S.C.R.

SUPREME COURT REPORTS

MANAK LAL v.

DR. PREM CHAND

(VENKATARAMA AYYAR, S. K. DAs and

GAJENDRAGADKAR JJ.)

Tribunal-Mefnber having bias against party-Whether tribu

~1a"t improperly constituted-Waiver--,_lf! hat amounts to-Effect of waiver-Failure to examine a witness-Witness no better than acComplice-Effect-Professional misconduct by advocate-Measure of punishment. r P filed a complaint of professiOnal misconduct against M, an advocate of the High Court of Rajasthan.

The Chief Justice appointed a tribunal under the Bar Councils Act for enquiry into the complaint.

C, a senior advocate, . was appointed chairman of the tribunal.

C had appeared once for P before the trial Court in the case out of which the complaint arose. No objection was raised as to its constitution before the tribunal.

The tribunal found M guilty of having got a false stay order in favour of his clients written by the clerk of the Court by improper means. The High Court concurred in this finding arid directed the' removal of M's name from the rolls.

It was contended on behalf of M that the tribunal was not properly constituted.

Held~ that the collstitu'.tion of thC ·tribunal suffered from a serious infirmity in that C was appointed its member and acted as its chairman.

It is well settled that every member of a tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be able to act judicially; and it is of the <:sseil.ce .of _ judicial decisions and judicial administration that judges should be able to act impartially, objectively and without

ny bias. In such ases the test is not whether in fact a . bias has affected -the judgment; the test always is and must be whether " litigant could reasonably apprehend that a bias attributable to member of_ the tribunal might have operated against him in the final decision of the tribunal.

It is in this sense that it is <>ften' aid' that.· justice must not on.ly be done but must also appeiit to be Clone. - 1

, Frome Unit<d Br<weri<J Co. ~· Bath fusticu [1926] A.'C, 586, Rex v. Sussex fustices, Ex parte Mc Carthy [1924] I K.' B. 256, Rex.''v, .Esjer fustii:h;- Er 'part'e Perkins [1927] 2 K. B.' 475, foll<>wed.

Rer v. Williams, Ex parte Phillips [ 1914] I K. B. 608, <0xplained.

The' objection 'to the constitution:' of the tr'bunai" can be waived. Waiver can be inferred from the failure of the party to

take·· the objection only if and after it is shown that the party

F1hrUarY_ 6. '

Manak LIU

Dr. Prem CAa11d

Gajendragadkar J.

kne\v about the relevant facts and was aware of his right to take the objection.

Since M kne\v that C had appcued for P and 1nust be deemed to have been conscious of his legal rights, his. failure to take the object!.on before the tribunal creates an cffectiYe bar of waiver against him.

Vyvyan v. Vyvyan (1861) 30 Eeav. 65; 54 E. R. 813 relic,! on.

Even in quasi-<:riminal proceedings all !n1portant and relevant evidence must be laid before the tribunal, but it is generally for the prosecutor to decide which witnesses are necessary for the unfolding of the case.

No aPvcrse inference can he drawn against the complainant's case for failure to exan1ine a V:itncss \vho was. no better than an accomplice.

The order of the High Court removing l\.fs name fro1n the :-oll of advocates is fully justified. The n1isconduct proved is of a very serious cfiaractcr.

Disapproval of such unworthy conduct must be expressed emphatically as the legal profession must be saved from persons who do not feel any hesitation in corruptini public officers by unworthy and illegal nicans for the benefit of their clients .

. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 246 of 1956.

Appeal by special kave from the judgment and order dated the NoYember 11, 1955, of the Rajasthan High Court in Civil Misc. Case No. 3 of 1952!. C. K. Daphtary, Solicitor-General of India, Veda Vyasa, S. K. Kapur and N. H. Hingorani, for the appellant.

H. f. Umrigar and T. M. Sen, for the respondent No. 2.

1957. February 6. The Judgment of the Court was delivered by

GAJENDRAGADKAR J.-The appellant Sri Manak Lal was an advocate practising at Sojat. A complaint was filed against him under s. 13 of the Legal Practitioners /I.ct by Dr. Prem Chand Singhvi. It was alleged that the appellant was guilty of professional misconduct and the complainant requested that suitable action be taken against him in that behalf.

Since the appellant was not a pledder OI a mukhtear but an advocate of the High Court of Rajasthan, the complaint was sent for enquiry to the tribunal nominated by the Chief Justice of the High Court of Rajasthan under s. 10(2)

of the Bar Councils Act. The tribunal held an enquiry, recorded evidence aml came to the unanimous conclusion that the appellant-"was guilty of professional misconduct in having got a false stay order written by the clerk by improper means and thereby he managed to take an illegal and undue advantage for his clients and therefore deserves to be punished for the same." When this report was received by the High Court, the matter was argued before the Court. In the result the High Court agreed with the findings made by the tribunal and directed that the appellant >hould be remO\'ed from practice. It is against this order that by Special Leave the appellant has come to this Court.

The facts giving rise to the complaint against the appellant are very few. ft appears that there was a dispute concerning Jhalra well and certain agricultural plots surrounding the well between Pukhraj and others on the one bane! and Dr. Prem Chand and others on the other. These parties were described in the saicf proceedings as Party No. 1 and Party No. 2 respectively. The appellant was the counsel for Party No. 1.

As a result of this dispute the police presented a report in the court of the Sub-Divisional Magistrate.

Sojat, that the dispute was likely to cause breach of peace

and suggested that proceedings under s. 145 of the Code of Criminal Procedure should be taken. The Sub- Division:t! Magistrate drew out a preliminary order on July 5, 1951 (Ex. A-1 ). Bv this order both the parties were called upon to put in their written statements as regards their claims to possession of the property in dispute. The learned :\fagistrate also passed an order attaching the property in dispute pemjing the decision of the proceedings umler s. 145. This was followed bv another order passed on August 9, 1951, that the crojl which was on the field shoukl be auctioned, its price deposited in court and the land itself should be given for cultivation to the: highest bidder for the next year.

It appears that the hearing of the case was fixed for August 21, 1951.

Members of Party No. 1 were aggrieved by these orders and on their behalf the appellant preferred a revision application against these orders in the court of the Sessions Judge, Pali, on August 13,

MOiia! .l.41

Dr. Pr1m Chond

GaJ1ndra,(adkar ],

Manak Lal

Dr, Prnn Chand

Gajmdragadkar J.

1951.

The appellant presented another petition before the learned Sessions Judge on August 29, 1951. In this 11etition it was alleged that rhe crop which stood on the fields in question belonged to the cultivators described as Party No. 1, that the crop was getting spoiled and that the cultivators would be consiclcrably prejuclicecl if they were dispossessed from their bnds at that stage.

On these allegations the application prayed that an order should be passed not to auction the crop as well as the right of future culti\ation and that liberty should be given to the cultivators to o to the well and to look after the crop pending the final disposal of their revision application before the learned Sessions Judge. The learned Sessions judge was not apparently inclined to grant c.r parte interim stay and '° on the same Jay he directed that notice of the revisiot1 application should be given to the other party and called upon the applicants to furnish talba11a ancl a copy of the application. The case then stoo,\ adjourned for hearing on September 6, 1951.

On September 6, 1951, \Yhcn the case w.!S called out before the learned Sessions Judge, the appellant was present. The learnccl sessions Judge found that the appellant had not submitted a copy of his application as already directed but he was told that the appellant was submitting a copy on the same day. That is why the leJrned Judge ordered that notice should be issued after the said copy was tiled. The hearing of the case was then adjourned to September 12, 1951.

So far there is no dispute about the facts. There is, however, a serious dispute as to other e\'ents which. according to the complainant. happened on September 6,

1951. The complainant's case is that, after the hearing of the case was adjourned to September 12, 1951, and notice of the application was ordered to be issued to Party No. 2, the appellant prevailed upon Shri Maghraj, clerk of the Sessions Judge's Court to prepare an actual stay order, that the said stay order was accordingly prepared and was got signed by the Reader of the Court. Then the Jppellant obtained the stay order from Shri Sheolal the despatch clerk to whoin it was entrusted by the Reader.

Armed with th.is order the appellant personally took

the order to the SulvDivisional. Magistr'!te and presented it to him the next day. In due course the revision application was taken up for hearing on September 12,

1951. Since no notice had been served on Party No. 2 the hearing was again adjourned to September 22,

1951. It is co:-nmon ground that on September 22, 1951, it was disi:overed that a fraudulent stay order had been issued from the office of the learned Sessions Judge's Court. The learned Sessions Judge then called for explanation from Shri Maghrai and directed the Sub-Divisional Magistrate to treat the letter of September 6, 1951, containing the alleged order of stay as cancelled.

Itappears that as a result of the enquiry held by the learned Sessions Judge, he found that Shri Maghraj had committed a grave mistake and held that it would be enough if Shri Maghraj was fined Rs. 11/- and , administered a severe warning to behave properly in future. The complaint against the appellant is that the appellant took_ an active part in the commission of the fraud and was thus guilty of fraudulent and grossly improper conduct in the discharge of his professional duty. A false orde1 had been obtained by him by un~ fair means and so he was guilty of professional misconduct. That in substance is the case against the appellant.

As we have already indicated, many of the facts alleged in the complaint against the appellant are not in dispute. The appellant admits that he was present before the learned Sessions Judge on September 6,

1951. It is not denied bv him that he took the envelope frotn the despatch clerk addressed to the Sub-Divisional Magistrate, Sojat, and that he in fact handed over the envelope the next day in the office of the Sub-Divisional Magistrate. His case, however, is that he never approached Shri Maghraj in this matter and that he;. was not in any way instrumental in getting the draft prepared. In fact, according to the appellant, he did not know the contents of the envelope and it was only on September 22, 1951, that he knew that a false order of stay had been issued by the office of the Sessions Judge by mistake. Before the tribunal, evidence was led by both the parties. The

Ma11ak Lal

v, Dr. P"m Chand

Gajendragadkar ].

Manak Lal

Dr. Prm1 Chand

GaJtndragadkar ].

complainant Dr. Prem Chand himself gave evidence and on his behalf Shri Maghraj and Shri Shcolal were examined. The appellant Manak Lal gal"e evidence on his behalf. Both the members of the tribunal and

the learned Judges of the High Court of Rajasthan have, on the whole, accepted the complainant's version, rejected the pleas raised by the appellant and have held. that the appellant is guilty or gross professional misconduct. It is this finding which, on the merits, is challenged before us by Shri C. K. Daphtary on behalf of the appellant.

Shri Daphtary has also raised two points of law in support of his argument that the order passed against the appellant mmt he set aside.

It will he convenient to deal with these points first.

Shri Daphtary contends that the tribunal appointed by the learned Chief Justice of the High Cour: of Rajasthan to enquire into the alleged misconduc: of the appellant was improperly constituted and all proceedings taken before the tribunal, the report made by it and the subsequent order passed by the High Court pursuant to this report are all invalid.

This point arises in this way. The tribunal consisted of three members with Shri Chhangani as its Chairman. It is common ground that Shri Chhangani had filed his vakalat on behalf of Dr. Prem Chan, l in proceedings under s. 145 of the Code of Criminal Procedure on August 23, 1952, and had in fact argued the case on that date. Shri Daphtary contends that since Shri Chhangani had appeared in the criminal proceedings in question for the opponent he was disqualified from acting as a member of the tribunal and this disqualification introduces a fatal infirmity in the constitution of the tribunal itself.

There is some force in this argument. It is well settled that every member of a tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be :1ble to act judicially; and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially, objectively ; md without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the test

• f

alwavs is and must be whether a litigant could reaso.nably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said tbat justice must not only

he done hut must also appear to be <lone.

As Viscount Cave L. C. ]w; observed in Frame United Breweries

Cu. v. Bath Justices(') "this rule has been asserted not only i11 the case of Courts of Justices ond other judicial tribunals hut in the case of authorities which, though in i1U >rnse to he called Courts, haYe to act as judges of the rights of others". In dealing with c:ises of bias attributed to members constituting tribunals, it is necessary to make a distinction between pecuniary interest and prejudice so attributed.

It is obvious that pecuniary interest, however small it may be in a <ubject-matter of the proceedings, would wholly disqualify a member from a.cting a1 a judge.

But where pecuniary interest is not :ittributell but instead a bias

i~ suggested, it often becomes necessary to consider whether there is a reasonable ground for assuming the possibility of J bias and whether it is likely to produce in the minJs of the litigant or the public at large a reasonable doubt about the fairness of the administration of justice.

It WJuld always be a question of fact to be decided in each case. ''The principle", says Halshury, "nemo debet esse judex in causa propria rna precludes a justice, who is interested in the subjectmatter of J dispute, from acting as a justice therein" ( 2 ). f11 our opinion, there is and can be no doubt about the validitv of this principle and we are prepared to assume that this principle applies not only to the justices as mentioned by Halsbury but to all tribun:ils and bodies which are given jurisdiction to determine judicially the rights of parties.

l n support of his argument, Shri Daphtary referred us tlJ the decision in Rex v. Sussex fustices, Ex parte MrCarthy( 1 ).

In this case, the Court was dealing with a case arising out of a collision between a motor

(1) [1926] A. C. 586. 590. (,) Halshury's Law• ofEngl"n<I, Vol. XXI, p. ::,35, para 932. ( :J) [ 1924] I K. ll. ,;, Ii.

Mand Lal v.

Dr. Prim ChQnC

Gaje11Jraindkar J.

Manak Lal

Dr. Prtm Chand

Gajtndragadkar J.

vehicle belonging to the applicant and one belonging ~. to W.

At the hearing of the summons the acting clerk to the justices was a member of the firm of solicitors who were acting for W in a claim for damages against the applicant for injuries received in the collision.

After the evidence was recorded the ·~ justices retired to consider their decision and the act- • ing clerk also• retired with them in case they should desire to be advised on any point of law. The applicant was convicted in the case.

This conviction was challenged by the applicant on the gwund that it was vitiated by the improper conduct of the justices in allowing the acting clerk to be associated with them .':-...{ when they deliberated about the merits of the case.

An affidavit was filed on behalf of the justices that they reached their decision without consulting the acting clerk and that the acting clerk had in fact abstained from referring to the case.

This affidavit was accepted as true by all the learned judges who heard the case and yet the conviction was quashed. "The question is", observed Lord Hewart C.J. "whether the acting clerk was so related to the case in its civil aspect as to be unfit to act as a clerk to the justices in the criminal matter" and the learned judge added that "the answer to that question depends not upon what exactly was ;>---. done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference in the course of

justice." Lush J. who agreed with Lord Hewart C.J. likewise accepted the affidavit made on behalf of the justices but observed, "that they have placed themselves in an impossible position by allowing the clerk in those circumstances to retire with them into their consultation room." The same principle was enunciated with equal emphasis in Rex v. Essex fustices, Ex parte Perkins( 1). This was a dispute between a husband and his wife and it appeared that the wife had )..-., consulted the solicitor's clerk in their office about the preparation of a deed of separation from her husband and the lawyer acted in the matter for a time after which she ceased to consuH him. No mention of

(1) [1927] 2 K.B. 475.

the matter was made to the solicitor himself except one very short reference to it in a weekly report from his clerk. Subsequently the solicitor acted as a clerk to the justices who tried the case.

He stated in his affidavit that, when acting as a clerk to the justices on the occasion in question, he had no knowledge that his firm had acted for the wife amt that he was in no way :idverse to the husband. It was urged that the decision of the justices should be set aside . as the justices were not properly constituted and it appears also to have been suggested that the decision might, perhaps, have been influenced by a prejudice though indirectly and to a very small extent. Rejecting the argument that the decision of the justices had been influenw.l even remotely by the impropriety alleged, Avary J. stated that "though the clerk to the justices and the justices did not know that his firm had acted for the applicant's wife, the necessary, or at least the reasonable, impres- , ion, on the mind of the applicant would be that justice was not done seeing that the solicitor for his wife was acting with the justices and advising them on the hearing of the summons which she had taken against him."

It has, however, been urged before us by Shri Umrigar, on behalf of the Advocate-General, that this principle should not be applied to the proceedings before the tribunal appointed under the Bar Councils Act. He contends that the tribunal is not empowered to pass final orders on the enquiry and that the report made by the tribunal is, in every case, to be submitted to the High Court for the final decision of the High Court. We are not impressed with this argument. If it is true that in judicial or quasi-judicial proceedings justice must not only be done but must appear to be done to the litigating public, it is equally true that when a lawyer is charged for professional misconduct and is given the privilege of being tried by a tribunal of the Bar Council, the enquiry before the tribunal must leave no room for a reasonable apprehension in #le mind of the lawyer that the tribunal may have

been even indirectly influenced by any bias in the mind of any of the members of the tribunal. In the present case, we have no hesitation in assuming that when

1~57

Manak Lal v.

Dr. Prem Clianct

Gajindr•gadkar J.

Maria*. Lal

Dr. Prem Chand

Gajtndragadkilr ].

Shri Chhangani agreed to work as the Chairman of the tribunal, he did not remember that he had app.:arcd against the appellant's clients in the criminal proceedings under s. 145, We are told that Shri Chhrngani is a senior member of the Bar and was once Adl'ocatcGcneral of the High Court of Rajastlun.

Besides he had not appeared in the case at all sta;:es but had appeared onlv once as a senior counsel to argue the matter. It is, therefore. not at all unlikely that Shri Chhangani had no personal contact with the client Dr. Prem Chand and mav not have been aware of the fact that, in the case from which the present proceedings arose, he had appeared at any stage f•.>r Dr. Prem Chand.

We arc, however, inclined to J, oJd that this fact does not in anv wav affect the legal argument urged before us by Shri Daphtary. It is 11ot

Shri Daphtary's case that Shri Chhangani actmlly had a bias against the appellant and that the said bias was responsible for the final report made against the appellant.

Indeed it ts unnecesson for Shri Daphtary to advance such an argument.

If Shri Chhangani was disqualified from working as a member of the tribunal by reason of the fact that he , had appeared for Dr. Prem Chand in the criminal proceedings under s. 145 in question, then it would not be necessary for Shri Daphtary to prove that any prejuclice in fact had been caused or that Shri Chhangani improperly influenced the linal decision of the tribunal.

Actual proof of prejudice in such cases may make the appellant's case stronger but such proof is not necessary in order that the appellant should effectivelv

raise the argument that the tribunal was not properly constituted.

Shri Umrigar, however, contended that unless prejudice is actually proved the cl1allenge to the validity of the constitution of the tribunal cannot he upheld and he sought to rely upon the decision in Rex v, Williams, Ex parte Phillips(') in support of this contention.

In this case the court was dealing with an application for' a writ of certiorari. A baker had been charged under .s. 4 of Bread Act of 18.36. It was

(•) [•aqJ 1 K.n. 608.

alleged .that he had sold bread otherwise than by weight and was liable to be convicted under s. 15 of the Ji.ct.

In fact he was so convicted.

Thereupon he obtained a 'rule nisi for a writ of certiorari to quash the conviction on the ground that one of the justices was a person concerned in the business of a baker.

Section 15 disqualified persons concerned in the business of a baker to act as a justice in the trial of such cases.

This application for a writ was ultimate! y rejected by the Court. The decision of the Court, however, was based substantially on two grounds.

Channel J., who delivered the principal judgment of the Court, observed that "when objection to• a comiction is taken mere! y by a member of the public and not by a party more particularly aggrieved the granting of a certiorari is discretionary. Where the objection is by a party aggrieved, then, as a rule, a writ is issued ex debito justitiae. This position, however, is subject to the exception that a party aggrieved may by his conduct preclude himself from taking objection to the jurisdiction of an inferior Court." But it is significant that the second ground on which the ' judgment proceeded clearly indicates that the justice whose presence at the hearing was challenged under s. 15 of the Act by the petitioner did not apparently appear to fall within the mischief of s: 15 of the Act at all. "I do not say", observed Channel J., "whether the facts shown would be enough to make him a person following or concerned in the business of a baker within the meaning of s. 15'.'. This conclusion was accepted by the two other learned judges.

It would thus appear that the decision in this case does not justify Shri Umrigar's contention that, even if the constitution of the tribunal is held to be defective or improper, the proceedings taken before the tribunal and the orders subsequently passed in pursuance of the report cannot be successfully challenged unless it is shown that the defective constitution of the tribunal had in fact led to the prejudice of the appellant. We would1 therefore, hold that Shri Daphtary is right when__ he contends that the constitution of the tribunal appointed by the Chief Ju•tic~ of the High Court ot

Manak Lal

Dr. Prem Chani

Gaj1ndragadkar J ..

i957

Mano.k Lc.l

Dr. Prem Chand

Gajendra, t; o.dko.r ].

Rajasthan suffered from a serious infirmity in that Shri Chhangani, who had appeared for Dr. Preen Chand in the criminal proceedings in question, was appointed a member of the tribunal and in fact acted as its Chairman.

The next question which falls to be considered is whether it was open to the appellant to take this object; on for the first time before the High Court. In other words, has he or has he not waived his objection to tlie presence of Shri Chhangani in the tribunal' Shri Daphtary does not seriously contest the position that the objection could ha\•e been effectively waived.

The alleged bias in a member of the tribunal does not render the proceedings invalid if it is shown that the objection against the presence of the member in question had not been taken by the party even though the party knew about the circumstances giving rise to the allegations about the alleged bias and was aware of his right to challenge the presence of the member in the tribunal.

It is true that waiver cannot always and in every case be inferred merely from the failure of the party to take. the objection. Waiver can be inferred only if ace! after it is shown that the party knew about the relevant facts and was aware of his right to nke the objection in question. As Sir John Romilly M. R. has observed in Vyvyan v. Vyvyan( 1 )

"waiver or acquiescence, like election, presupposes that the pcrrnn to be houncl is fully cognizant of his rights, and, that being o, he neglects to enforce them, or chooses one benefit instead of another, either, bur not both, of which he might claim". If, in the present case, it appears that the appellant knew all the facts about the alleged disability of Shri Chhangani and was also aware that he could effectively reque,.t the learned Chief Justice to nominate some other member instead of Shri Chhangani and yet did not adopt that course, it may well be that he deliberately took a chance to obtain a report in his favour from the tribunal and when he came to know that the report had gone against him he thought bettrr .of his rights and raised this point before the High 01urt for the first

(1) [1861] 30 Beav. 65, 74; :,4 E. R 813 1 81j.

1957 -f-. time. In other words, though the point of law raised by Shri Daphtary against the competence of . the tribunal be sound, it is still necessary for us to consider v.

Dr:· Pi1m Chand whether the appellant was precluded from raising this point before the High Court by waiver or acquiescence.

Gajendrag.Jkar Jo From the record it is clear that the appellant never raised this point before the tribunal and the manner in which this point was raised by him even before the High Court is somewhat significant. The first ground of objection filed by the appellant against the tribunal's report was that Shri Chhangani had pecuniary and 'r personal interest in the complainant, Dr.

Prem Chand. The learned fudges of the High Court have found that the allegations about the pecuniary interest of Shri Chhangani in the present proceedings are wholly unfounded and this finding has not been challenged before us by Shri Daphtary. The learned Judges of the High Court have also found that the objection was raised by .the appellant before them only to obtain an order fo1 a fresh enquiry and thus gain time. It may be conceded in favour of Shri Daphtary that the judgment of the High Court does not in terms find against the ' appellant on the ground of waiver though that no doubt appears to be the substance of their conclusion. We have, however, heard Shri Daphtary's case on the question of waiver and we have no hesitation in reaching the conclusion that the appellant waived his objection deliberately and cannot now be allowed to raise it. Shri Dapbtary does not contend that at the material time the appellant did not remember the fact that, . Shri

Chhangani had appeared for Dr. Prem Chand in the criminal proceedings.

Indeed suth a plea cannot be raised by the appellant in view of the affidavit which the appellant sought to place before us in the present appeal.

Under this affidavit, the appellant's case appears to be that until be met his advocate Shri Murli Manohar for filing objections to the report of the tribunal, the appellant did not know that Shri Chhangani was ·

\\'.~~\\~ di~(lu~\\fl.e.li from acting as a member of the

tribunal. .. h is obvious that this ground necessarily implies that the appellant knew:; about the facts giving

Monak Lal v.

Dr. Prnn Chand

Goj1ndragadkar J.

SL'PREME COURT REPORTS [1957]

me to the alleged disqualification of Sliri Chhangani to act as a member of the tribunal. In substance, the contention is that thotigh the appellant knew that Shri Chhangani had appeared for Dr. Prem Chand in tbe criminal proceedings in question, he \V:ls not aare that, in consequence. Shri Chhangani was disqualified to act as a member of the tribunol. It is this limited aspect of the matter which is pressed before us by Shri Daphtary. Shri Daphtary contends and no Joubt rigl1tly that if we are satisfied that the appellant did not know about the true legal position in this matter and his rights arising therefrom, his failure to challenge the appointment of Shri Chhangani on the tribunal would not raise an effective plea of waiver. However, in our opinion, it is very difficult to accept Shri Daphtary's argument that his client did not know the trne legal position or his rights until he met Shri Murli Manohar. No doubt the appellant is a junior at the Bar but e\'en so he.: can cla.in1 ten years' standing at the Bar. Resides, he had the assistance of a lawyer in defending him in the present proceedings and it appears extremely difficult to assume that neither the appellant nor his lawyer knew that the presence of Shri Chhangani in the tribunal could be effectively challenged by them.

We are disposed to think that even a layman, not famibr with legal technicalities and equitable principles on which this doctrine of disability has been based, would have immediately apprehended that the lawyer who had appeared for Dr. Prem Chand was authorised to sit in judgment over the conduct of the appellant and that might cause embarassmcnt to the appellant and might lead to prejudice against him. From a purely common sense point of view of a layman, the position was patently awkward, and so, the argument that the appellant was not conscious of his legal rights in this matter appears to us to be an afterthought. Since the appellant was driven to adopt this untenable position before the High Court in seeking to raise this point for the first time at that stage, we are not surprised that the High Court took the view that the plea had been taken late in order to gain time and to secure a fresh enquiry in

the matter. Since we have no doubt that the appellant knew the material facts and must be deemed to have bcc11 conscious .of his legal rights in that i11attcr, 11is failure to take the present plea at the earlier stage of the proceedings creates an effective bar of waiver

against him. It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point.

Then Shri Daphtary sought to challenge the main conclusion of the High Court that the appellant was guilty of professional misconduct on a preliminary ground. He contended that the High Court judgment shows that the iearnd Judges had considered some inadmissible evidence in the absence of the appellant

and without giving him an opportunity to be heard on the said evi<len:e and that had introduced an infirmity in the judgment which vitiated their final conclusions.

It appears from the judgment of the High Court that the learned Judges sent for and looked into the record of .Revision Application No. 31 of 195! in the Court of the Sessions Judge, Pali, and the record of Case No. 134 of 1951 in the Court of the Sub-Divisional Magistrate, So)at.

Shri Daphtary has made pointed reference to the fact that the record in Case No. 134 of 1951 was sent for hv the High Court after this matter had been acgucd before them. If we had been satisfied that the learned Judges of the High Court had taken into consideration material documents which were not before them at the time the case was argued before them, we would certainly have considered Shri Daphtary's grievance more seriously. We are, however, not satisfied that the grievance made by Shri Daphtary against this alleged irregularity is really justified. The High Court judgment shows that the appellant argued before the High Court that he could not have been concerned with the fabrication of the false order because his subsequent conduct showed that he was not at all interested in seeing that the said order was implemented. In fact, this argument has been characterised

8-78 S. C. Indio/59

Manak Lal v.

Dr. Prem Chan-t C::; t-- Gqfr:ndragadkar J~

I95i

MOMk Lal

Dr. Prem Chand

by the High Court as plausible but not sound. It was this argument which provoked the reply from the other side that in fact the fabricated order had been implemented and in support of this reply reference was made to the application made by Dr. Prem Chand and his men in which it had been specifically alleged that the appeibnt's clients had taken possession of the crops and that they haci aiso removed them. This application had been made on September 24, 1951, and it requested . the Sub-Divisional Magistrate to prevent the appellant's clients from taking illegal possession of the land and removing the crops.

It is these two rival contentions which the learned Judges of the High Cowt , had to examine. The judgment shows that it was substantially with a view to satisfy themselves that the application referred to by the respondent before the High Court in the course of the argument had in fact been made that the High Court subsequently called for and examined the relevant records.

It may be that in the earlier part of the judgment the learned Judges have stated somewhat generally that they had looked at the records of both the cases; but it is clear from the reasons given by the learned Judges that the perusal of the records in the said two cases had played no part in the final decision of the High Court.

We are, therefore, not satisfied that the procedure adopted by the High Court in dealing with this matter suffers from any serious irregularity as a result of which their final orders should be set aside and a fresh hearing of the matter should be ordered.

Then remains the question of the merits of the finding recorded by the High Court. Shri Daphtary himself was aware that this part of his case is bound to be weak in an appeal which has been admitted on.

Special Leave under Art. 136 of the Constitution. Both the tribunal and the High Court have made concurrent findings of fact against the appellant and it is difficult to accept the argument that this finding of fact should be re-examined on the merits by us in the present appeal.

We may, however, incidentally point out that there are some salient features of the case which unequivocally support the view taken by the High

Court against the appellant.

It is common ground that the appellant's clients were not present before the Sessions Judge on September 6, 1951. It is admitted that the appellant was present and that he to?~ . the envelope containing the order to the Sub-D1V1s10nal Magistrate. It may be that, in the State of Jodl'.pur,

lawyers practising in subordinte courts some~11:1es assisted the court officers by takmg packets contammg judicial orders from one court to another; but, if the appellant's clients were not present in the court, it is difficult to understand how the fabricated order came to be prepared without instigation by the appellant.

It is inconceivable . that officers of the court would suo motu think of fabricating the order. The order was intended to benefit the appellant's clients and, on the whole, it is an irresistible inference that the appellant must have corrupted the officers of the court by the offer of illegal consideration and induced them to fabricate the order. Shri Daphtary attempted to rely on the view taken by the learned Sessions Judge in the enquiry which he held soon after he learnt about the is, ue of this fabricated order. \V c are free to confess that \Ve are not at all satisfied with this enquiry and its final decision. However, we arc really not concernell to consider the merits of this enquiry and we cannot attach any importance to an argument based on the view taken by the learned Sessions Judge in this enquiry. The High Court has taken the view, and we think rightly, that the conduct of Shri Loya should also be examined as it is obvious that both Shri Loya and Shri Maghraj were interested in persuading the Sessions Judge to take the view that the fabrication of the order was due to a mistake committed by Shri Maghraj. The theory of a mistake committed bv Shri Maghraj is, in our opinion. wholly unreasonable, if not fantastic. The order passed by the learned Sessions Judge on September 6,

195L is clear beyond any doubt. Shri Maghraj read this order and it is suggested

that he misconstmed its effect. How an order directing notice of the application to the opponent along with a copy of the application to be served on the opponent could ever have been construed to mean an order

'95i

Manak lAl

Dr. P em Chand •-.- Ga1mdragadkar J.

M"""k IAI

Dr. Prim Chand

directing the issue of stay, it is impossible to understand.

Then again, the order actually issued is elaborate in its terrns a1H_i j:s o!.Jjcct clearly \~'a;~ o .;:equirc the Sub Divisional Magistrate to give effect to the prayers made by the appellant in his application without any delay.

Besides, the endorsement made by Shri Maghraj showing that the order had been complied with and his silence on September

I~, 1951, when the learned Sessions Judge found that notice had not been served are very eloquent. If Shri Maghraj had committed an honest mistake, he would have immediately reported to the learned Sess10ns Judge that notice had not been issued and instead erroneously an order of stay had been sent in the said proceedings. Besides, when Shri Maghraj gave evidence in the present proceedings, he did not adhere to the theory of mistake.

His present version is that he prepared the draft order at the instance of the appeilant before the case was argued and when he received it back duly signed by the Reader Shri Loya, it was given to the dcspatcher and from him it reached the hands of the appellant.

There is no doubt that Shri Maghraj is an accomplice and, so like all accomplices, he has tried to minimise the part played by him in this transaction. It is true that the evidence against the appellant is substantially circumstantial and there is no doubt that the finding against the appellant cannot be made on such circumstantial evidence unless the evidence is wholly inconsistent with his innocence and leads irresistibly to the inference of his guilt. The judgment of the High Court shows that the kar'."led judges were fully conscious of this legal position.

They have held that, having regard lo all the circumstances of the case it is impos sible to hold that the fabricated order could have come into existence and would have been despatched hurriedly without the active assistance and collaboration of the appellant.

Shri Daphtary then argued that the failure of the complainant to examine Shri Loya, the Reader, was deliberate and he suggested that adverse inference against the complainant should be drawn in conse quence. Indeed this was the only point which Shri

Daphtary placed before us seriously in regard to the merits of the finding recorded by the High Court against the appellant, It may be conceded in favour of Shri Daphtary that, even in quasi-criminal proceedings like the present, all important and relevant evidence must be laid before the tribunal; b.ut this requirement is always subject to the proviso that it is generally for the prosecutor who is in charge of the case to decide which of the witnesses are necessary for the unfolding of the case. The prosecutor no doubt must act bona fide and fairly by the court and the person against whom the proceedings have been started.

Acting bona fide, if the prosecutor takes the view that certain witnesses need not .be examined, generally the court would be reluctant to draw an adverse inference against the prosecution.

Besides, in the present case, there is no justification for drawing any such adverse inference against the complainant because Shri Loya is no better than an accomplice and it is difficult to assume that the failure of the complainant to examine an accomplice can ever give rise to an adverse inference against the complainant's case. If that be the true posi!ion, it would be idle to contend that the finding of the High Court is vitiated by reason of the fact that the High Court did not consider the effect of the complainant's failure to examine Shri Loya before the tribunal.

Incidentally this point does not appear to have been pressed before the High Court. In. the result, we have no hesitation in holding that no case has been made out for our interference with the conclusions of the High Court under Art. 136 of the Constitution.

That leaves only one point to consider and that is the correctness or the propriety of the order passed by the High Court directing the removal of the appellant's name from the roll of legal practitioners.

Shri Daphtary contends that this order is unduly severe and he has appealed to us to consider the fact that the appellant was a junior at the Rar and the removal of his name from .. the roll of legal practitioners would deprive him of the source of his livelihood. We are not impressed with this argument at all.

Unfortunatelv

195;

Mano.k Lal v.

Dr. Prem Chand

Gajmdragadkar J.

Manak I.Al

Dr. Prem Chan<!

Gajtndragadkar J.

it appears that th.is is not the first time that the appellant has come into trouble on the ground of professional misconduct.

In 1952 he was suspended for a period of two months for misappropriating some money given to him by his clients for the payment of court fee. This. is one fact which is against the appeHant. Besides, the misconduct which is proved in this cace is, in our opinion, of a very serious character.

In the administration of law and justice, lawyers have to play an important part. They are, in a sense, officers of the court and as such they are given special rights and privileges.

The profession of law enjoys high and respected status and reputation of its own and this status carries with it corresponding 01.Jligations.

Naturally the Bar must zealously safeguard the highest standards of professional morality and integrity. In fairness to the Bar, we ought to add that cases of this nature are very rare but unfortunately when such cases come before the courts, the courts must take a serious view of such reprehensible lapses and must pass deterrent orders. It is our duty to express our disapproval of such unworthy practices as emphatically as we can because the legal profession must be saved from persons who do not feel any hesitation in corrupting public officers by unworthy and illegal considerations for the temporary and immediate benefit of their clients. We must, therefore, hold that the order passed by the High Court directing the removal of the aepellant's name from the rolls is fully justified. In the result, the appeal fails and musl be dismissed with costs.

Appeal dismissed.

•f.:rp;-.i..:..s.-V-78 s. c. India/59-21-1 '-61-· l, oo.

MANAK LAL

PREM CHAND

S. K. DAs

GAJENDRAGADKAR JJ.

Manak LIU

Prem CAa11d

Gajendragadkar

Rajasthan High Court

C. K. Daphtary

Veda Vyasa

S. K. Kapur

N. H. Hingorani

H. f. Umrigar

T. M. Sen

Manak Lal

s. 13

Prem Chand Singhvi

High Court of Rajasthan

s. 10(2)

Pukhraj

Prem Chand

s. 145

Code of Criminal Procedure

July 5, 1951

s. 145

August 9, 1951

court of the Sessions Judge, Pali

m Chond

GaJ1ndra,(adkar

Gajmdragadkar

August 29, 1951

September 6, 1951

September 12, 1951

September 6,

1951

Maghraj

Sheolal

September 12,

1951

September 22,

1951

September 22, 1951

Maghrai

September 6,

Ma11ak Lal

v

P"m Chand

Manak Lal

Prem Chand

Shcolal

Manak Lal

Daphtary

Chhangani

Prem Chan

s. 145

Code of Criminal Procedure

August 23, 1952

Halshury

Halsbury

Manak Lal

Prtm Chand

Gajtndragadkar

Hewart

Lush

Avary

Umrigar

s. 145

Chhrngani

s. 145

s. 4

s. 15

Section 15

Channel

s. 15

s. 15

Prem Chani

We would1 therefore, hold that Shri Daphtary is right when he contends that the constitution of the tribunal appointed by the Chief Ju•tic~ of the High Court ot

Manak Lal

Dr. Prem Chani

Gaj1ndragadkar J ..

i957

Mano.k Lc.l

Dr. Prem Chand

Gajendra, t; o.dko.r ].

Prem Chand

Gajendra

Rajasthan

Preen Chand

John Romilly

Gajendrag.Jkar

Dapbtary

Murli Manohar

Sliri Chhangani

Murli Manohar

Court of the Sessions Judge, Pali

Sub-Divisional Magistrate, So)at.

Prem Chan

September 24, 1951

Art. 136

Loya

September 6,

195L

P em Chand

Prim Chand

Art. 136

Prem Chan


S.C.R.

SUPREME COURT REPORTS 595

PIRGONDA HONGONDA PATIL

KALGONDA SHIDGONDA PATIL AND OTHERS

(VENKATARAMA AIYAR, S.K. DAS AND

GAJENDRAGADKAR JJ.)

Amendment of Plaint-Additio11 of furthe1 and better particulars of the claim-Nature of reliefs not altered-Fresh suit on the date of amendme11t barred by limitation-Whether amendment should be allowed-Code of Civil Procedure (Act V of 1908), 0. VI, r. 17. 0. XX/, rr. 97, 99, 103.

S. obtained a decree of ejectment against the third respondent and while attempting to take possession of the properties in execution of the decree he was obstructed by the appellant and the application for removal of the obstruction was dismissed by the Court on April, 12, 1947. He thereupon filed the present suit oo• March 12, 1948, under 0. XX!, r. 103, of the Code of Civil Procedure, for a declaration that he was entitled to recover possession of the suit properties, impleading the appellant and the third respondent.

In the plaint, apart from the decree obtained in the earlier suit no particular averments were made as to the facts or grounds on which the plaintiff based his title to the suit properties as against the appellant.

Both in his application dated November 20, 1948, and in his written statement, the appellant objected to the maintainability of the suit on the grounds that he was not a party to the previous suit and that the plaint disclosed no cause of action against him.

On March 29, 1950, when the suit was taken up for trial on the preliminary issue as 10 whether the suit as framed was tenable, an application was made by the plaintiff for the amendment of the plaint by giving further and better particulars of the claim made in. the plaint.

The trial judge rejected the application . and dismissed the suit, but the High Court, on appeal, allowed the application.

The appellant appealed by special leave and contended that the application for amendment should not have . been. allowed because ( 1) on the date. of the application for amendment, the period of limitation for a suit under 0. XX!,. r .. 103, Code of Civil Procedure, had already expired, and (2) though the attention. of the plaintiff to the defect in the original plaint had been drawn as early as . November 20, 1948, no application for amendment was made till March 29, 1950.

Held, that the application . for amendment was rightly allowed by the High Court, because the amendments did not really introduce any new case nor alter the nature of the reliefs sought, and. though the application was made after the expiry of the period of limitation for a suit . under 0. XX!, r. 103, Code. of Civil Procedure, the appellant did not have to

Pir!!onda !lon.P, o'nda Patil

v /(a/gonda Xhidgondn Patil

1neet ;:i. nc\v case and he \Vas not taken by surprise; nor di<l he ha\'e co meet a ne\v ciai1n set up for the first time rtfter the expiry of the period of lin1itation.

(,'hara11 Das v .. Anzir I<han (L. R. 47 I.1\. 255), relied on.

L. /. Leach & Co. \". /ardine Skinner & Ca. ([1957] S.C.R. 438), followed.

Observaions of Batchelor J. in Kisandas Rttpchand \'.

Rachappa Vithoba (I.L.R. 33 Barn. 644, 649), approved.

CIVIL

APPELLATE

JURISD!CTION : Civil Appeal No. 228 of 1953.

Appeal by special leave from the Judgment and Decree dated September 6, 1951, of the Bomboy High Court in Appeal No. 1% of 1950 from the Judgment and Decree dated March 31, 1950, of the Civil Judge, Senior Division, Kolhapur in Civil Suit No. 23 of 1949.

S. C. Isaacs, S. N. Andlev, R.ameshll•m Nath ai:d /. B. Dadachanji, for the ap1; ellant.

Achhru Ram, G. A. De."1i am! Natmit Lai, for respondents Nos. 1 and 2.

1957. February 7.

The Judgment of the Court was delivered by

S. K. DAs J .-This is an appeal by special leave from the judgment and decree of the High Court of Bombay dated Septemher 6, 1951, by which the said High Court set aside. on appeal the decree passed by the Civil Judge (Senior Division) Koibapur, in Civil Suit No. 25/49 and allowed an amendment of the pbnt at the appellate sr:1ge, subject ro ccrtam conditions. in the circumstances stated belov./.

1"'he appeflant before us \.Vas defendant No. 1 in the suit.

Respondent:; 1 and 2 arl: the heirs of the original plaintiff anci respondent No. 3 was defendant No. 2 in the action.

In 1942 the origiml plaintiff filed a suit againot respondent No. 3 for posscss1011 of the suit properties and obtained a decree in ejcctmcnt on March 28, 1944.

This decree was confirmed in appeal on July 9, 1945.

U1• a further appeal, the then Supreme Court of Kolbpur affirmed the decree on April 2, 1946.

In the meantime, the original plaintiff made an application for execution of the decree but was resisted or •

obstructed by the present appellant in obtaining possession of the said properties.

He then made an application under O. XXI, r. 97 of the Code of Civil Procedure, complaining of such resistance or obstruction.

This application was heard and dismissed . under

0. XXI, r. 99 of the Code of Civil Procedure, on April 12, 1947.

On March 12, 1948, the original plaintiff instituted the suit (out of which this appeal has arisen) under 0. XXI, r. 103 of the Code of Civil Procedure, for a declaration that he was entitled to recover possession of the suit properties from the present appellant who was impleaded as the first . defendant.

Prior to its amendment, the plaint stated : "Defenddant No. 2 in collusion with defendant No. 1 caused objection to be submitted against the said execution.

The plaintiff had conducted Misc.

Suit No. 5/1946 for getting possession of the suit properties, getting the objection removed.

However, that miscellaneous . proceeding has been decided against the plaintiff.

Therefore, the plaintiff has filed the present suit for getting declared that the plaintiff has right to take possession of the suit property against defendants Nos. 1 and 2:" Apart from the decree obtained in the eailier suit, no particular averments were made as to the facts or grounds on which the plaintiff based his title to the properties in suit as against the appellant.

An application was made on behalf of the present appellant on November 20, 1948, in which it was pointed out that the plaintiff filed the suit on the basis of the decision in an earlier suit to which the present appellant was not a party.

It was then stated : "As the defendant is not a party in the said decree, the plaintiff will not acquire any ownership whatever against the defendant from the said decree.

And the plaintiff has not given even the slightest explanation as to how he has ownership against the defendant. So permission should not be hereafter given to the plaintiff to make amendment in respect of showing ownership".

A copy of this application was made over to the learned pleader for the plaintiff who noted thereon as follows : "The plaintiff's suit is under 0. XXI, r. 103 of the Code of Civil Procedure. Hence relief which can be

Pirgonda Hongonda Patil

"· Kaigotida ShidgonJa Pali.

S. K. Das].

Pirgonda

Hc11onfln Patil v.

II... lg nda Shidgo11da Patil

S. J:. I>as ].

granted as per this provision may be granted." An objection was also taken with regard to the description of the suit properties in the schedule.

This objection was however met by making the necessary amendment.

On December 20, 1949, the present appellant filed his written statement and, inter alia, took the objection that the suit was not maintainable against him, as the plaint disclosed no cause of action so far as he was concerned.

A preliminary issue was then struck on January 19, 1950, which raised the question whether the suit as framed was tenable. against the appellant.

When the trial of this issue began, an application was made on March 29, 1950, on behalf of the original plaintiff for permission to give further and better particulars of the claim made in the plaint, an<l for that purpose the plaintiff wanted to insert a new paragraph as para !(a) in the plaint and a few sentences in para 3.

It is necessary to quote these here, because these were the amendments subsequently allowed by the learned Judges of the High Court of Bombay by their order dated September 6, 1951.

The new paragraph was m these terms : "In the Ichalkaranii village there are two independent Patil families 'taxima', viz., Mulki (Revenue) Patil and Police Patil.

The suit properties are the lnam lands in the Police Patil family.

A woman by name Bhagirathibai, wife of Shivagonda Patil, was the Navwali 'warchi Vatandar' (representative Vatandar) of the Police Patil family.

This woman died in the year 1936.

Due to the death of the woman the plaintiff acquired heirship-ownership over the suit property as the near heir.

The suit properties were in the possession and under the vahiwat of defendant No. 2 without right.

Therefore., the plaintiff filed Suit No. 3/1942 for getting declared his ownership of the suit property and for getting the possession thereof.

In Appeal No. 9/44 and Supreme Appeal No. 5/46 preferred therefrom the plaintiff was unanimously declared to be the heir and the owner and the possession of the suit properties had been granted to the plaintiff." The sentences to he added to paragraph 3 were : "Defendant No. 1 is from the Mulki

(Revenue) Patil family.

He has nothing to do with the suit property in the Police Patil family."

Ry his order dated March 31,

1Q50, the learned Civil Turlge reiected the application and on the same day he dismissed the suit on the ground that the plaint made out no case of title against defendant No. l, appellant before us, who was not a party to the earlier suit in eicctmcnt in which the plaintiff had obtained a decree against defendant No. 2.

From this judgment and decree of the learned Civil Judge an appeal was taken to the High Court of Bombay and the learned Judges of the High Court allowed an amendment of the pbint after putting the plaintiff on terms as to costs, etc.

While allowing the amendment the learned Judges observed: "\Ve realise that by doing what we propose to do , we may deprive the first defendant of a verv valuable right which he daims he bas acquired, namely, that of pleading a bar of limitation against the amended plaint, but we , ire guided more in this matter by rc.:gard to the principles of substantial justice and we think that if we can make sufficient compensation to the first defend:mt by making drastic orders of costs in his favour and against the plaintiff, we shall not be doing any injustice to him.

This is, after all, a question of title to the property and we would be justifird 111 making this obscnation that when the suit in ejectment was filed by Shidgonda against Pirgonda Annappa in the year 1942 he based it on his title to the suit property and it was onlv against Pirgonda Annappa that he had obtained the decree. \Vhrn this decree which he had obtained agamst Pirgonda Annappa, the second defendant, was mentioned as a starting point in the plaint as it came to be filed, it would not be stretching too much of a point in favour of the plaintiff to observe 'that the dc.:cree which he had obtainc.:d against the second defendant, having been obtained on the strength of his title to the suit property, was really one of his documents of title. . . . . . . . . . . . . . . So far as the first defendant was concerned, the averment nece; sary under 0. XXI, r. 103, of the Cod~ of Civil Procedure, was that the first defendant was wrongfully obstructing

Pir, onda l-]ongunJa Pat:l

Kalgonda S!iidgonda Patil

S. K. Da,].

Pirgonda Hongonda Patil

Kalganda Shidganda Patil

S.K. Da; J.

the plaintiff from obtaining possession of the suit property in execution of the decree which he had obtained against the 2nd defendant in a suit regularly constituted in that behalf.

This being the position, we think we are not doing any injustice to the first defendant if we allow the plaintiff to amend his plaint even at this late stage by putting in the paragraphs in the plaint as suggested by him in his application for further and better particulars filed in March 1950."

The appellant then obtained special leave from this Court, and filed the present appeal.

The m:iin point which has been argued before us on behalf of the appellant is that in the circumstances of this case the learned Judges of the High Court were wrong in allowing an amendment of the plaint at such a late stage.

It may be stated here th:it learned counsel for the appellant did not argue that the appellate Court had no jurisdiction or power to allow the amendment.

His submission was that even though the appellate Court had such power or jurisdiction, that power should not have been exercised in the circumstances of the present case.

Two such circumstances were greatly emphasised before us.

One was that the period of limitation for a suit under 0. XXI, r. 103, of the Code of Civil Procedure, had already expired before March 29, 1950, on which date the application for amendment or for giving further and better particulars was made.

The second circumstance which learned counsel for the appellant emphasised was that the attention of the plaintiff to the defect in the original plaint had been drawn by the application filed on behalf of the appellant on November 20, 1948, and in spite of that application, no amendment was asked for till March 29, 1950.

Both these circumstances were fully considered by the learned Judges of the High Court. It is worthy of note that the period of limitation for a suit under

0. XXI, r. 103 of the Code of Civil Procedure, namely, one year from the date of the adverse order made under r. 99 of 0. XXI, had expired some time before November 20, 1948, on which date the appellant made

his first application pomtmg out the defect in the plaint, the adverse order under 0. XXI, r. 99, having been made on April 12, 1947.

The application which the appellant made on November 20, 1948, had not the merit of such beneficent purpose as is now sought to be made out by learned counsel for the appellant.

When the application was made, the period of limitation had already expired, and the appellant very clearly said that no permission should be given to the plaintiff to make an amendment thereafter.

We do not therefore think that the appellant can make much capital out of the application made on his behalf on November 20, 1948.

Recently, we have had occasion to consider a similar prayer for amendment in L. f. Leach & Co. v. Jardine Skinner & Co. ( 1) where, in allowing an amendment of the plaint in an appeal before us, we said : "It is no doubt true that courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application.

But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it, if that is required in the interests of justice." These observations were made in a case where damages were originally claimed on the footing of conversion of goods.

We held, in agreement with the learned Judges of the High Court, that on the evidence the claim for damages on the footing of conversion must fail.

The plaintiffs then applied to this Court for amendment of the plaint by raising, in the alternative, a claim for damages for breach of contract for non-delivery of the goods.

The application was resisted by the respondents and one of the grounds of resistance was that the period of limitation had expired.

We accepted as correct the decision in Charan Das v. Amir Khan (2) which laid down that "though there was full power to make the amendment, such a power should not as a rule be exercised where the effect was to take away from a defendant a legal right which had accrued to him by

(1) [1957) S.C.R. 438.

(2) (1920) L.R. 47 I.A. 255.

Pirgonda Hon&imda Patil v.

KaJgonda Shidgonda Patil

S. K.Das].

Pirgotlda Hongonda Patil v.

Kalgoruta Shidgonda Patil

S. K. Das].

lapse of time ; derations were of the case".

yet there were outweighed by cases where such consithe special circumstances

, As pointed out in Charan Das' case (1 ), the power exercised was undoubtedlv one within the discretion of the learned Judges.

All that can be urged is that the discretion was exercised on a wrong principle.

We do not think that it was so exercised in the present case.

The facts of the present case are very similar to those of the case before their Lordships of the Privy Council.

In the latter, the respondents sued for a declaration of their right of pre-emption over certain land, a form of suit which would not lie having regard to the proviso to s. 42 of the Specific Relief Act (I of 1877).

The trial Judge and the first appellate Court refused to allow the plaint to be amended by claiming possession on pre-emption, since the time had expired for bringing a suit to enforce the right.

Upon a second appeal the Court allowed the amendment to be made, there being no ground for suspecting that the plaintiffs had not acted in good faith, and the proposed amendment not altering the nature of the relief sought.

In the case before us, there was a similar defect in the plaint, and the trial Judge refused to allow the plaint to be amended on the ground that the period of limitation for a suit under 0. XX!, r, 103, of the Code of Civil Procedure, had expired.

The learned Judges of the High Court rightly pointed out that the mistake in the trial Court was more that of the learned pleader and the proposed amendment did not alter the nature of the reliefs sought.

Learned counsel for the appellant referred us to the decision in Kisandas Rupchand v. Rachappa Vithoba (') and pbce<l great reliance on the observations of Beaman J. at p. 655: "In my op1mon, two simple tests, and two only, need to be applied,- in order to ascertain whether a given case is within the principle.

First, could the party asking to amend obtain the same quantity of relief without the amendment ? If not, then it follows necessarily that the proposed amendment places the other party at a disadvantage,

(•i [•920] L.R. 47 I.A. 255.

(2) [•900] LL.R. 33 Bom. 644.

it allows his opponent to obtain more from him than he would have been able to obtain but for die amendment.

Second, in those circumstances, can the party thus placed at a disadvantage be compensated for it by costs ? If not, then the amendment ought not, unless the case is so peculiar as to be taken out of the scope of the rule, to be allowed." He contended that the first test laid down in the aforesaid observations was not fulfilled in the present case.

We do not agree with this contention.

First, it is not feasible nor advisable to encase a discretionary power within the strait jacket of an inflexible formula.

Secondly, we do not think that the "quantity of relief," an expression somewhat difficult of appreciation or application in all circumstances, was in any way affected by the amendments allowed to be made in this case. what happe'ned in the present case was that there was a defect in the plaint which stood in the way of the plaintiff asking for the reliefs he asked for ; that defect was removed by the amendments.

The quality and quantity of the reltfs sought remained the same ; whether the reliefs should be granted or not is a different matter as to which we are not called upon to express any opini)n at this stage.

We think that the correct principks were enunciated by Batchelor J. in hi' judgment in the same case, viz., Kisandas Rupchand's case ( 1 ), when he said at pp. 649-650: "All amendments ought to be allowed which satisfy the two conditions

(a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions i11 controversy between the parties .......... but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendments should be refused only where the other party c; rnnot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.

It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in

(1) [1900] l.L.R. 33 Born. 6H.

Pirgonda Jlongonda Patil v.

Kalgonda Shidgonrfa Patil

S. K. Das].

Pirgondo Hongonda Patil

Kalgo11da Shid.1!, onda Patil

S. 1-.. Dns }.

respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused ; to allow it would be to cause the defendant an injury which could not be compensated in costs by dcpri ving him of a good defence to the claim.

The ultimate test therefore still remains the sa111c : can tl1c a111endment be allowed vvithout injustice to t11e ot!1er side, or can it not?" Batchelor J. made thccc observations in a case where the claim was for dissolution of partnership and J.ccounts, the plaintiffs alleging th:it in pursuance of a p:irtnership agreement they h:'d delivered Rs. 4,001 worth of cloth to the defendants.

The Subordinate judge found that the plaintiffs did deliver the cloth, but came to the C0'1c!usion that no partnership was created.

At the ap1dlate stage, the plaint.iffs abandoned the plea of partnershi!' and prayed for leave to amend by adding a prayer for the recovery of Rs. 4,001.

At that d::te the claim for the money was barred by limitation.

It was held that the amendment was rightly allowed, as the claim was not a new claim.

The same principles, we hold, should apply in the present case. The mendments do not really introduce a new case, and the application filed by the appellant himself showed that he was not taken by surprise ; nor did he have to meet a 11etu claim set up for the first time after the expiry of the period of limitation.

For these reasons, vve sec no merit in the appeal, which is accordingly dismissed with costs.

Appeal dismissed.

595

PIRGONDA HONGONDA PATIL

KALGONDA SHIDGONDA PATIL AND OTHERS

S.K. DAS

GAJENDRAGADKAR JJ.

Code of Civil Procedure

April, 12, 1947

March 12, 1948

the Code of Civil Procedure

November 20, 1948

March 29, 1950

Code of Civil Procedure

Batchelor

S. C. Isaacs

S. N. Andlev

R.ameshll•m Nath

B. Dadachanji

Achhru Ram

S. K. DAs

High Court of Bombay

March 28, 1944

July 9, 1945

Supreme Court of Kolbpur

April 2, 1946

the Code of Civil Procedure

the Code of Civil Procedure

April 12, 1947

the Code of Civil Procedure

the Code of Civil Procedure

S. K. Das

December 20, 1949

January 19, 1950

September 6, 1951

Ichalkaranii village

Bhagirathibai

Shivagonda Patil

March 31,

1Q50

Shidgonda

Pirgonda Annappa

S. K. Da

Kalganda Shidganda Patil

S.K. Da

the Code of Civil Procedure

the Code of Civil Procedure

(1920) L.R. 47 I.A. 255

Charan Das

s. 42

Specific Relief Act

the Code of Civil Procedure

Beaman

L.R. 47 I.A. 255

Kisandas Rupchand

Pirgondo Hongonda Patil

S. 1