.R. 399.

A different and the dismissal could not stand in the way of the petitioner invoking the jurisdiction of the High Court under Article 226 of the Constitution.

Reliance was next placed on Daryao & Ors. v. The State of U.P. & Ors.(1) In that case the previous petition for a writ filed by the petitioner before the High Court was withdrawn. The High Court, therefore, dismissed the said petition with the expres observation that the merits had not been considered by the High Court in dismissing it and that, therefore, no order as to costs was passed.

It was held by this Court that the order dismissing the writ petition as withdrawn could not constitute a bar of res judicata.

Counsel for the respondent union has contended that the order of rejection may be either explicit or implicit and that it can be shown from the circumstances of the present case that the leave petition was withdrawn only after full arguments when the appellant found that this Court was not favourably inclined to grant it, In these circumstances it is argued that the order of withdrawal would amount to the dismissal of the leave petition and that in this view of the matter the High Court in the sound exercise of its discretion was justified in dismissing the writ petition in limine.

In support of this contention the learned counsel relied upon Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat .(2) In that case the respondent first filed a revision under section 115 of the Code of Civil Procedure. The revision was, however, dismissed. Thereupon the respondent moved a petition under Articles 226 and 227 of the Consti-· tution challenging the same order of the appellate court.

The High Court held that in spite of the dismissal of the revision petition, it could interfere under Articles 226 and 227 of the Constitution on a proper case being made out. This Court, however, reversed the order of the High Court holding that even on the assumption that the order of the appellate court had not merged in the order of the

Single Judge who had disposed of the revision petition, a writ petition ought not to have been entertained by the High Court when the respondent had already chosen the remedy under section 115 of the Code of Civil Procedure and that if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of

(1) [1962] l S.C.R. 574.

.-A.

the same order of the subordinate court. The facts of that case are A materially different from those of the case in hand and that case is not of much assistance in solving the problem before us.

Jn Vasant Vithal Palse's case (supra} the trade union filed an application for special leave to appeal to this Court and the same was rejected. Thereafter the individual workmen filed a petition under Article 226 of the Constitution challenging the award without disclosing the fact that application for special leave made to the Supreme Court by the trade union had been rejected.

The writ petition was dismissed on the grounds : (I) that the material facts had been concealed, and (2) that the leave petition filed by the trade union had been dismissed by the Supreme Court. That case is also distinguishable on facts, firstly because there is no concealment of facts in the present case, and, secondly, the Supreme Court in that case had dismissed the application for special leave. In the cas.e in hand the petition has only been permitted to be withdrawn. It is on the basis of that decision that the High Court had dismissed the petition in limi11e.

Next, reliance was placed on A. M. Allison v. B. L. Sen.(') This Court dealing with the writ of certiorari observed as follows :

"A writ of certiorari cannot be issued as a matter of course. The High Court is entitled to refuse the writ if it is satisfied that there was no failure of justice. The Supreme Court declines to interfere, in appeal, with the discretion of the High Court unless it is satisfied that the justice of the case requires such interference."

There is no quarrel with the proposition that a writ of certiorari is not issued as a matter of course and that the petitioner has to satisfy the Court that his rights have been infringed so that there has been failure of justice. In the instant case the appellant chose to file a petition for leave to appeal to the Supreme Court but eventually withdrew the petition and thereafter invoked the jurisdiction of the High Court under Article 226 of the Constitution and the High Court in its discretion chose to dismiss the writ petition in !imine only on the ground that the petitioner had moved an application for special leave before the Supreme Court and withdrew the same unconditionally.

In view of the law laid down by this Court in a recent decision in the case of Workmen of Cochin Port Trust (supra) the decision in Aflison's case has lost its efficacy.

(I) [1957] S.C.R. 359.

In the Management of Western India Match Co. Ltd., Madras

v. The Industrial Tribunal, Madras & Am.,(1) the Supreme Court had declined to exercise its discretion in favour of the petitioner by grantiug leave unc'.er Article 136 of the Constitution against an award of the Industrial Tribunal without giving any reasons. The Madras High Court held that in the circumstances of the case it would not be a proper exercise of its discretion in admitting the writ petition despite the evidence that the Industrial Tribunal failed to give opportunity to the petitioner to produce evidence and thus violated a principle of natural justice, when the Supreme Court had dismissed the leave petition against the award. In that case the Supreme Court had dismissed the leave petition. The facts were thus materially different from the facts of the present appeal.

Besides, this Court has taken a different view in the recent case of Workmen of Cochin Port Trust (supra),

After having analysed the various cases cited, we are of the view that permission to withdraw a leave petition cannot be D equated with an order of its dismissal.

We , also come to the conclusion that in the circumstances of the case the High Court has not exercised a proper and sound discretion in dismissing the writ petition in limine on the sole ground that the application for special leave on the same facts and grounds had been withdrawn unconditionally.

We accordingly allow the appeal and set aside the impuged order and the order of the learned Single Judge dated 9th November, 1972 in writ petition No. 583 of 1972 and send the case back to him for considering the writ petition on merits. There is, however, no order as to costs.

S.R.

Appeal allowed.

(1) A.LR. 1958 Mad. 398.

WORKMEN & ANR

March 12, 1981

A.D. KOSHAL

R.B. MISRA, JJ.

Article 226

Industrial Tribunal, Ahmedabad

section 10(2)

Industrial Disputes Act, 1947

30th of November 1971

20th January, 1972

Supreme Court

Article 136

of August, 1972

Article 226

Article 133

[1978] 3 SCR 370

[1979] 3 SCR 399

CIVIL APPELLATE JURISDICTION

Bombay High Court

F. S. Noriman

Y. S. Chitde

. C. Mathur

K. J. John

Narain,

Narayan B. Shetya

M. Mudgal

P. D. Damania

B. R. Aganvala

P. G. Gokhale

M. K. Ramamurthy

Jatinder Sharma

Janardhan Sharma

MISRA

Article 226

Bombay

section 10(2)

Industrial Disputes Act, 1947

20th of January, 1972

Article 136

21st of August, 1972

Article 226

Article 226

Article 226

Article 226

Article 136

Article 226

Vasant Vithal Palse

Article 133

article 226

Article 226

(1978] 3 S.C.R. 971

Workmen of Cochin Port Trust

section 3J

Industrial Disputes Act, 1947

section 33

section 33

section 33

section 33

[1978] 3 S C.R. 370

[1979] 3 S.C.R. 399

Article 226

section 115

the Code of Civil Procedure

Articles 226 and 227

Articles 226 and 227

section 115

the Code of Civil Procedure

Jn Vasant Vithal Palse

Article 226

Article 226

Aflison

Industrial Tribunal, Madras

Article 136

Madras High Court

9th November, 1972


GUDA VIJAYALAKSHMI

GUDA RAMCHANDRA SEKHARA SASTRY

March 13, 1981

[ V.D. TULZAPURKAR AND AMRENDRA NATH SEN, JJ.]

Transfer of proceedings under the Hindu Marriage Act-Power of the Supreme Court to transfer under section 25 of the Civil Procedure Code-Whether section 25 C.P.C. gets excluded by reason 0{ provisions of sections 21 and 21A of the Hindu Marriage Act, 1955.

The petitioner (wife) filed a suit (O.P. 72/79) in forma pauperis seeking maintenance from the respondent (husband) in the court of subordinate Judge, Elum (Andhra Pradesh). On the receipt of the notice of the suit, the respondent filed a divorce suit (Petition Case No. 28/1980) against the wife under section 13 , of the Hindu Marriage Act, 1955 in the court of the District Judge, Udaipur (Rajasthan). By the instant transfer petition filed under section 25 C.P.C.,

1908, the wife sought to get the suit at Udaipur transferred to Eluru.

A preliminary objection was raised to the effect that section 25 of the Civil Procedure Code, which gets excluded by reason of the provisions of sections 20 and 21 of the Hindu Marriage Act, 1955, is not applicable to proceedings under the said Act and as such the Supreme Court has no power to transfer the husband's suit from Udaipur District Court, Udaipur (Rajasthan) to Eluru District Court, Eluru (A.P.).

Rejecting the preliminary objection, the Court

HELD : Per curiam

On merits, it is expedient for the ends of justice to transfer the husband's suit pending in the District Court Udaipur (Rajasthan) to the District Court at Eluru (Audhra Pradesh), where both the proceedings could be tried together and for that purpose, the wife is agreeable to have her maintenance suit transferred to the District Court at Eluru (A.P.). [226 A-Bl

Per Tulzapurkar J.

1. It will invariably be expedient to have a joint or consolidated hearing or trial by one and the same Court of a husband's petition for restitution of conjugal rights on the ground that the wife has withdrawn from his society withont reasonable excuse under section 9 of the Hindu Marriage Act and the wife's petition for judicial separation against her husband on ground of cruelty under section 10 of the said Act in order to avoid conflicting decisions being rendered

by twG> different Courts. In such a situation rnsort will have to be had to tltc!

A powers under sections 23 to 25 of the Civil Procedure Code for directing transfer of the petitions for a consolidated hearing. [228 G-H, 227 A]

2:1. On a proper construction of the relevant provisions, it cannot be said that the substantive provision contained in section 25 Civil Procedure Code is excluded by reason of section 21 of the Hindu Marriage Act. 1955. [226 FJ

2 ;.2. In terms, section 21 C.P.C. does not make any distinction between procedural and substantive provisions of C.P.C. and all that it provides is that the Code, as far as may be, shall apply to all proceedings under the Act and the phrase "as far as may be" means and is intended to exclude only such provisions of the Code as are or may be inconsistent with any of the provisions of the Code. It is impossible to say that such provisions of the Code as partake of the character of substantive law are excluded by implication as no such implication can be read into section 21 of the Act and a particular provisio.n of the Code irrespective of whether it is procedural or substantive will not apply only if it is inconsistent with any provisions of the Act. [226 G-H, 227 A-BJ

3. Section 21A of the Hindu Marriage Act, 1955 does not exclude the power of transfer conferred upon the Supreme Court by the present section 25 C.P.C., in relation to proceedings under that Act. The marginal note of section 21 A itself makes it clear that it deals with power to transfer petitions and direct their joint or consolidated "trial in certain cases" and is not exhaustive.

Section 21A does not deal with the present section 25 C.P.C. which has been substituted by an amendment which has come into force with effect from February 1, 1977 (section 11 of the Amending Act 104, 1976). By the amendment very wide and plenary power has been conferred on the Sllpreme Court for the first time to transfer any suit, appeal or other proceedings from one High Court to another High Court or from one Civil Court in one State to another Civil Court in any other State throughout the country. Conferal of such wide and plenary power on the Supreme Court could not have been in contemplation of Parliament at the time of enactment of section 21 A of the Hindu Marriage Act, 1955. [227 C-D, F-H, 228 A-BJ

Smt. Rama Kanta v. Ashok Kumar, AIR 1977 Punjab & Haryana 373 and F P,.iyavari Mehta v. Priyanath Mehta, AlR 1980 Bombay 337, overruled.

Per Amre11dra Nath Sen, J.'

...

I. A plain reading of section 25 C.P.C. clearly indicates that very wide jurisdiction and powers have been conferred on the Supreme Court to transfer any suit, appeal or any other proceedings from a High Court or other Civil Court in any State to a High Court or other Civil Court in any other State for the ends of justice. Supreme Court enjoys the power and jurisdiction to entertain the transfer application under section 25 of the Code of Civil Procedure. [230 F, 233 DJ

2: t. Sections 21 and 21A of the Hindu Marriage Act do not in Ut?Y H way, exclude, effect or curtail the power conferred on the Supreme Court under section 25 of the Code of Civil Procedure. If the jurisdiction clearly :onfer.red

G. VIJAYALAKSHMI v. G. RAMACHANDRA (Tulz:ipurkar, J.) 225

en any court has to be ouited, the exclusion of such jurisdiction must be made in clear and unequivocal terms. [232E, 2330]

2 : 2.

Section 21 of the Hindu Marriage Act only provides that "all proceedings under the Hindu Marriage Act shall be regulated as far as may be by the Code. of Civil Procedure, 1908". Section 21 of the Hindu Marriage Act does not deal with the question of jurisdiction of any court and it cannot be construed to exclude the jurisdiction conferred on the Supreme Court under section 25 C.P.C. [232 E-G]

2: 3.

Section 21A of the Hindu Marriage Act has, indeed, no bearing on the question of jurisdiction conferred on the Supreme Court under section 25 C.P.C. Section 21 A has no application to the case of transfer of any suit or proceeding from one State to another. [233 B-C]

2 : 4. The Supreme Court must necessarily enjoy the power and jurisdiction under the provisions of section 25 C.P.C. of transferring such a suit er proceeding for the ends of justice unless the pO\yer and jurisdiction of the Supreme Court are specifically taken away by any statute. [2320-E]

3. Section 25 of the Code of Civil Procedure came into force after D section 21 and 21A of the Hindu Marriage Act have been incorporated in1the

Hindu Marriage Act, 1955 and as such section 25 of the Code overrides sections 21 and 21 A of the Hindu Marriage Act. [233 A-El

ORIGINAL JURISDICTION : Transfer Petition No. 36 of 1980.

Petition under section 25 of the Code of Civil Procedure for transfer of case No. 28 of 1980 Misc. (36) pending in the Court of the Distt. Judge, Udaipur (Rajasthan) to the Court of Subordinate Judge, Eluru (Andhra Pradesh) to be tried a\ongwith 0 P. No. 72 ot i 979 pending in that court.

G. S. Rama Rao for the Petitioner.

B. D. Sharma for the Respondent.

The following Judgments were delivered :

TULZAPURKAR, J. On September 26, 1979, the petitioner (wife) filed a suit in Jonna pauperis seeking maintenance from the respondent (her husband) in the Court of Subordinate Judge, Eluru (Andhra Pradesh) being 0. P. No. 72 of 1979.

On the receipt of the notice of the suit, the respondent filed a divorce suit (Petition Case No. 28 of l 980) against the wife under s. 13 of the Hindu Marriage Act, 1955 in the Court of the District Judge, Udaipur (Rajasthan).

By the instant transfer petition filed under s. 25 C.P.C.

A 1908 the wife is seeking to get the husband's suit transferred to Eluru. On merits we are satisfied that it is expedient for the ends of justice to transfer the husband's suit to the District Court at Eluru (A.P.) where both the proceedings could be tried together and for that purpose the wife is agreeable to have her maintenance suit transferred to the District High Court at Eluru (A.P.) B

However, counsel for the respondent (husband) has raised before us a preliminary objection that s. 25 of the C.P.C. under which the transfer petition has been made is not applicable to proceedings under the Hindu Marriage Act, 1955 and as such this Court has no power to transfer the husband's suit from Udaipur District Court to the District Court at Eluru. He urged that s. 25 of C.P.C. gets excluded by reason of the provisions of s. 21 and 21A of the Hindu Marriage Act 1955. According to him s. 25 C.P.C. deals with the substantive law and not procedural law and since s. 21 of the Hindu Marriage Act makes applicable to all the proceedings under the Act only such provisions of C.P.C. as relate to the regulation of proceedings i.e. such provisions which deal with procedural matters only, s. 25 C.P.C. is not applicable.

He also urged that s. 21 A (3) of the Hindu Marriage Act also makes the above position clear beyond doubt by specifically excluding ss. 24 and 25 C.P.C. from being applied to the proceedfogs under the Hindu Marriage Act.

A large number of authorities were referred to by counsel to substantiate his contention and general principles but in particular one decision of the Nagpur Bench of the Bombay High Court in the case of Priyavari Mehta v. Priyanath Mehta(1) was pressed into service as having a direct bearing on the point.

In our view, on proper construction of the relevant provisions it is not possible to uphold the preliminary objection. In the first place it is difficult to accept the contention that the substantive provision contained in s. 25 C.P.C. is excluded by reason of s. 21 of the Hindu Marriage Act, 1955. Section 21 of the Hindu Marriage Act merely provides : "Subject to other provisions contained in this Act and to such rules as the High Court may make in that behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908". In terms s. 21 doe& not make any distinction between procedural and substantive pro. visions of C.P.C. and all that it provides is that the Code as far as may be shall apply to all proceedings under the Act and the phraSI!:

(il A.I.R. 19'3Q Boru. 337.

... '

. G. AIJAYALAKSHMI v. G. RAMACHA]'jDRA (Tulzapurkar J.) 227

"as far as may be" means and is intended to exclude only such provisions of the Code as are or may be inconsistent with any of the provisions of the Act. It is impossible to say that such provisions of the Code as partake of the character of substantive law are excluded by implication as no such implication can be read into s. 21 and a particular provision of the Code irrespective of whether it is procedural or substantive will not apply only if it is inconsistent with any provision of the Act.

For instance, it is difficult to countenance the suggestion that the doctrine of res judicata contained in s. 11 of the Code which partakes of the character of substantive law is not applicable to proceedings under the Act. Resjudicata, after all, is a branch or specie of the Rule of Estoppel called Estoppel by Record and though Estoppel is often described as a rule of evidence, the whole concept is more correctly viewed as a substantive rule of law (See : Canada and Dominion Sugar Co. Ltd. v. Canadian National (West Indies) Steamships Ltd.(1)

So far ass. 2!A of the Hindu Marriage Act Is concerned the marginal note of that section itself makes it clear that it deals with power to transfer petitions and direct their joint or consolidated trial "in certain cases" and is not exhaustive.

Further sub-s. (3) of s. 21A on which strong reliance was placed runs thus:

"21A (3). In a case where clause (b) of sub-section (2) applies, the Court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908) to transfer any suit for proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as if it had been empowered so to do under the said Code."

This provision in terms deals with the power of the Government or the Court on whom powers of transfer have been conferred by the C.P.C. as it then stood, that is to say, .olds. 24 and 25 of C.P.C.

It does not deal with the present s. 25 C.P.C. which has been substituted by an amendment which has come into force with effect from February 1, 1977 (s. 11 of the Amending Act 104 of 1976). By the amendment very wide and plenary power has been conferred on this Court for the first time to transfer any suit, appeal or other proceedings from one High Court to another High• Court or from one Civil

(I) (1947] A.C. 46, P.C., at p. 56.

Court in one State to another Civil Court in any other State throughout the country. Conferal of such wide and plenary power on this Court could not have been in the contemplation of Parliament at the time of enactment of s. 21 A of the Hindu Marriage Act, 1955.

It is, therefore, difficult to accept the contention that s, 21A of Hindu Marriage Act excludes the power of transfer conferred upon this Court by the present s. 25 of C.P.C. in relation to proceedings under that Act.

Coming to the decision rendered by the Nagpur Bench of the Bombay High Court in Priyavari Mehta's case (supra) it needs to be pointed out that the aforesaid aspects of s. 21 A of the Hindu Marriage Act and the presents. 25 of the C.P.C. were not considered by the Nagpur Bench at all. Moreover, the Nagpur Bench, following the decision of the Punjab and HaryanaJiigh Court in Smt. Rc, ma Kanta v. Asl10k Kumar(1) has also taken the view that s. 21A of the Hindu Marriage Act permits transfer and consolidation of only two types of petition under the Act, namely, cross petitions filed by the two spouses against each other under s. I 0 or s. 13 of the Act and that consolidation or joint hearing of other types of petitions is excluded by necessary intendment. The Bench has observed

"The effect of s. 21A, therefore, in my op11110n, is that joint or consolidated hearing or trials of petitions other than those mentioned in that section not being permissible, the powers under s. 23 to 25 of the Code cannot be exercised for transfer of petitions for a consolidated hearing of the petitions no! contemplated by that section."

Such a view, in our opinion, is not correct.

As stated earlier, in the matter of transfer of petitions for a consolidated hearing thereof s. 21 A cannot be regarded as exhaustive for the marginal note clearly suggests that the section deals with power to transfer petitions and direct their joint and consolidated trial "in certain cases." Moreover, it will invariably be expedient to have a joint or con-

G_J solidated hearing or trial by one and the same Court of a husband's petition for restitution of conjugal rights on ground that the wife has withdrawn from his society without reasonable excuse under s. 9 of the Act and the wife's petition for judicial separation against her husband on grom1'tl of cruelty under s. I 0 of the Act in H order to avoid onflicting decisions being rendered by two different

(1) AIR 1977 Punj. & Har. 373.

G. VIJAYALAKSHMI v. G. RAMACHANDRA (A.N. Sen, J.) 229

Courts. In such a situation resort will have to be had to the powers

 A under ss. 23 to 25 of the Civil Procedure Code for directing transfer of the petitions for a consolidated hearing.

Reading s. 21A in the manner done by the Nagpur Bench which leads to anamolous results has to be avoided.

In this view of the matter, the preliminary objection is over- B ruled. Divorce case No. 28 of 1980 pending in the District Court Udaipur (Rajasthan) is transfered to the District Court Eluru (A.P.),

to which Court the wife's petition for maintenance shall also stand transferred. No order as to costs.

AMRENDRA NATH SEN, J.

I agree with the order proposed by my learned brother. I, however, propose to make certain observations with regard to the preliminary objection raised as to the jurisdiction of this Court to entertain this application.

The preliminary objection raised is that the jurisdiction and power conferred on this Court under S. 25 of the Code of Civil Procedure are excluded by the provisions contained in S. 21 and S. 21 A of the Hindu Marriage Act; and as S. 25 of the Civil Procedure Code is .not attracted, this Court does not have jurisdiction to entertain this application for transfer.

S. 25 of the Code of Civil Procedure reads as fQllOWS :-

"(I) On the application of a party, and after notice to the parties, and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.

(2) Every application under this section shall be mad~ by a

motion which shall be supported by an affidavit.

(3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in the order of transfer, either re-try it or proceed from the stage at which it was transferred to it.

(4) In dismissing any application under this section, thr.i Supreme Court may, if it is of opinion that the application H was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has oppo1ed th!l

SUPREME COURTS REPORTS

( 1981 J S.C.R. 3

application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case.

(5) The law applicable to any suit, appeal or other proceeding ""'f' transferred under the section shall be the law which the court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding."

It may be noticed that the present section 25 was substituted for the former section 25 by the Code of Civil Procedure (Amendment) Act,

1976. In this connection it may be relevant to set out S. 25 of the Code of Civil Procedure, as it stood before its amendment by the substitution of the present section.

The earlier section 25 was in the following terms :-

"(I) Where any part to a suit, appeal or other proceeding pending in a High Court presided over by a single Judge objects to its being heard by him and the Judge is satisfied that there are reasonable grounds for the objection, he shall make a report to the State Government, which may, by notification in the "Official Gazette, transfer such suit, appeal or proceeding in any other High Court :

Provided that no suit, appeal or proceeding shall be transferred to a High Court without the consent of the State Government of the State that High Court has its principal seat.

(2) The law applicable to any suit, appeal or proceeding so transferred shall be the law which the Court in which the suit, appeal or proceeding was originally instituted ought to have applied to such case."

A plain reading of S. 25 of the Code clearly indicates that very wide jurisdiction and powers have been conferred on this Court to transfer any suit, appeal or any other proceeding from a High Court or other Civil Court in any State to a High Court or other Civil Court in any other State for the ends of justice. I shall now set out the relevant provisions of the Hindu Marriage Act.

S. 21 of the Hindu Marriage Act is in the following terms :-

"Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all

G. VIJAYALAKSHMI v. G. RAMACHANDRA (A.N. Sen, J.) 231

proceedings under this Act shall be regulated, as far as may be A by the Code of Civil Procedure, 1908."

Section 21A which was introduced in the Act by the Amending Act, (68 of 1976) provided as follows

"(1) where-

(a) a petition under this Act has been presented to a district court having jurisdiction by a party to a marriage praying for a decree for judicial separation under s. 10 or for a decree of divorce under section 13, and

(b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under section 10 or for a decree of divorce under section 13 on any ground, whether in the same district court or in a different district court, in the same State or in a different State;

the petition shall be dealt with as specified in sub-section (2)

(2) in a case where sub-section (I) applies;

(a) if the petitions are presented to the same district E court, both the petitions shall be tried and heard together by that Court :

(b) if the petitions are presented to differeut district courts, the petition presented later shall be transferred to the district court in which the; earlier petition was presented and both the petitions shall be heard and disposed of together by the district court in which the earlier petition was presented.

(3) In a case where clause (b) of sub-section (2) applies, the G court or the Government as the case may .be, competent under the Code of Civil Procedure, 1908 to transfer any suit or proceeding from the district court in which the later petition has been presented to the district court in which the earlier petition is pending, shall exercise its H powers to transfer such later petition as if it._had been empowered so to do under te said Code."

The learned counsel for the respondent argues that in view of the provisions contained in S. 21, only the provisions contained in the Code of Civil Procedure relating to procedure which will regulate the proceedings instituted under the Hindu Marriage Act, 1955 ill apply; and as S. 25 of the Code of Civil Procedure does not appertaill to the domain of procedure and confers substantive right, the said section is not applicable and cannot be attracted. It is argued that this position is further made clear by the provisions contained in S. 2IA.

In my opinion, this argument of the learned counsel for the respondent husband is without any substance. I have earlier set out section 25 of the Code of Civil Procedure and I have pointed out that an analysis of the section makes it abundantly clear that for the ends of justice, wide power and jurisdiction have been conferred on this Court in the matter of transfer of any suit, appeal or proceeding from any High Court or other Civil Court in one State to a High Court or other Civil Court in any other State. A suit or a proceeding for divorce under the Hindu Marriage Act in a Civil Court is necessarily a suit or proceeding and must on a plain reading of S. 25(1) of the Code of Civil Procedure be held to come under S. 25(1) of the Code, as the said section speaks of any suit, appeal or other proceeding. This Court must necessarily enjoy the power and jurisdiction under the said provisions of transferring such a suit or proceeding for the ends of justice, unless the power and jurisdiction of this Court are specifically taken away by any statute. If the jurisdiction clearly conferred on any Court has to be ousted, the exclusion of such jurisdiction must be made in clear and unequivocal terms. S. 21 of the Hindu Marriage Act does not deal with the question of jurisdiction of any Court. As no procedure with regard to the proceedings under the Hindu Marriage Act has been laid down in the said Act, S. 21 of the Act only provides that 'all proceedings under this Act shall be regulated as far as may be by the Code of Civil Procedure.' S. 21 of the Hindu Marriage Act cannot be construed to exclude the jurisdiction conferred on this Court under S. 25 of the Code of Civil Procedure. It does not become necessary in the instant case to decide whether the provision in relation to jurisdiction of this Court contained in S. 25 of the

Code of Civil Procedure is one of substantive law or it belongs to the domain of Procedure.

Even if I accept the argument of the learned counsel for the respondent that S. 25 does not form any . part of the procedural law and is a part of the substantive law, I am of the opinion that jurisdiction conferred on this Court by S. ZS of.

G. VIJA YALAKSHMI V. G. RAMACHANDRA (A.N. Serl, J.) 233

the Code of Civil Procedure, is not in any way, affected by S. 21 of of the Hindu Marriage Act which, as I have already noted, only . provides that 'all proceedings under the Hindu Marriage Act shall be regulated as far as may be by the Code of Civil Procedure, 1908.'

S. 21 A of the Hindu Marriage Act, in my opinion, has indeed

no bearing on the question of jurisdiction conferred on this Court B , under S. 25 of the Code of Civil Procedure.

S. 21A of the Hindu Marriage Act makes provisions for transfer of petitions specified in the said section and for hearing and disposal of such petitions together by the District Court in which the earlier petition has been presented.

Such power bas been conferred on the Court or tbe Government.

S. 21 A has no application to the case of transfer of any suit or proceeding from one State to another.

As I have earlier noted, very wide power and jurisdiction have been conferred on this Court in the interest of justice for transferring any appeal, suit or proceeding from one State to another under S. 25 of the Code of Civil Procedure. In the instant case, tbe petitioner bas applied for transfer of the suit pending in the District at Udaipur in tbe State of Rajastban to the appropriate Court at Eluru in the State of Andhra Pradesh. I am, therefore, of the opinion that this Court enjoys the power and jurisdiction to entertain this application under S. 25 of the Code of Civil Procedure and S. 21 and S. 21 A of the

Hindu Marriage Act do not, in any way, exclude, affect or curtail the power conferred on this Court under S. 25 of the Code of Civil E Procedure. I may incidentally add that the present section 25 in , the Code of Civil Procedure came into force after S. 21 and 21A have been incorporated in the Hindu Marriage Act, 1955.

V.D.K.

Preliminary objection rejected.

GUDA VIJAYALAKSHMI

GUDA RAMCHANDRA SEKHARA SASTRY

March 13, 1981

V.D. TULZAPURKAR

AMRENDRA NATH SEN, JJ.

section 25

section 25

C.P.C

sections 21 and 21A

Hindu Marriage Act, 1955

section 13

Hindu Marriage Act, 1955

District Judge, Udaipur (Rajasthan

section 25

C.P.C

Udaipur

Eluru

section 25

sections 20 and 21

Hindu Marriage Act, 1955

Supreme Court

District Court Udaipur (Rajasthan)

District Court at Eluru

Tulzapurkar

section 9

Hindu Marriage Act

section 10

sections 23 to 25

section 25

Civil Procedure Code

section 21

Hindu Marriage Act

section 21

C.P.C

C.P.C

section 21

Section 21A

Hindu Marriage Act, 1955

section 25

C.P.C

section 21

Section 21A

section 25

C.P.C

February 1, 1977

section 11

Parliament

section 21

Hindu Marriage Act, 1955

Amre11dra Nath Sen

section 25

C.P.C

section 25

the Code of Civil Procedure

Sections 21 and 21A

Hindu Marriage Act

section 25

the Code of Civil Procedure

Section 21

Hindu Marriage Act

Hindu Marriage Act

Section 21

Hindu Marriage Act

section 25

C.P.C

Section 21A

Hindu Marriage Act

section 25

C.P.C

Section 21

section 25

C.P.C

Section 25

the Code of Civil Procedure

section 21 and 21A

Hindu Marriage Act

Hindu Marriage Act, 1955

section 25

sections 21 and 21

Hindu Marriage Act

section 25

the Code of Civil Procedure

G. S. Rama Rao

B. D. Sharma

TULZAPURKAR

s. 13

Hindu Marriage Act, 1955

s. 25

C.P.C

District Court at Eluru (A.P.)

District High Court at Eluru

s. 25

C.P.C

Hindu Marriage Act, 1955

Udaipur District Court

s. 25

C.P.C

s. 21 and 21A

Hindu Marriage Act 1955

s. 25

C.P.C

s. 21

Hindu Marriage Act

C.P.C

s. 25

C.P.C

s. 21

Hindu Marriage Act

ss. 24 and 25

C.P.C

Hindu Marriage Act

Nagpur

Bombay High Court

s. 25

C.P.C

s. 21

Hindu Marriage Act, 1955

Section 21

Hindu Marriage Act

Code of Civil Procedure, 1908

s. 21

C.P.C

s. 21

s. 11

Hindu Marriage Act

s. 21A

Code of Civil Procedure, 1908

C.P.C

C.P.C

s. 25

C.P.C

s. 11

s. 21

Hindu Marriage Act, 1955

Hindu Marriage Act

s. 25

C.P.C

Priyavari Mehta

s. 21

Hindu Marriage Act

C.P.C

Punjab and HaryanaJiigh Court

s. 21A

Hindu Marriage Act

s. 13

s. 21A

s. 23 to 25

s. 21

s. 9

ss. 23 to 25

s. 21A

District Court Udaipur (Rajasthan

District Court Eluru

S. 25

the Code of Civil Procedure

S. 21

S. 21

Hindu Marriage Act

S. 25

S. 25

the Code of Civil Procedure

section 25

section 25

the Code of Civil Procedure

S. 25

the Code of Civil Procedure

section 25

S. 25

Hindu Marriage Act

S. 21

Hindu Marriage Act

Code of Civil Procedure, 1908

Section 21A

s. 10

section 13

section 10

section 13

Code of Civil Procedure, 1908

S. 21

the Code of Civil Procedure

Hindu Marriage Act, 1955

S. 25

the Code of Civil Procedure

S. 2I

section 25

the Code of Civil Procedure

Hindu Marriage Act

S. 25(1)

the Code of Civil Procedure

S. 25(1)

S. 21

Hindu Marriage Act

Hindu Marriage Act

S. 21

the Code of Civil Procedure

S. 21

Hindu Marriage Act

S. 25

the Code of Civil Procedure

S. 25

Code of Civil Procedure

S. 25

G. VIJA YALAKSHMI V. G. RAMACHANDRA

A.N. Serl

the Code of Civil Procedure

S. 21

Hindu Marriage Act

Hindu Marriage Act

Code of Civil Procedure, 1908

S. 21

Hindu Marriage Act

S. 25

the Code of Civil Procedure

S. 21A

Hindu Marriage Act

S. 21

S. 25

the Code of Civil Procedure

Andhra Pradesh

S. 25

the Code of Civil Procedure

S. 21

S. 21

Hindu Marriage Act

S. 25

section 25

the Code of Civil Procedure

S. 21 and 21A

Hindu Marriage Act, 1955

V.D.K.