. .

216 •

JAGDISH PRASAD

SMT. ANGOORI DEVI

• March 15, 1984

[D.A. DESAI AND RANGANATH MISRA, JJ.]

Cons1itution of lndia-l{rts. 226 & 227-Wrlt of certiorari-Scope a/- Whether High Court can correct an error oi faCt.

U.P; Act No.13of1972-s.12(J)(b) and 12(2) read withs. 25-1nterpretation of-Allegation of sub-tenancy-How and by whofn shoUJd be pYored.

Pf0vincia.' Small Gause Courts Act, 1887_:_._s~ 25-Revisional furisdiction-

D Scope of

The respondent-landlord filed a suit for ev1ctlon of the appel!ant-:-tenant in a town in U.P. ob theground that the tenant had created a sub-tenancy of the . premises in favour _oT a trading company. The landlord filed a photo- . graph Showing tbe so'n of the proprietor of the trading company standing in the shop. Adopting the appro8.ch that if any person othef than a tenant was found sitting iri the shop, the tenant hd. to. lead evidence to Show that a 'sitting person was not a sub-tenant, the small cause court Judge assun1ed that there was a sub-tenancy; held against the tenant and ordered his eviction.. Allowing the revision petition filed by the tenant the Additiona 1 :District Judge held .that it was for the landlord to lead good and positive evidence to prove that the business in fact at the shop was being carried by the trading company and .not by the tenant himself.

The Additional District JiJdge looked into the evidence and held against the °landlord. In an application under Art. 227 the High Court held that under s. 25 of the U.P. Act No. 13 of 1972 read with sec. J2(l)(b) and s. 12(2) of the aforesaid Act a tenant would be deemed to hav~ sublet the

accommodation if he had allowed. it to be occupied by any person wbo was not a member of his family. The High c:Ourt further held ttlat the Additional District .Judge exceeded his juridiction under s. 25 of the Provincial Small

Cause Courts Act, 1887 in setting aside the findings of the trial court on a mere

reap:t)raisal of the evidence on record. Hence this appeal. .

. Allowing the appeal, •

HELD : As long as C}>ntrol OVet the premises is kept ; by the tenant and

. the business run in the premises is of the tenant, subletting flowing fromthe

---"I. ."'" presenco of .a person othcf than the tenant in the shop cannot be as'3umed. The -· i.

HJJ!i!i Ii U.P. Act No. 13of1972 does not require the Court to assume a sub-tenancy merely from the fact of presence of an outsider. [2200]

In th~ instant case the. allegation that th~ premises ha-j been sub-let to a trading company had tO be proved-as a fact by the landford and mei."ely on the basis of the phcltograph showing the presence of the son of the proprietor of the trading copany withinthe room, sub-letting could Opt be ptesume; d. The approach of the trial Judge was totally vitiated. [120 D-E]

The revisional juriSdiction under s. 25 of. th~ Provincial Small Cause Courts B Act is not as wide as the appe1late jurisdiction under s. 96 of the Code of Civil Procedure; yet in a case of this type this Court does not think fault could he .

found with the revisional court for. pointing out the legal error committed by the • trial court in its approach to -this material aspect. The legal p<Jsition having been totally misconceived by the trial court and there being an assumption of the position which the landlord was required to prove by evidence, the revisional authority was entitled to point out the legal error and rectify the defect.

[221B-D]

The jurisdiction to.issue a writ o~ certiorari is a supervisory one and in exercising it, the court is not entitled to act as a court of appea]. That necessarily means that the findings Of fact arrived at by the inferior court or tribunal are binding. -An error of law apparent on the face of the record could b.e'corrected

b)1" a writ of certiorari~ but not an error of fact, however, grave it may appear to be. [22lF-G]

Syed Yakaab v. K.S: Radhakrishnan & Ors., [l964] 5 S.C.R. 64, referred to.

In the in.Stant cas~ the High Court exceeded its jurisdiction in interfering"' with the order of the Additional District Judge. [22lG]

• C1VIL -APPELLATB JURISbICTION : Civil Appeal No. 2147 of 1980.

Appeal by Special leave from the Judgment and Order dated

' the 19th August, 1980, of the Allahabad High Court in C.M.W.P.

No. 7578 of 1979 . . ' .

Pramod Swarup for the Appellant.

M.K. Garg a.nd V.K. !ai11 for the Respondent.

The Judgment of the Conrt was delivered by

RMNGA.NATH MisRA, J. Ihe tenant of one room which. is a part of a premises located within the township of i\, ligrah in the State of Uttar Pradesh is in appeal before this Court after obtaining special leave under Article .136 of the Constitution. The respondent

. o

landlord asked for his e\>iction on the gronnd of' the tenant having created a sub-tenancy. of theprmis'es sometime in Octbber, 1976, in favour of M/s. Pavan Trading Company, a soap manufacturing concern. The tenant denied the allegation of sub-letting. The main issue raised in the proceeding was whether the tenant had sub-lef the accommodation as alleged by the landlord. The SCC Judge started dealing with this issue by saying : ' "Under Sectfons 12, 15 and 20 of the Act ir-tenant has i allowed a non-family member to occupy the accommodation, he should be deemed to have sub-let the.accommodation. If it is found that Pavan Tratling Co. or if any of his prtner is carrying on business in the accommodation, the tenant in fact shall

be d.eemed to have sublet the accommodation. In Deihl Rent Control Journal 1971 page 492 (Abdul Aziz :v. Yaqub Khan) it was held by the Court that if ahy person other than a tenant . is found sitting in the shop, the tenant has' to lead evidence to Show that a sitting pei;:; on is not the sub-tenant. Thus the burden is on the defendant to explain the circumstances. nnder which partner of the Pavan Trading Co. is sitting in the accommodation. 21/C-1 a photograph bas been proved.

Even .the defendant has admitted this photograph during his cross-examination: the person standing in. the shop has been identified by the parties to be the son of the proprietor of

Pavan Trading Co ...... ," ·

• •

' He looked for evidence from the tenant against sob-letting by assuming from the presence of the son offae proprietor of Pavan Trading !=ompany that there was a sub-tenancy; held against the

teant and directed his evictfon from the "premises. The Additional District Judge before whom th~ tenant's revision petition came for' disposal took note of the erroneous approach of the trial court and came to hold : •

• "In the present case, it has not at all. been admitted by the defendant-that Pavan Trading Company or any member of the said company has been carrying on business in the shop alongwfth him or by himself. The mere presence of a: member of Pavan Trading Company in the shop at a certain time will . not be suffici.ent to say all that the business is being carried. on by Pavan Trading Company in the shop. In these circumstances, it waSfor the plaintiff.to lead good and positive evidence to prove that the business in fact at tat $hop

.lo

• 4 .iAGDIS!lPRASAD v. ANGQORI DEVI (Ranganath Misra, i.) 2l9 ..

was being carried on by the Pavan Trading Company and not by the defendant himself."

He looked into the evidence and came to hold :

"The evidence of the plaintiff was not at all sufficient to shift the burden of proof to the defendent and on cbnsideration of the evidence of the p)aintiff it is not at all possi.ble to say that the plaintiff has been able to prove the fact of

Pavan Trading Company carrying on the business at the shop which may amount to sub-letting of the shop by the .defendant."

_The appellaie authority, therefore,· allowed the revision and reversed th~ order of eviction and directed dismissal of the petition of the landlord. The landlord filed an application under Article 227 of ihe Constitution. Referring to the .contention of the landlord, the High Court observed.:

"Learned counsel for the petitioner subm, itted that the learned Ad_ditional District Judge clearly misconceived his jurisqiction under Section 25 of the Provincial Small Cause Court Act. It. is urged that it was not permissible for the learned Judge to re-appraise the evidence on record on the. issue purely on fact.

The learned counsel contended that whether. it was defendant who was dojng businsss in the shop in dispute of M/s. Pavan Trading Company is undoubtedly a pure issue of fact, the findings on wHich could not be disturbed in revision under Section 25 of the Provincial Small Cause Court Act", and held :

"The Simple question for determination before both the courts below was whether defendant had sub-let the shop in dispute to M/s. Pavan Trading Company. This question depended on the facts of the present case .wholly on the answer to the. question whether it was the defendant or the proprietor of the said company who was doing business in the disputed shop. This . question was deterri:liued by the trial. court on the b_asis !Jf direct oral and documen'taty evidence adduced by the plaintiff to the effect that in point of fact it was the proprietor of M/s. Pavan Trading company who was doing business in the shop in question instead of the defen-

'. ' Tl

- E

SUPREME COURT REPORTS [19.84J3 s.c.ti.. ·

dant. This finding is not based on any notion of brden of proof. .It was a pure and simple finding arrjved at on the analysis of the c\lience on. record without reference to th~ question of burden of proof.

On the answer to this question depends entirely the fate of the case in as much as under Section 25 of the U.P. Act No. XIII bf 1972 read with

Sction 12(\)(b) and Section 12(2} of the aforesaid Act, a tell3nt would be deemed to have sub-let the accommodation; if he.has allowed it to be occupied by any persan who is not' a member of his family.

Whethe'r the tenant has allowed the shop to be occupiedby someone not a member of his family' -is indisputably a pure question of fact.

. That being so, th.e learned District Judge exceeded his jurisdiction under Section 25 of the Provincial Small Cause Court Act ih setting !lside the finding of the trial court on a mere re-appraisal of the evidence on record. The finding of the trial court was not vitiated by any .error of law. The impugned order .is tlius ex-facic illegal."

Having' heard counsel for, the parties we are of the view t)lat the lligh Court was clearly wrong in reversing the decision of the AdditionaJ .District Judge. The application for eviction was based cin the allegation of sub-tenancy. The allegation that the premisses had been sub-Jet to Pavan Trading Co'mpany had to be proved as a fact by the landlord and merely on the basis of photograph showing the pr; sence of the son of the proprietor of Pavan Trading Company within.the room, snb-letting could nofbe presum- ed. We must indicate that the approach of the trial Judge was totally vitiated .. Merely from the presence 0f a person other than the tenant in the shop sub-letting cannot be presumed. There may be several situations in which a person other than the tenant may be found sitting in the shop ; for instance, he may be a customer waiting to be attendant; a distributer who may have come to deliver his goods at the.shop forsale; a creditor coming for collection of the dues ; a friend visiting for some social purpose or the like. As long as control over the premises is kept by the tenant and the business run in the premises is of the tenant, sub-letting flowing from the presence of a person other than the t<; nant in the shop cannot be ' assumed.· The Act .does not require ihe Court to assume a sub- H teancy merely from the fact of presence of an. outsider. Obviously the law has intended and we must assume that the rule in the 4bdul.

) ,

Aziz's case (referred to by the trial court) proceed on.the footing that the person was sitting in the shop in exercise of his own right and not in a situation as indicated by us. The trial court unwarrantedly drew the presumption and looked at the evidence of the tenant to find out whether th.e vcsumpti•.m had been rebutted.

There is no warrant in law for such a situation. The Additional District Judg~ rightly took exception to this approach to the matter by the trial court and since the evidence of the pllntiff had not been scrutinised under th~ errcineol:s impression of the legal position, the same was looked into to find out. whether the claim f the subtenancy had been established. This was not an attempr to re-assess evidence but to take into consideration the evidence which had not been looked into by the tril court. The revisional jurisdiction under Section 25 of the Provincial Small Cause Court Act is not as wide as the appellate jurisdiction under Section 96 of the Code of Civil Procedure ; yet in a ase of this type we do not think fault couldbe found with the revisional court for poirttin$ out fhe legal error committed by the trial court in its approach to this material aspect. The legel position having been tota\ly'misconceived by the trial court and there being an assumption of the position which the landlord was required to prove by evidecc, the r'evisional authority was entitled to point out the legal error and)ectify the defect. This ·

is all that had been done by the Additional District Judge.

In the case of Syed Yakoo!J v. K.S. Radliakrishna & Ors'., a Constitution Bench of this Court indicated the scope of. interference in a certiorari proceeding by saying. that a writ of certiorari is issued for correcting the errors of jurisdiction committed by the courts or tribunals in cases where they exceed their jurisdiction or fail to • exercise it or exercise i't. illegally ot improperly. i.e. wliere an order is passed without hearing the party sought to be affected by it. or . , where the procedure adopted is opposed to . p:inciples of natural justice. •A caution was indicated by saying that the-jurisdiction to

isse a writ o.f certiorari is a supervisory one and in exercising it, the court is not entitled. to act as a court of appeal. .1'hat necessarily means that the .findings of fact arrived at by the inferior court or' tribunal are binding. An erro; of law apparent .on the face of the record could be corrected by a 'writ of certiorari, bu! not an error of fact, however, grave it may appear to be.

The rule in Yakoob's case when applied to the pre.sent facts would lead to the conclusion

(I) [1964] 5 S.C.R. 64.

• D

that the High G:>urt exceeded its jurisdictioµ in interfering with the order of the Additit>nal District Judge.

We are, therefore, inclined to agree with the appellant's contention that the. High Court wrongly interfered with the decision of t]le Additional District Judge that the landlord failed to establish sub-tenancy. The circum stances in which the son of the pr9prietor of Pavan Trading Company was in the shop hav~ bee~ clearly explained and we are inclin'ed to agree that there is no tnaterial on the record to doubt the explanation plactd by way of evidence in the proceeding.

The apJ"al is accordingly , allowed and t!1e order of the High Court is vacated and that of the Additional District Jildge is restor ed. The net effect is. the application for eviction of the appellant. tenant is dismissed with costs throughout. Hearing fee in this Court is assessed at Rs. l, OOQ .

H.S.K. ..

Appeal allowed .

.1.

r ' ·•

JAGDISH PRASAD

ANGOORI DEVI

D.A. DESAI

RANGANATH MISRA, JJ.

s.12(J)(b) and 12(2)

Small Gause Courts Act, 1887

Art. 227

s. 25

s. 12(2)

s. 25

Cause Courts Act, 1887

s. 25

Provincial Small Cause Courts B Act

s. 96

the Code of Civil Procedure

Pramod Swarup

M.K. Garg

RMNGA.NATH MisRA

Pavan Trading Company

SCC

Pavan Tratling Co.

Pavan Trading Co.

Article 227

Section 25

Section 25

Pavan Trading company

Section 25

Pavan Trading Co'mpany

Aziz

Section 25

Section 96

the Code of Civil Procedure

Yakoob

[1964] 5 S.C.R. 64


JITENDRA SINGH RATHOR

SHRI BAIDY ANA TH A YURVED BHAWAN LTD. & ANR.

March 15, 1984

(D.A. DESAI AND RANGANATH MISRA, JJ.]

labour law Service~ of Employee-Termination on charge -of misconduct- Industrial Tribunal finding charge of misconduct proved-Reinstatement with half of back wages ordered-Employer apprOaching High Court-High Court vacating order of .reinstatement and qualltifying compensation at RS. • 15000-.Interference by High Court whether valid aud legal. •

Constitution of India 1950, Art 227

Juri., diction of High Coul't to interfere with the award of an Inddstrial TrilYunal D -When arises. •

Industrial Disputes Act 1947, Section I IA.

Employee's" services terminated on account of misconduct-Jurisdiction of IndUst; ial Tribunal to grant relief-Explained.

The appellant was employed as a Librarian under the 1st respondent. His services were terminated for misconduct. He laid a Complaint before the Indus trial -Tribunal under section 33A of the Industrial.Dispures Act, 19.47. The Tribunal came to the conclusion that though the charge ot misconducteagainst the appellant was establishCd, the punishment of termination of service was not warranted, ordered reihstatement with half of his back wages and other benefits from the date of termination .

.,4 The respond<nt-employer applied to the High Court under Article 227 to i quash the direction of reinstatemellt contending that as the Tribunal had found misconduct on the part of the Workman, it was obligatory for the Tribunal to

impose some punishment which it had failed to do. It was fQrther contended

. G that as there was las), of confidence, reinstatement was not appropriate. The High Court held that with-holding of.50 per cent of the back wages was a condition ofteinstatement and wa~. not by way of pµnishment, held that reinstatement was no_t called for, vac.ated-the Oroe~ of reinstatement, direCted payment of compensation to the respondent workman in lieu of reinstatement and quanti- /!\ . fied the compensation at Rs. 15,000.

Allowing.th• appeal.

. HELD :. I. The order of the High Court is set aside and.the award of the Industrial Tribunal is restored. The High Court had no justification to interfere with lhe direction regarding reinsiaten1eut to S'tvk:~ and in pr0cceding tosubsti~ • .. • tute the directiqn by quantifying conipensation at Rs. 15000 it acted without any legitimate basis. [228D, 22711, 228A]

2. Section llA of the InduStrial Disputes-Act, 1947 vests wide discretion in the Tribunal, and in a given case oµ. the facts established 'th~ Tribunal cari Vacate -the order of dislnissal or .discharge and . give suitable directiOns.

It is a well-settled principle of law --that when an order of tetmination of service is found to be bad and reinstatement is directed, the wronged workman is ordin'arily entitled to full back wages Unless for any particular reason the whole or a part.of it is asked to be withheld .. The Tribunal while directing reinstatement and keeping the delinquency in view could withhold payment of a part or the whole of the back wages.· [226G, 227AJ ' . '

3. The High Court under Article 227 of the Constitution does not enjoy the wide discretion vested in the Tribuna1 under-, section llA, though as a superior court, it' is vested With the right Of superintendence. The High Court ~Sin disputably entitled to scru!inize the orders of the subordinate tribunals within the well itcepted limitations and it could in an approprial.e c_ase quash the award of the Tribunal and thereupon remit the matter tQ it for' fresh dispOsal in accordance with law and directions, if ahy. The High Court is not_ entitled to exercise the powers of the Tribunal clod substitute an award in.p}ace of the one made by the Tribunal as in the case of an appeal where it lies to it. [227D] ·

E • CtVIL APPELLATE JURISDICTION ... Civil. Appeal No. 108

of 1984.

From the Judgment and Order dated 4.3.83 of the Patna High Court in C.W.J.C. No. 3490 of 1979.

M.K. Ramamurthi and A.S/iaran for the Appellant.

S. N. Singh for the Respondents.

The Judgment of the Court was delivered by ) '°' -RANGANATll MISRA, J. The workman is .in ppeal after obtaining leave uuder Article 136 of the Constitution from this Court. The appellant was working as librarian under the respondent employer.. His services were terminate!\ on May 24, 1977, on pay_. 'ment of a month's 'salary. The appellant laid a complaint before

the Industrial Tribunal under section 33A of the Industrial Disputes Act,. 1947 (hereinafter referred to as 'the Act') and. the Tribunal yall\e to find on hearing parties that though the charge of misconduc

.. ) .

0, I

1. s. RATHOR v. BAiDYANATH AYURVED (Ranganath Misra, J.) 225

within the meaning of clause 16(iii) (a) of the Standing Orders had been established, punishment of termination of service was not

warranted. Accordingly, reinstatement was ordered.· The direction of the Tribunal ran thus:

; "Considering the facts and circumstances of the case and evidence on record I direct the opposite party (employer) to reinstate the.complainant (appellant) with half of his back wages and other benefits from the date of termination of his service (24.5.1977) within one [month from the date of pronouncement of this award." •

The employer applied to the High Court under Article 227 of the Constitution to quash the direction of reinstatement and in support of the stand it was contended that as the Tribunal had found misconduct on the part of.the workman, it was obligatory for the Tribunal to impose some punishment which it had failed to do. The employer also took the position that there was loss of confidence and reinstatement was not appropriate. Th.e appellant maintained that though under the law he was entitled to full Back wa11es upon reinstatement, the Tribunal had directed witpholding a moiety of it in view of its finding that misconduct had been established. •The High Court came to hold that withholding of 50 per cent of the back. wages was a condition of reinstatement and was not by way of punishment. The High Court observed:

"The two poyiers under section I IA ate alternative; the first is to direct reinstateme11t of the workman on such terms and conditions as it thinks fit and the second is to give 'some other relief to the worklllan in eluding the award of any lesser punishment in lieu of reinstatement as the circumstances of the case may require. Under the second alternative, the Tribunal may instead of directing reinstatement give the relief of compensation to the workman or award a lesser punishment. ... It was for the Tribunal, therefore, to decide as to which of the two alternatives it should a'dopt. But the Tribunal is always bound to exercise its discretion judicially and decide to adopt either the first course to direct reinstatement on such terms and conditions as it thinks fit or the second course to award a lesser punishment in lieu of reinstatement as the circtmstances of the case may require. The order of re.instatem• with half back wages is an order pf the firs\ 9ategory and nQt of the second category. The

F.

, payment of only half of the back "'ages is a cc 'dition of the reinstatement and not a punishment for the mi; conduct of the ·

workan. '~ .': · · ·

.. • The High. Court then came to the conclusion tha~ the cider of. reinstatement was not called for ad proceeded to indicate: ' ,. • • • • r•

"The question now is shold the award be set aside and the case be remitted back to the Tribunal for a fresh deter- millation of.the inatter in acco.fdance with law of Should , the . proceeding be concluded by making a reasonable modification .

in the award of the Tribunal?" · ' ·· · .

. ,, The High Curt thereafter vacated th.; order of reinstatement holding that ends of justice would be served by directing payment of . compe_nsation tothe rcspondentwi:irkman in lieu of reinstatement·

and quantified th~ compensation at Rs .. 15,000. Thismodification. by the. High Court . is assailed in appeal at :it-he instance of the workman. · ·

. . . - Section llA of the Act provides : ·

"Where an industrial dispute relating to the disharge or dismissal of a workman has ·.been referred 'to a Labour Court, Tribunal or National Tribunal. for adjudication and, in the course of the adjudication proceedings, the Lab.our Court, Tribunal or National Tribunal, as the case may be, is satisfied ·

that the order of. discharge or dismissal was not justified, it may, .by its award,' set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and ccinditions, if any;•as it thinks fit, or give such other relief io. . the workman including the award of any lesser punishment iri'

lieu of discharge or dismissal as the circumstances of the case may require." '

. . Wide discretion i• vested in the Tribunal undef this povision and in a given case on the facts established the Tribunal can vacate. the order of dismissal or discharge and give suitable directions.. It is a well-settled principle of law that when an order of termination . of service is. found . to. be bad 'and. reinstatement is directed, th e wronged workman is ordinarily entitled to full. back wages unless . for any particular reason the whole or Oa. part of it is asked. to he

' .

. .

1.§. itA'tHOR v. BAIDYANATH AYURVIID (Ranganath Misra, J.) 227 )

< •

withheld. The Tribunal while directing reinstatement and keeping the delinquency in view could withhold payment of a part or the whole of the back wages. In our opinion, the High Court was right in taking the view that when payment of back wages either in full or part is withheld it amounts to a penalty. Withholding of back wages to the_ extent of half in the facts of the case was, therefore, by way of penalty referable to proved misconduct and that situation could not have been answered by the High Court by saying that the relief

of reinstatement was being granted on terms of wi.thholding of half of the back wages and; therefore, did not constitute penalty.

Under Section llA of the Act, advisedly wide discretion has been vested in the Tribunal in the matter of awar_ding relief according to the circumstances of the case'. The_ High Court under Article 227 of the Constitution does not enjoy such power though as a superior ''\.-< court, it is vested with the right of superintendence. The High Court is indisputably entitled to scrutinii; C the orders of the subordinate tribunals within the well accepted limitations and, therefore, it could in an appropriate case quash the award of the tribunal and thereupon remit the matter to it for fresh disposal in accordance with law and directions, if any. The High C Ui t is not 'entitled to exercise the powers of the Tribunal and substitute a; i award in place oi the one made by the Tribunal as in the case of an appeal where it

. -._ lies to it. In this case, the Tribunal had directed reinstatement, the

r High Court. vacated the direction of reinstatement and computed compensation of Rs. 15,000 in lieu of restoration of ser, ce. We are not impressed by the reasoning of the High Court that reinstate-• • ment was not justified when the tribunal in exercise of its wide discretion given under the law found that such relief would meet the

ends of justice. The Tribunal had not recorded a finding that there was loss of confidence of the employer. The job of a libraian does > not involve the necessity. of enjoyment of any special confidence of ,; the employer. At any rate, the High Court too did not record a finding to that effect. Again, there is QO indication in the judgment of the High Court as to how many years of service the appellant had put in and how many years of service were still left under the Standing Orders. The. salary and other service benefits which th~ appellant was receiving also did not enter into the consid_eration of the High Court while '<omputing the compensation. We are, there- -, . / fore, of the view thaf the High Court had no justification to interfere with e direction regardi!lg reinstatement to service and in procee-

D •

SUPR.~MB COURT REPORTS

{1984] 3 S.C.R.

ding to substitute the direction by quantifying compensation of Rs. 15,000 it acted without any legitimate basis.

Mr. Prasad for the respondent no. 1 invited our attention to the fact that the High Court was cognizant of the necessity of a remand

. but taking into consideration the delay involved and the fact that a remand was unnecessary in view of ihe nature of theorder it was going to . make took upon itself to give a final decision. We reiterate that ordinarily it is not for the High Court in exercise of the jurisdiction of superintendence to substitute one finding for another and similarly one punishment for another. We may not be understood to. have denied that power to the High Court in every type of cases.

It is sufficient for our present purpose to hol.d that on the'.facts made •out, the approach of the High Court was totally uncalled for and the manner in which the compensation was assessed by vacating the_order ofreinstatement is erroneous both on facts and in law.

The appeal, therefore, is :!!lowed and the order of t)le High .Court is set aside and the award of the Industrial Tribunal is restored.

The appellant became entitled to reinstatement within a month from November 24, 19]9, when the award was made. He would, therefore, be entitled to full wages and other service benefits from December 24, 1979, taking the month's allowance given in the awardinto account .. He would also be entitled to the half of the -back • wages in terms of the award from May t4, 1977 till December 23,

1979. We direct the Tribunal to compute the amount so due as back wages and the appellant is entitled to 12 per cent interest on the siim from January 1, 1980, till payment. The appeal is allowed with costs. Hearing fee assessed at Rs. 2000.

N.V.K.

Appeal allowed . •

• . .

' ,

JITENDRA SINGH RATHOR

BAIDY ANA TH A YURVED BHAWAN LTD.

D.A. DESAI

RANGANATH MISRA, JJ.

Constitution of India

Art 227

Industrial Disputes Act 1947

section 33A

Article 227

Article 227

Patna High Court

M.K. Ramamurthi

S. N. Singh

-RANGANATll MISRA

Article 136

section 33A

Industrial Disputes Act

clause 16(iii)

Article 227

Article 227

Prasad

December 23,

1979

January 1, 1980

N.V.K.


• • 229

GHANSHYAM OASS ANO OTHERS

v. •

DOMlNION <:1F INDIA AND OTHERS

March 20, 1984 -

[D.A. l>ESAI, A.P. SEN AND V. BALAKRISHNA ERADI,'.JJ.] ,

Contract with Government and claims arisillg therefrom-Contractor issues notice to Gove, rnment under section 80 C.P.C. (before the amendment in 1976) hut dles before the instit!on of the suit-The legal representatives of the contractor institutes the suit on the basis of the notice issued by the contractor-Whether a fresh notice under section 80, C.P.C. is necessary and for want of such_ a fresh

notice the suit itself ii not maintainable-Code of Civil Procedure (Act Vof 1908) section 80 (as is stood before the Amendment Act of 1976), Scope of.

The plaintiff's father Seth Lachhman Dass Gupta entered into a contract with the Governor General-in-Council for the suppJy of CharcoaJ tO the Military Supply Depot, Agra and received payments for the same at the contractual rate froln time to time. Tfi.e contract contained an escalation clause viz. cl. 8 to the *' effect 1hat in case the Price of charcoal was increased bY more than 10% of the stipulated rate during the subsistence of the contract', the contractor would be entitled to the price at the higher rate. During the periOd of..pie contract, the rate of charcoal went up continuously. The military aul!'"orities paid at the enq, anced rate for the part of supplies w.hi!C for the rest they refused to pay more than the contractual rate. He accordingly set.ied a notice to the Government under s. 80 of the Code of Civil Procedure, 1908 J!laking a claim for payment of a sum of Rs. 20, 119.so p. in terms of clause 8 of the contract beint1 the dill'erence between the enhanted rate and the contractual rate for the supplies paid 'for.

But before.he could bring tl).e si.Iit against tbe Government," he died. Thereupon_, the respondents brought a suit as his legal heirs and successo1s.claiming the amount. , the defendants contested the claim inter alia on 'the ground that the notice given by Seth Lachhman Dass could not eoure for the benefit of the plain tiff's nd. therefore the suit was bad for want of notice under s. 80 of the Code.

The Court of first inftance held that no further notice under s. 80 was necessary as the notice served by the plaintiff's father Seth Lachhman Dass must enure to their benefit.

On appeal, the High Court reversed his decision on the point and held that the notice given by the plaintiff's father was insufficient and wns not a valid notice under s. 80 of the Code insofar as the plaintiff'• were concerned. Against the judgment, the plaintiff's preferred an appeal by special leave.

Allowing the appoal, th• Court

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SUPREME COURT REPORTS [1984} 3 s. C.R. ·,,(

HELD : 1. The question as· to ... whether a, notice under s. 80 is valid or not is a question of judicial construction. S. 8Q of the Code is but a part of the Procedure Code passed to pro't'ide the regulation and machinery, by -means of wblbh the. courts may do justice between the parties. It is therefore merely a part of the adjective law and deals. with procidure alone and must be interpreted in a manner so as_ o subserve and advag.ce the cause of justice rather than to defCat it. As far as possible, no Proceedings in a court of law should be aUowed to -be defeated on mere technicalities. This is the principle oil -which OQ.rs laws of procedure are based. [238A, 239GH, 240A-CJ

2. The whole object of serving a notice. under s. 80 is to give the Government Sufficient warning of the case which is going to be instited against it' and that the GOvemment, if it so wished ca.n settle the claim without litigation or afford restitution without recourse to a court of law. Though the terms of s. 80 . have to. be strictly complied with, thai does not mean that the notice should be scrutinised in a pedantic manner di.vorced from COlJlmon sense. The point to be con1idere'd is whether the notice gives suffiCient information as to the nature Or the claim such as would enable the recipient to avert the litigation. If the notice substantially fulfills its work of intimating the parties concerned generally of the y.., nature of the suit intended to be filed, it would be sufficient compliance of the . section. While interpreting ttie pfe .. amended Section the courts must have due regatd to the change in. law brought about by subs. (3) of s. 80, which shows legislative acceptance of the rule of substantial compliance instead of strict compliarice. [240DE, 242C.E]

Sangram Singh v. Election Tribunal, Kotah relied on •.. •

3. In the present case the requirement of s. 80 that there inust be identity I between tuse of RC?tion and the ielief claimed in the notice as well as in the ~·- plaint, is fulfilled.

A• resards the requirement of identity of the person who issues the notice with the ycrson who brings the suit, in this case the notice contained the name of the original claimant i.e. the father of the plaintiffs. The notice reached the concerned department of the Government where the Govern .. ment bad opportunity to examine the nature of the claim and decide whethi:r it should accept or contest the claim. The conce_rnCd Government authorities served a J:eply on the plaintiff'; father that his claim was not acceptable. There ... after he died and his right to file the suit for enforcement of the claim having devolved upon his heirs i.e. the plaintiff's, the plaintiffs filed the suit for enforce.. .{_~ ment of the same claim: In the circumstances, . if s. 80 is held to ha"Ve '"" not been compliCd With, as done by the Hiah Court, great injustice would _be done to the plaintiffs in the matter of filiD.g suits to the Government inasmuch as in case-of insistence on fresh notice, the period of limitation to file the suit would expire in the meantime. Such a situation is not intended b; t the Code.

Thus the requirement of s. 80 was clearly fulfilled in this case but the High Court having allowed the technical plea of the defendants, the plaintiffs have been deprived of their legitimate claim for at least 35 years.

[238DH, 239A-C, 240GH],..- -'-

ff S.N. Dutt v. Union of India, (1962] 1 $.C.R. 560; Mahadev Dattatraya Rajshri v. Secretary of State for India, [1930] 32 Botn. L.R. 604; and. Bachchu Singh v. Secretary of State for India in Cuoncll; [1902) 25 I.L.R. 1.87, overruled.

clii-NsmAM v. ooMINroN oF rnn1A.(Sen, J.)

, . . • ; I'

Raglzuth Dass V. Unio,;-of India, (1969} I S.c.R: 450; Union of Iridia v.

Jee'wan -Rilm A.I.R. i958. S._C. 905; State Of Madras v. C.P. Agencies~ A.I.R. "

1960. S.C. 1309 and Amar Nath , Gogra v. Union.of India, [19~4] I S.C.R. 651, -affirmed.

Bh{igchand rac'adusa v. Secretary of State for.India in CounCi/, '[19211 I.A: 338; / T./-. tr,-C"J~" hettiar v. Governmeitt of the. Provif:ce of Jfadras [1947] ·- I.A. 7f: and Govern;,, en1 of the Provice of Bombay v. Pestonji Ardeshir Wadia - (1949] 76 I.A. 57; referred to. ' · ·

C1ViL. APPELLATE JUR!SDICTrON: Civil' Apperu No. 82 of 1971.

 From Judgment and Decree dated 26.2.65 of Allahabad High. · c .

Court in first appeal Nn. 457 of 1952. ' . .

J.P. Goyal and S.K. Jain for the appellants.·

V.C. Mahajan and A. Subhashini for the espondents.

D The Judgement of the Court was , delivered by ·

. ' SEN, J. This appeal on certificate brought from .the judgment and decree of the Allahabad High Court datedFebruary 26, 1965 reversing the judgment .and decree of the Civil Judge, Agra dated August 25,. 1952 and dismissing the plaintiff~' suit for recovery of E Rs. 26,000 raises , a question of some importance upon s.80' of the Code of Civil Procedure, 1908. . , · ·

The facts giving rise.to this appeal may be shortly tated. On .. , November 12, 1949, the plaintiffs Ghanshyam Dass .and his two ' . • minor. brothers Shree Ram and Mohan Lal brougat the suit out' of which this ppeal arises; in the. Court of the .Civil Judge, Agra for. recovery of a sum of Rs. 26,000 against the Dominion of India . . through the Defence Secretary, New Delhi. . It was' pleaded that ·. .

their late father Seth Lachman Dass Gupta entered into a contract • with the• Governor General-in-Council for the supply of charcoal , to the Military Supply Depot at Agra during the period from' April I, 1943. to March 31, 1944. In pursuance thereof, lie made .. necessary supplies and• received payments for the same at the con-· .

tractual rates from time to time. •It was pleade<I that the contract - . contained an escalation clause viz: clause 8, to the effect that in case ·

the price of charcoal increased by more than iO% of the tipulated rate during the subsistence or'the contract, the contractor would be . entitled to the price at the higher rate,' It was alleged that from

J.,

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sUPRllME COURT REPORTS [1984] 3 s.a.il.

lhe date of-the Contract, the rate of charcoal went up continuously to 44.8% in July, August and September 1943, 93.1% in October, November and December 1943 and 82.7% in January, February and March 1944. Accordingly Seth Lachman Dass made a demand for payment of price at the increased rate. The military authorities paid at the enhanced rate for par~ of the supplies while for the - rest they refused to pay at more than the contractual rate. Seth Lachman Dass served a notice Ex. A-8 on tb, e Dominion of Jfdia through the Defence Secretary under s.80 of the Code of Civil Procedure, 1908. It appears tliat before his death,' on or about September 15, 1948 he received a letter from the military.authorties rejecting his claim fo.r payments at the enhanced rate but before he could institute any suit he died on October 28, 1949. - .'ifhereafter, on November 12, 1949 the plaintiffs who are his three sons, brought the suit as his legal heirs and successors claiming the amount. The defendants contested the claim inter a/ia on the ground that the notice Ex. A-8 given by Seth Lachman Dass could nofenure for the benefit of the plaintiffs and therefore the suit was bad for want of a notice "under s.80 of the Code. The learned Civil Judge, however, held that no further notice under s.80 was necessary as the notice Ex. A-8 served by the plaintiffs father Seth Lachman Dass must enure for their benefit.

He found that the plaintiffs were entitled in terms of clause 8 of the contract to receive a sum of Rs. 20,?lO.SOp. being the difference between the enhanced rate and the contractual rate for the supplies paid for and accordingly decreed the plaintiffs' claim to that extent. But on appeal the High Court, his defision on the pointlwas reversed upon the .view that the notice Ex. A~8 .given by the plaintiffs' father was insufficient and was not a valid notice under s.80 of the Code of Civil Procedure insofar as the plaintiffs were concerned.

The short question involved in this appeal is whether the notice Bx. A-8 given by the iplaintiffs' father Seth Lach man Dass Gupta before his death under s.80 of the Code of Civil Procedure,

1908 would enure for the benefit of'the plaintiffs.

Section 80 of. the Code as it stood on the gate of the institu tion or 'the suit, insofar as material, is reproduced below :

"80~ l'{ptice: No suit shall be instituted against (the Government) or against a public officer in respect of any act purporting to . be done such public officer in his official

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GHA.NSflYAM v. DOMINION OF INDIA, (Sen, J.) 233

capacity, until the expiration of two months next after notice A in writing has been delivered to, or left at the office of-

(a). in the case of suit against the Central Government ............ a Secretary to that Government ;

••• • •• • •• • ••

and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plailltiff and the relief which he

claims ; and the plaint shall contain a statement that such C notice has been so delivered or left."

In the celebrated case of Bhagchand Dagadusa & .Ors. v.

Secretary of $tate for India in Council & Ors1., the Judicial Committee of. the Privy Council held that this section is express, explicit an mandatory and it admits of no implications or exceptions.

The words of Viscount Sumner delivering the judgment of the Privy Council have become classical :

''Section 80 is express, explicit and mandatory, and it admits of. implications or exceptions. A suit in which' (inter alia) an injunction is prayed still "a suit'' within the words of the section, and to read any qualification into it is an encroachment on the function of legislation. Considering how . long these and similar words have been read throughout most of the Courts in India in their literal sense, it is reasonable to suppose that the section has not been found to work injustice. but, if this is not so, it is a matter to be rectified by an amending Act.':

The Privy Council rejected the contention put forward before them that the section deals with mere procedure and held that the requirements of s.80 are to be strictly complied with and are applicable to all forms of action and all kinds of relief. It further held . that s.80 imposes a statutory and unqualified obligation upon the Court and in .the absence of compliance with s.80, the suit was not maintainable, either as to the declaration sought or injunction prayed for.

(I) (1927] 54 I.A. 338.

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SUPREME COURT REPORTS [1984] 3. s.c.il..

Earljer, in-ome cases, a liberal construction was put upon the section and it was held that a notice is sufficient ifit substantially fulfils its objection in informing the parties concerned of the nature of the suit to be filed, and that a notice is not invalid merely because it .is given by two out offhree plaintiffs. But since the Privy Council judgment in Bhagchand's case, supra, strict compliance with the . terms of s.80 has been enforced a.nd a notice given by one. of two plaintiffs has been held to be insufficient.

Again, in a case where the plaintiffs' father gave notice. and then plaintiffs filed a. suit after the father's death, the notice given byihe father in respect of the same cause of action was held insfficient :Mahadev Dattatraya Rajarshi v.

Secretary of Swe for India1 following Buchan Sigh v. Secretary of State.•

It is plain from the terms of s.81) that the notice inust fulfil the req]Ji.rements set out therein., It is essential th.at the notice must state the names, descriptions and places of residence of all the plaintiffs. A notice must be such as. to enable the addresse or the recipient to indentify the claimant.

In Val/ayan Chettiar& Ors. v.

The Government of the Province of Madras & Anr'. Lord Simo.nds delivering the jildgment of the Privy Council referred to the observa tions of Lord Sumner in Bhagchand's case that s.80 is explicit and. mandatory and admits of l\O implications or exemptions, and .observed that :

"There should be identity of ihe person who issues the notice and who brings the suit. To hold otherwise would be to admit an implication' or exception for which there is no F justification."

There, the question was whether a suit brought by two plaintiffs was competent when notice .under s.8.0 was given by only one of them. Tile Privy Council. having regard to the mandatory requirements of .s.80 of the Code held that there was no valid notice and aotordingly upheld the judgment of the High Court dismissing the plaintiff's suit. So also in Governmeni of the Province Bombay

v. Pestonji Ardeshir Wadia. & Ors.,• the Privy Council reiterated the same principles where no notice had been served under s.80 specify-

(I) (1930) 32 Bom.L.R. 604.

(2) !LR (1902) 25 All. J87.

(3) [1947] 74 I.A. 223.

(4) [1949] 76 I.A. S1 .

• A.

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•.... GitANSNYM! v. DOMINION OF INriL\ (Sen, J.) . 235

: -- t • • - ' • i ing t11c n3mos and addresses of all the trustees and thertfore the p:cyisions of the section had not been complied with and it was

ac.; urdingly held that the suit was incompetent.... · . . : . . - . . . . . . . . . ' , . . . . ' As to the requirement tha.t the notice .must state the cause of . action and the reliefs,· Claimed, there is a large body of decisions laying .down• that a notice under the section should be heid to be . sufficient if it substantially fulfils its object in informing the partjes. concerned ofthe nature of the suit to be filed.

In consonance with this. view, this Court in Dhian Singh Sabha Singh & Anr, v." Union of . India,1 Union of India v. Jeewan .Ram', State. of Madras v. C.P. ·

Ageni:ies' and Amar Nath v.

Unio~ of India' has held that though the terms of the section have io be . sfrictly complied with, that does ., not mean that ihe D.otice shou.ld be scrlltinized ill 'a pedantic manner ,

oi in a manner divorced from common sense. On this principle, it has. been held. thafnotice. which states the cause of action and the relie.fs described in the annexed copy' of the ptaint (which forms part of the . notice) 'though defective _in form, complies substantially with the

section. The point to be CO!lsidered is whether the notic.e gives suffi- eient information as to the nature of the claim such as ould.enable

the recipient to avert the litigation. The relevant passage from the judgment in Dhain Singh Sabha. Singh' s case, supra, is set' out below:

.. . "We are constrained to observe that the approacb of . the. igh Court to this quetion "."a~ not .well founded. The

Privy Council no doubt -fa:.d down m Bhagchand Dagadusa v.

Secretaty of State (1927) LR. 54 LA 338) that the terms of this section should be strictly complied with. That does not however mean that the terms of the notice should be scrutini- •

zed in a pedantic manner or in a manner completely divorced from. common sense: As was stated by_ Pollock C.B .. in , -. Jones v. Nicholls (1844) 153 E.R. 149 "We must import a . little common sense into notices of this 'kind." Beaumont . C.J: also obseed in Chandu Lal Vadilal v. Govrnment of Bombay, ILR (1943) Born. 128 "One must construe sectio~ "so with some regard to common . sense and to the object with which it appears to have been passed "

, (1) [1958] SCR 781.

(2) AIR 1958 SC 905.

(3) AIR 1960 SC 1309. (4) [1964] l SCR 657.

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SUPREME co\JR r REPoR rs r1p84j 3 s.c.il.

The question as to whether notice under s.80 was invalid for want of identity .of, the plaihtiffs , Pirectly arose in the case of S.N.

Datt v. {Inion of India'. There, a no)ice was served by the appellant who wa.s the sole proprietor of a business styled S.N. Dutt & Co., (iu the name of S:N. Dutt & Co.) and thereafter he filed a snit against the Union ofindia describing t11e. plaintiff as "Surendra Nath Dutt sole proprietor of a business carried on under the name and style ofS.N. Ontt & Co.". This Co1utupheld the decision ofthe Calcutta High Court dismis_sing the plaintiff's suit holding that the person who issued the notice was not the same as the person who filed the suit.

The contentiol\ that the appellant was carrying on business nnder an assumed name arid therefore the notice was valid as S.N. Dutt & Co.

as merely the name and style of the business which he was carrying on, was rejected. The Court held that since no snit could be filed by $.N. Dutt & Co. in that name as it was not a partnership firm, it could not give a valid and legal notice in that name, and a valid notice could only be given in the name of S.N. Dutt. The decision merely reiterates the t\ile laid down by this Court in Bhagchand that "section 80, according to its plain meaning, requires that there should be identity of the person who gives the notice with the person :-\'ho brings the suit". The Court distinguished the decisions in ' Dhian Singh Sobha Singh and C.P. Agencies on the ground that the Court was dealing with defect in describing the cause of action and the relief claimed and where it concerns the relief and the cause of action, it may be necessary to use common sense to find out whether s.80 of the Code has beeri complied with, and stated :

. ' "But where it is a question of the name of the plaintiff, there is in our opinion (little scope for the use of common sense,) for either the name of the person suing is there in the notice or if is not. No amount of common sense will put the name of the plaintiff there, if it is not there."

In the case of Raghunath Dass. v Union of India & Anr.• the same question arose but the Court struck a discordant note there.

There, the notice emanated from M/s Raghunath Dass Mulkhraj and in the body of the notice at several places the expression "we" was used. Further, the plaintiff had purported to sign for M/s Raghunath Dass.Mulkhraj but at the same time he signed the notice as proprietor of M/ s Raghunath Dass Mulkhraj. The Court held

'(!) [1962) I SyR 5§0.

<2> [19691 t s; c.R. 450

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• GHANSHYAM v. DOMINION OF INDIA (Sen, J.) 237

that that was a clear indication of the fact that M/s Raghunath Dass Mulkhraj was a proprietary concern and the plaintiffs was its proprietor. In repelling the contention kthat there was no identity of the person who gave the notice with the person who filed the suit the Court observed :

"Whatever doubts that might, have been possibly created in the mind of the recipient of the notice, after going through the bocly of the notice as to the identity of the would be plaintiff, the same would have been resolved after going through the notice as a whole."

There, the plaintiff had averred in the plaint that he was carrying on his business under an assumed name and style of M/s ' Raghunath Dass Mulkhraj meaning thereby that the concern was a proprietary concern and that the name given to it was only a trade name.

He had also stated ip the plaint that he had given a notice under s.80 of the Civil Procedure Code.

In the written statement filed on behalf of the Dominion of India, the validity of the notice issued was not challenged. Regarding the hotice in question there was only an averinent in the written statement that suit was barred by s.80 of.the Code as no nolice under that section appears to have been served on the Administration. Ii:i repelling the contention that the suit was bad for want of notice under s.80 of the Code, the Court said:

"The object of the notice contemplated by that section is to give to the concerned Governments and public officers opportunity to reconsider the legal position and to make amends or settle the claim, if so advised without litigation.

The legislative intention behind that section in onr opinion is that public money and time should not be wasted on unnecessary litigation and the Government and the public officers should be given a reasonable opport!Pity to examine the claim made against them lest they should be drawn into avoidable litigations. The purpose of law is .advanceme.nt of justice. The provisions in s.80, Civil Procedure Code are not intended to be used as boo'\Jytraps against ignorant and illiterate persons. In this case we are concerned with a narrow question. Has the person mentioned in the notice s " plaintiff brought the present suit or is he someone else ? T1:is

qustion has to be decided by reading the notice as a whole m

11 reasonable mannef,"

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138 SUPREME COUltT REPORTS

[1984] 3 S.C.R.

 ·, In the ultimate analysis, the question as to whether a ncJtlae undeu.80 of the Code is valid or not is a question of judicial con struction. The Privy Council and this Court have applied the rule of strict compliance in dealing with the. question of identity of the person who issues the notice with the person who brings the suit. This

' . . , .

Court has 4:iowever adopted the rule of substantial compliance in ·· deali!Jg with the requirement that there must be identity between the cause of action and the reliefs claimed in the notice as well as in the plaint. As already stated, the Court has held that notice under this section should be held to be sufficient if it substantially fulfils its object of informing t.he parties concerned of the nature of the suit to be filed. . On this principle, it has been held that though the terms of the section have .to be strictly complied with, that does not mean that the notice should be scrutinized in a pedantic manner divorced. from common sense. The point to be considered is whether the notice gives sufficient information as to the natur.e of the claim such as would the recipient to avert the litigation.

Jn the present case, in the notice Ex. A8 the name, description and place of residence of the plaintiff Seth Lachman Dass, the father of the plaintiffs, was given but unfortunatory before filing the suit he died and thereafter within the period of limitation the suit was instituted by his sons on the basis of the said notice. The notice Ex. A-8 undoubtedly fulfils the requirement of s.80 insofar as the cause of action and the elief claimed are concerned as they are absolutely the same as set out in the plaint: As stated in• Dhian Singh Sabha Singh, the notice must substantially fulfil its work of intimating the parties conerned generally of the nature of the suit intended to be filed and if it does sq, it would be sufficient compliance of the section. as to the requirement that it should state the name, descriptibn and place of residence of the plaintiff, there must be identity of the person who issues the notice with the person who brings the suit

_Now . so far as the name and description of the plaintiff are concerned, the notice gives the name as Seth Lachman Dass Gupta.

Thenotice Ex. A-8 duly, reached the cuncerned department and they dealt with the notice. It is not that the Government had no .. opportunity to examine the nature of the claim and decide whether its should accept or contest the. claim. The military authorities ·-served a reply on Seth Lachman Dass before his death that his claim , was not acceptable. There was no other alternative for Seth Lachman pass but to have brought a suit for the enfor~ment of his claim,

•. (

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GHANSHYAM v. OOMINioN OF INDiA (Sen, J,) 239

.) If he could not file a suit due to his death, his right to file the suit devolved upon his heirs i.e. the plaintiffs. If the view taken by the High Court is allowed o stand, great injustice would be done to the litigants in the matter of filing suits against the Government. If fresh notice is insisted upon in such cases, the period of limitation

I . to file a suit may expire in the meantime. Such & situation is not

•. intended by the Code.

• 1 • The authorities relied upon by the High Court in nonsuiting the plaintiffs are of ancient vintage. In Mahadev Dattatraya Rajarshi's case, supra, the Bombay High Court relying upon the decision of the Allahabad High Court in Buchan Singh, held that the language .()f s.424 of the Code of 1882, the predecessor of s.80 of the present Code which was substantially in the same terms, was impera" tive and absolutely debarred the Courts from entertaining a suit without complying. with the provisions of the section. In Buchan Sing h's

~ '-< case, supra it was obser; ved by the Allahabad High Court at p.191:

"If we acceded to this contention, it appears to us that we should be adding words to s.424 which find no place in it.

It would be necessary to add after the words "name and

place of abode of the intending plaintiff" some such words as "or of the party through whom such intending plaintiff claims."

~ The Court of first instance here tried to distinguish the decision

! ,1..

' in Buchan Singh .on the ground that.the word "intending" appearing in s.424 of the 1882 Code had. been omitted from s.80 of the present

Code, and therefore the word "plaintiff" should be construed in a generic sense. The High Court however following the decision of the Bombay High Court in Mahadev Dattaraya Rajarshi held that. the notice must contain the name of the actpal plaintiff who could bring "" the. suit_ adding that "the notice must be given by .the person who becomes the piaintiff and by no other''. We are afraid, that is taking too technical a view of the matter:

S.80 of the Code is but a part of the Procedure Code passed to provide the regulation and machinery, by means of which the Courts may do justice between the parties. It is therefore merely a part of

)'\ the adjective law and deals with procedure alone and must be inter- H preted in a , manner so as to subserve and advance the cause of justice rather th<in to defeat it. In San1vam Sinh v. Election Trih"·

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SUPREME COURT REPORTS '

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nal, Kotai'1 & Anr'., Vivian Bose, J. in tis illuminating language dealing with the Code ot' Civil Procedure said : •

"It is procedure, something designed to faciliate.justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed. to trip people up. Too technical !l construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for tire furtherance of justice be used to. frustrate it.

Our laws of procedure are based on the principle that "as far as possible, no proceeding in a court of law should be allowed to be defeated on mere technicalities". Jlere, all the requirements of

s.80 of the Code were fulfiled.

Before the suit was brought, the Dominion of India received a notice of claim f1:om Seth Lachman '' Dass. The wpole object of serving a notice under s.80 is to give the Government sufficient warning of the case which is going to be institued againsHt was that the Government, if it so wished, settle the' claim without litigation or afford restitution without recourse to a court of law. That requirement ofs.80 was clearly fulfilled in the facts and circumstances of the present case. . .

It is a matter 9f common experience that in a large majority of: cases the' Government or the public officer .concerned make no use of the opportunity afforded by the section. In most cases the notice given under s.80 remains unanswered till the expiration of ; two months provided by the section. It is also clear that in a large number of cases. as here, the Government or the public officer

utilied the section merely to raise technical defences contending "either that no notice had' been •given or that the notice actually given did not comply with the requirements of the &ection. It is unfortunate that the defendants came forward with a technical plea that the suit was not maintainable at the instance of the plaintiffs, the legal heirs of Seth Lachman Dasi! on the ground that no fresh notice had been given by them. This was obviously a technical plea

calculated to defeat the just claim. Unfortunately, the technical plea so raised prevailed with the High Court with the result that the plain- ' tiffs have been deprived of their legitimate dues for the last 35 years ..

\l)i[l955]J2]S.C.R.l l.

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ditANSHYA.M v, DOMINION OF INDIA (Sen, i.) 241

The Law Commission in the Fourteenth Report, volume 1 on the Code of Civil Procedure, 1908 at p.475 made a recommendation that s.80. of the Code should be deleted. It was stated as follows :

"The evidence disclosed t!Jat in a large majority of cases, the Govrnm:ent or the public officer made no use of the opportunity afforded by the section. Jn most cases the notice given under section 80 remained unanswered till the 'expiry of the period of two months provided by th<;. section.

It was also clear that in a large number of cases, Governments and public officers utilized the section merely to raise technical defences contending either that no notice had been given or that the notice actually given did not comply with the requirements of the section. These technical defences appeared . to have succeeded in a number of cases defeating the just claims of the citizens." ·

Tile Law Commissio.n in the Twenty Seventh Report on the Code at pp;2l-22 reiterated its earlier recommendation for deletion.of s.80 and in the Fifty-Fourth Report at p.56 fully concurred with the recommendatiorrmade earlier. In conformity with the recommenda-. tion of the Law Commission, s.80 bas undergone substantial changes. By s.27 of the Code of Civil Procedure (Amendment) Act, 1976 whieh was brought into effect from February 1, 1977, the existing s.80 qas been re-numbered as s,80(1) and sub-ss.(2) and (3) have been inserted. Sub-s.(2) as inserted has been designed to give . an nrgent and immediate rlief against the Government or the public officer with' the leave of the Court. But the Court shall not ' grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit .. Proviso to S\lb:s(2) enjoins that the Court shall, if it is satisfied, after hearing the parties that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requireme.nts of sub-s.(1).

Sub-s.(3) as inserted by s.27 of the Code of . Civil Proceddre (Amendment) Act, 197b reads as follows :

"80(3). No suif instituted ag.;.nst the Government or against a public officer in respect of 11ny act purporting to be done by such public officer in his official capacity shall be . .

SUPREME COURT REPORTS

(1984) 3 S.C.lt

 dismissed merely by reason of, ny error or defect in the notice referred to in sub-section (I) if irt sch notice-

(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate . authority or the public officer to identify the person erv

ing the notice and such notice had been delivered or left at the office of the appropriate authority specified in subsection (!), and

(bJ the cause of action and the relief claimed by the plaintiff had been beeri substaniially indicated,"

By subs.(3), Parliajllent has brought in the rule of substantial . cmpliance. The present suit would be directly covered by sub-s.(3) of s.80 so inti:oduced if the suit had been brought :after February 1,11977, Unfortunately for the plaintiffs, s.97 of the Amendment Act provides that the amendment shall not apply to pending suit and the suits pending on February I, .1977 liave to be dealt as if such •• amendment had not been made. Nevertheless the Courts must . have due regard to the change in law brought about .by sub-s.(3} of s.80 of the .Code introduced .by the Amendment Act w.e.f.

February l, 1977. Such a change has a legislative acceptance of the rule of substantial compliance laid down by this Court in Dhiati Singh Sobha Singh and. Raghunath Dass. As observed in Dhian Singh Sobha Singh's case"supra, . .one must construe s.80 with some regard to common sense and to the object with which it appears to have. been enacted.- The decision in S.N. Dutt v. Union of India's 'case, supra, dues not accord with the view expressed by us and is therefore overruled.

Before parting with the case we consider it necessary to refer to one more aspect. It has frequently come to our notice that the strict construction placed by the Privy Council in Bhagchand' s case, supra, which was repeatedly reiterated in.subsequent cases, has !eel to a peculiar practice in some Courts. Where urgent relief is neceseary the practice adopted. is to file a suit without notice under s,80 and obfaih interim relief and ther.eafter to serve a notice, withdraw the suit and in.stitute a second suit after expiry of the period of th.e notice. We have to express our strong condemnation ofthishighly objectionable practice. We expect that the High Courts will .take necessary steps to put a stop to such practice.

,) ..

-.• ' .

.-'

.J •.

<lHANSHYAM v. DOMINION OF INDIA,(Sen, J,)

The result tberefc>ris that the appeal su¢cds and is allowed.

A The judgmtnt and decree passed by the Allahabad High Court

dated February 26, 1965 are set aside and those of the lear9ed Civil Judge, Agra dated August 25,. 1252 are restored. with costs-through .out. The plaintiffs shall be erttitled to further in.teres\ on the decretal amount at 6% per annum from August 25, 1952, the date of B the decree, pased by the Civil Judge~ Agra; till realization.

S.R Apf¥al allowed.

l" i

-£,'._/_ .;

229

GHANSHYAM OASS ANO OTHERS

DOMlNION <:1F INDIA AND OTHERS

A.P. SEN

V. BALAKRISHNA ERADI

section 80

C.P.C

section 80

C.P.C

Code of Civil Procedure

section 80

Seth Lachhman Dass Gupta

cl. 8

s. 80

Code of Civil Procedure, 1908

clause 8

Seth Lachhman Dass

s. 80

s. 80

s. 80

s. 80

S. 8Q

s. 80

s. 80

s. 80

s. 80

s. 80

s. 80

J.P. Goyal

S.K. Jain

V.C. Mahajan

A. Subhashini

August 25,. 1952

Code of Civil Procedure, 1908

November 12, 1949

Ghanshyam Dass

Shree Ram

Mohan Lal

Dominion of India

New Delhi

Seth Lachman Dass Gupta

Agra

March 31, 1944

clause 8

Seth Lachman Dass

Code of Civil Procedure, 1908

September 15, 1948

October 28, 1949

clause 8

the Code of Civil Procedure

Seth Lach man Dass Gupta

Code of Civil Procedure

Section 80

Central Government

Viscount Sumner

Section 80

India

Earljer

Bhagchand

Sumner

Dhain Singh Sabha. Singh

Pollock

Beaumont

AIR 1958 SC 905

AIR 1960 SC 1309

Union ofindia

Surendra Nath Dutt

ofS.N. Ontt & Co.

Calcutta High Court

S.N. Dutt & Co.

$.N. Dutt & Co.

S.N. Dutt

section 80

Dhian Singh Sobha Singh

Raghunath Dass Mulkhraj

Raghunath Dass.Mulkhraj

Raghunath Dass Mulkhraj

<2> [19691 t s; c.R. 450
-<

• GHANSHYAM v. DOMINION OF INDIA (Sen, J.) 237

that that was a clear indication of the fact that M/s Raghunath Dass Mulkhraj was a proprietary concern and the plaintiffs was its proprietor.

Civil Procedure Code

Seth Lachman Dass

Dhian Singh Sabha Singh

Seth Lachman

Mahadev Dattatraya Rajarshi

Bombay High Court

Allahabad High Court

Buchan Singh

Buchan Sing

Mahadev Dattaraya Rajarshi

Vivian Bose

Seth Lachman Dasi

Code of Civil Procedure, 1908

section 80

the Code of Civil Procedure

February 1, 1977

Parliajllent

February l, 1977

Dhiati Singh Sobha Singh

Raghunath Dass


RAJ.ENDRA SINGH & ORS. ETC.

SMT. USHA RANI & ORS. ETC.

February 27, 1984

[S. MURTAZA FAZAL ALI, A •. VARADARAJAN AND

RANGANATH MISRA, JJ,]

Representaiion, ofthe People Act 1951, ections 81(3) and 86.

E{ection Petition-Sen'ice of true o"nd exact copy of election petition on respondents-Duty of election petitioner-Consequences of failure _of-Dismissal in limini of election petition .

• Amendment of election petitioll-W!tether pern1issible. , .

Tlie respondent fi1e, d an Election Petition for setting asipc the election of the appellant. ta the State Legislative Assembly. The appellan_t filed a petition for rejection of the said Election Petition in lirnine under Sectio.n 86 of the Representcltion of the People Act1 1951 on the_ ground that the copy of tiie petition' served o~ him was neither attested to be a true copy nor a correct copy of the original petition, asconte"n1plated by the provisions conla-ined in section . 81(3). The case of the respondent-election. peti_tidnerwas that two sets of copies were filed, one set being correct as require.d . by the Act and the other set inc01 • rect containini vital om.issions and mistakes, the appellant having got a correct copy as rquired by section 81(3) there was compliance with the requirement of . the sectjon.

The High Collrt held that as. the respondent had filed correct coPies, the proVisioris of section 81 (3) \Vere not violated and it was for the appellant to have chosen the cofrect copy fron1 the two sets and invoked the doCtrine of benefit of-doubt "in order to cure the non-compliance of the mandatory provisions of section 81(3), and rejected the applii; ation to dismiss the Election Petition.

Jn the connected appeals, the lsJ Reponderrt had filed separate Election Petitions fcir setting aside the election of the appellants to the .Rajya Sabha.

When the said petitions came up before the High Court for hearing an applicatin was made by the respondent. for amendment of the Original petition by insertion of page 17 which was aliowed. The 'appellants filed .petitions before the Election judge for rejecting the Election Petitiori on th~ ground that no amendment could be allo; wed which \\'ould have. the effect of defeating or bypassing th'e provisions f section 81(3). of .the Act, and that the original petition served on the appellants did not contain page 17 and hence was not the cdrrect

and exact copy of the election petition.

The High Court rejected the application to dismiss the Election Ptition. . . ' . ., Allowing the Appeals.

AAJBNDM SiNGH v. OSHA R.\Ni 23

HELD; t. The mandate contained in section 81(3) is clear and specific and A' requires that every copy of the.election petition must be a true and exact copy of the petition. The consequences of this mandatory provison annotbe got over by praying for an amendment of te election petition beuse that ':ould defeat the very object and purpose of sect10n 81(3), [28 F, 29 BJ

Jn the instant cases,. the judgment of the High Court are set aside, and the election petitions dismissed , in Ii mine 1:1nder s_ection 8<? of the Act.

(30 DJ

Sharif-ud-Din v, Abdul Gani Lone, [1980] 1 SCR1177; referred to,

2, Section 81 (3) an~,86 of the A1>t do not conmplate the filing of incorrect coPies and if an election petitioner disregards the mandate contained in

ection 81(3).by filing incorrect copies, he takes the risk of the petition being C dismissed in limine under section-86. It is no part of the duty of the resp_ondent to wade thfough the entire record in o+der to fiod out which is the correct copy.

If out of the copies ftled, the respondent's copy fs fouJid to ba an incorrect one, it amounts to n6n-compliance of the provisions' of section 81(3) which is sufficiebt to entail a dismissal of the election petition at the behest of the respondent.

[27B; CJ

3. If an election petitioner files a number of copies, some of . which may be correct and some -may be incorrect, it is his duty to see that the copy

rved On the respondent is a correct one.' [27 A}

J.)

In the instant e, it has D.ot been proved _by the responde_p.t that correct copies of.the Clection petition hadbeen filed or, that the appellant got the Cor.. . E rect copy and not the incorrect one, in the face of the clear and categorical assertion by him that he did not rceive the correct copy. [27 FJ

4, The mandate contained in Section 81(3) cannot be equated withs, 537 of the Code of Criminal Ptocedure which _m_akes certain omissions a! a curable irregularify'. No. such concept can be imported into the election law because the object of the law is that the electoral process should not be set at naught and F an elected candidate should not be thrown out unless the grounds mentioned in the Act arc clearly and fully proved, [27 DJ' .

5. Parliament ill its wisdom has not made any atte.mpt to interfere with the premptive and mandatory provisions of section 81 (3) resulting in the consequence of dismissa, l of the p_etitfon under section 86 despite the observa tions in Satya Narain. v. Dhija Ram & Ors. [1974] 3 SCR 20, [30 CJ

CIVIL APPBl.L.\TB JIJR!SDICTION Civil Appeal No. 3702 (NCB) of 1982. ,

Appeal by Special leave frotn the judgment and Order dated the 2nd August, 1983 of the Allahabad High Court'in Election Peti

tion No. 28 of 1980.

~4.

SUPREME COURT Rlil'ORts (I 984 J 3 s.c:R..

With

. Civil Appeal No. 9 of )983

. Appeal by Special leave. from the Judgment and Order dated the 15th October)'Ist December, 1982 of the Allahabad High Court • in Election Petition No. I of1982.

• And • Civil Aweal No. 10 of 1983

 Appeal by Special leave from the Judgment and Order dated. the 15th October, 1982 and !st December, 1982 of the. Allahabad High Court in Election Petition No: 1 of 1982 ·

J>- S. N. Kacker, R.L. Srivastava, Rajesh and J!. K. Verma for the Appellants in CA. No. 3702, of 1982,

Appellant in person in CA. No. 10 of 1983.

M.C. Bha11dare and V.K. Verma for the Appellant in CA. 9/83.

Yogeshwar Prasad, Ms. R. Chhabra; Sujat Ullah hnd K. k.

Gupta for'the Respondents.

The Judgment'of the Court was delivered by

FAZAL ALI, J. As these appeals involve. common points of law, we propose to decide them by one judgment. •

Civil Appeal No. 3702 of 1982

This appeal arises out of. election to '375-Iglas Assembly Constituency, Aligarh to the Uttar Pradesh LegisliLtiVe Assemb\y' which was held on May 28, 1980 and the result.of which was decfirre'd on _June 1, 1980, in which the appellan_t was declared elected. Respondent No: I, Snit:· Usha:.kani had:a1so contest¢' the nove mentiOned election but :Was defeil.ted. Aggrieved by the resulf of-th~ , aforesaid election,' Smt. Usha Rani filed an election petition oil. .

' .

., .

RAfENDRA ~INGH v. USHA RaNI IFazai Ali, J.) 25

July 15, 1980, at. the residence of the Registrar of the Allahabad A Hlgh'. Court. Thereafter, on September 24, 1981, the appellant filed a petition before the High Court for rejection of the election petition • filed by the respondent, on the ground that the copy of the petition served on him was neither attested to be d true copy nor a corect copy of the origii:tal : petition, as contemplated by the provis.ions contained in s. 81 (3) Of the Representation of the People Act (here-

 B inafter referred to as the 'Act') and hence the election petition should be rejected in limine under s. 86 of the Act. Snb-s. (3) of s. 81 niay be extracted thus ;

. '

"SJ. Presentation of petitionsxx xx xx

(3) Every election petition shall. be accompanied by as many copies thereof as there are respondents nientioned in . the petition, and every such copy shall be attested by the. petitioner under his own signature to be a true copy of the petiiton.'' ·

An analysis of this sub-section would reveal that every election p"etition should be accompanied by as many copies as there

c •

are respondents and that every copy should be attested by the E

etitioner under his own signa:ture. If theke reqUirements are not f'ollowed stdctly and literally, it would result in dismissal or the

ection petition without any trial as provided by s. 86 of the Act. • .

In the instant case, the main point raised by the appellant was tltat two sets of copies were filed by the election-petitioner in th F Higl:i Court, one set bdng a corrrect and exact one and the othe; cblltaining vital omissions and mistakes. This position is not dispu.' . tild:by the responde11, t (election, petitioner). In reply to the preliminary objection rai.sed by the appellant, the respondent rebutted the

cha.i; ge on the ground that the appellant had got a correct: copy as required by s. 8I (3) of the Act .and, therefore, he could not be heard G

I@ complain of any non-compliance with the provisions of the afore- &aid sub-section. ' ..

"· -1' ' .. < - A; fter goinithrough the' judgment ofthe High Court it is not C!wr whQtlierthe appellant received-the correct copy of the petition ll 6i an: iricorrect due. On tlie other hand, on the evidence and admittetl faets the following cirumstances appear to be undisputed ;

SuPREMB COURT REPORtS (i984J 3 S.C.it.

(a) that two sets of copies were filed by the _election-petitioner in the High Court, ·

(b) that one set was correct as required by the Act" aud

(c) the other set was incorrect as it contained vital missions

and mistakes regarding the details of corrupt practices alle ged against the appellant. ·

There is, however, no clear evidence or finding to show that the copies which were received by the appellant were correct or incorrect • c • and there \s some divergence on this point. The High Court seems to have come to the C<)nclusion that.as the respondent had filed cor . reel copies also, she did not violate the provisions of s. 81 (3j ao., d it was for the appellant to have chosen the correct copy from the two sets. The learned Judge of the'High Court has.also invoked )he . doctrine of benefit-of-doubt in order to cure the non-compliance of D the mandatory provisions of s. 81 (3). ·

 On going.through the relevant evidence we find that there is overwhelming material to show that the. appellant did not receive the correct copy and even the respondent in her evidence did not categorically deny this fact. The respondent in her evidence be fore the Courtadmitted that out \>f the 22·23 copies filed by her, 10 copies were correct and were duly signed by her and the rest were left with the counsel with instructions to get them corrected, Therefore, she was nof at all sure whether all the copies were correeted or not. She further admitted that in some of the copies she did not initial the various corrections and that Exts. R-1,

R~2, R-3 and R-4 were not out of those 10 copies which had been filed by he_r along with the election petition at the residence of the Registrar. There is, however, clear evidence to show that the copies which were received hy the appellant were Exts. R'i to R4, which admittedly were not correct. copies of the election petition.

This bein~ the position, it is manifest that he appellant did not receive the correct copi'es as contemplated by s. 81 (3) of the Act, The respondent has also not been able to prove that the copies served on the appellant were out oft he 10 corrected copies which she had

signed and filed. It appears that in view of a large number of copies H of the petition having been filed, there was an utter confusion as to which one was correct and which was not. It is obvious that if an .. . ' ,

kAlENDRA SINGH v. USHA RANl'(Fazai Ali, i.) 21

electionpetitioner files a number of copies, sme of which may. be correct and s1>me may be incorrect, it is his duty to see that tire copy served on the.respondent is a correct oue. A perusal of ss. 81 \3) and 86 of the Act gives the'impression that they do not contemplate filing of incorrect copies at all and if an election-petitioner disregards

'the mandate contained ins. 81 (3) by filing incorrect copies, he takes,_

the risk of the petition being dismissed in limine under s. 86. _It is 8 no part of the duty _of the' respondent o wade thfough tl1e 'entire record in order to find out which is the correct copy. If out of the copies filed, the respondent's copy is found to be an incorrect one, it amounts to non-compliance of. the provisions of s. 81 {3) which is sufficient to entail a dismissal of the e.Jection petitionat the behest ..

Hence, the mandate contained ins. 81 (3) cannot be equated . with s. 537 of the Code of Criminal Procedure which makes certain omissions as a curable irregularity. No such concept can be imported into ihe electimilaw because the object of the law is that the electoral process should no~- be set at naught 'and an elected candidate should not be thrown out unless the grounds mentioned in the Act are clearly and fully proved. An election dispute con

cerns the entire constituency and in a parliamentary democracy it is of paramount importance that duly elected representatives should be available to share the responsibility in the due discharge of their duties. - That is why the law provides time-bound dis)?osal of election disputes and holds out a mandate for procedural compliance.

In these circumstances, therefore, in the instant case there was absolutely 'no justification for the learned Judge to h_ave invoked the doctrine of benefit-of-doubt. We are satisfied that it has not been proved by the respondent that she filed correct copies of the election petition of, for that matter the appellant gol the correct copy and riot . the incorrect one, in the face of the -clear and categori1al assertion by him that he did not receive the correct c9py.

For these reasons, therefore, the appeal is allowed and the election petition fiied by the respondent is dismissed under s .. 86 of the Act. There will no order as to costs. ·

Civil Appeal Nos._9 & 10 of 1983

There two connected appeals also involve more or less the same H point of law as was involved in. Civil Appeal No'. 3702 of 1982, with the difference that in Civil Appeal No. 9• of 1983, J.P. Goyal,

28 ~UPREME coul<:t REPORTS

[1984] 3 S.C.R.

and in Civil Appeal No. 10 of 1983;.Bishamber Nath Pandey, (appel lantsl were declared elected to. the Rajya Sabha on March 29,

1982. An election petition to sefaside their election was filed on May 10, 1982 by the. Respondent (Raj Narain) making a number of allegations. When the case came up before the Court on 5. 7 .82, an application was made by the respondents for amendment of the original petition by insertion of page 17, which was allowed. The. appellants filed a petition before the Election Judge for rejecting the election petition of the respondents because no amendment could be allowed which would have the effect of defeating or bypassing the provisions ofs.81 (3) of the Representation of the People Act (for short, referred to as the 'Act').

It may be stated here that Shri Bishamb_, r Nath Pandey has in the meantime been appofoted as Governor of OriSsa and has resig ned his membership of the Rajya Sabha, Therefore, as requested at the Bar, his name is deleted from the catego_ry ofappellqnts:

The main argument on behalf of the remaining appellants' was that 11 copies of the ebction petition were filed on 10.5.1982 and although the. copies wl1ich were served e>n them did contain page 17 yet the original petition.did not contain page 17 and was sought to be added orily by". way of approacl1ing the Court for amendment of the petition. It was further con.tended that the Court had n~ jurisdiction to accede to the prayer for amendment of the petition when at the time of filing the petitioµ, the mandate contained in s. 81 (3) was not complied with. In other words, the . position seems to be that wl1ile the copies which were sei; ved on the appellants did contain page 17 yet the origi1ral election petitton dd. not contain page 17.

This being the admitted position, it could not be s•id that the copies served on the appellants were the correct. and exact copies of the electionpetition. The provision, ois. 81 (3) is clear and •pecific and requires that every copy of the election.

Petition must be a .true and exact copy of the petition.

The learned counsel for the respondent S\lbmitted that this is a highly technical objection and did not cause aity prejJ.ldice to the appellants bec.ause so far as their copies WeFe concerned they already contained page 17. Mr. Bhandare, counsel fot the .appellants, however, submitted that this is beside the point and does not cure the invalidity of the election petition filed on 10.5.8:2. The J:!jandate

containd ins. 81 (3J enjoins that there should be no difference ~1'

-J.. -·

.. .-f

JµJENDRA SINGH v. USHA RANI (Faza1 Ali, J.) 29 •

any kind whatsoever barring some typographical \lf insignificant omissions between the petition filed and the copy served on the respondent. If an entire page is missing in the petition but it is

there in the copy served on th.e respondent, then it is manifest that 'the copy served was not an exact and true copy of the petition. The consequences of the mandatory provisions of s.81 cft could not be. . got over by praying for an ame"dment of the election petition

becaus~ that would defeat the very object and purpo; e of s. 81 (3). It is not disputed that this discrepancy between the election P'tition

and the copies served on the appellants was undoubtedly there. In these circumstances, the High Court .was wrong and committed a serious error of law in allowing the amendment of the petition. The Fj:igh Court should have tried to appreciate the tenor and spirit of the mandate contained in s.81 (3) of the Act. In the case of Sharif udDin v. Abdul Gani Lone(') this Court dismissed the . election petition only on the ground that the words "attested to be a true copy" were not signed by the election-petitioner and held that this was not a sufficient compliance with the provisions of s.89 131 of the Jammu &Xashmir Repr-esentation of the People Act, which is the same as s.81 (3) of the Act. In the instant. case, the inconsistency "is much greatethan in Sharif-ud-Din's case.

 Simllarly, in an earlier case of Satya Narain v. Dhuja Ral'f!-& Ors(')., this Court he Id as follows : -

"If there is any halt or arrest in progress of the case, the object of the Act will be completely frustrated. We are, therefore, clearly of opinion that the !'st part of section 81 (3) with which we are mainly concerned in this appeal is a peremptory provision and total non-compliance with the same will entail dismissal of the election petition under section 86 f the Act". ·

This view has ben consistently taken all through in all the decided cases of this Court so far. Reliance was, however, placed by the counsel for the respondents on the fcillo\Ving. observations of Divivedi, J., in Satya Narain's case:

(1) [1980] l SCR 1177.

, f..2) [1974] 3 SCR 20,

E ..

SUPREME COURT REPORTS

"Our decision restores that primacy of procedure over justice. It make s.86 (I) a tyrannical master. The rigidity of the rule of precedent ties me to its chains.

My only hope now. is _that Parliament would make a just choice between the social interest in the supply of c"pies by the election petitioner alongwith hiselection petition and the social interest in the. puritY of election by excluding s.81 (3) from the.purview of s.86 (I) Of the Act. . • . .

The aforesaid observatiMs express a pious wish but do not at all detract from what has been decided in thfs case and with which . the learned Judge also agreed. Despite these ob.servations, the

Parliament in its wisdom has not made any attelllpt to interfere c with 'the peremptive and rnandatOry provisions of s. 81 (3) resulting in the consequence' of d_ismissal of the petition under s.86 of the Act.

For the reasons given above,. we allow the appeals, set aside the judgment of the High Court and. dismiss the election petitions D in limine Uf!.der s.86 of the Act. In the circumstances, there will be no order as to costs.

N.Y, K.

Appeals_ al lowed.

RAJ.ENDRA SINGH & ORS. ETC

USHA RANI & ORS. ETC

February 27, 1984

S. MURTAZA FAZAL ALI

A •. VARADARAJAN

RANGANATH MISRA, JJ

People Act 1951

section 81(3)

section 81

section 81(3)

section 81(3)

section 81(3)

Section 81

section 81(3)

Section 81(3)

Parliament

section 81

section 86

[1974] 3 SCR 20

S. N. Kacker

R.L. Srivastava

Rajesh

J!. K. Verma

M.C. Bha11dare

V.K. Verma

Yogeshwar Prasad

R. Chhabra

Sujat Ullah

K. k.

Gupta

FAZAL ALI

Usha Rani

25

July 15, 1980

s. 81

Representation of the People Act

s. 86

s. 81

s. 86

s. 8I

s. 81

s. 81

s. 81

ss. 81

s. 86

s. 81

s. 537

Code of Criminal Procedure

J.P. Goyal

5. 7 .82

Representation of the People Act

Bishamb

It may be stated here that Shri Bishamb, r Nath Pandey has in the meantime been appofoted as Governor of OriSsa and has resig ned his membership of the Rajya Sabha, Therefore, as requested at the Bar, his name is deleted from the category ofappellqnts:

The main argument on behalf of the remaining appellants' was that 11 copies of the ebction petition were filed on 10.5.1982 and although the.

Sabha

s. 81

Bhandare

Faza1 Ali

81 (3J enjoins that there should be no difference ~1'
J.. -·

.. .-f

JµJENDRA SINGH v. USHA RANI (Faza1 Ali, J.) 29 •

any kind whatsoever barring some typographical \lf insignificant omissions between the petition filed and the copy served on the respondent.

s. 81

Sharif-ud-Din

section 81

section 86

Divivedi

Satya Narain

[1974] 3 SCR 20

s. 81

N.Y