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SITARAM MOTILAL KALAL

SANTANUPRASAD JAISHANKAR BHATT

February 8, 1966

{K. SUBBA RAO, M. HIDAYATULLAH AND R. S. BACHAWAT, JJ.]

Tort-Vicarious liability.

The owner of a vehicle entrusted it to A for plying as a taxi. A drove the taxi, collected the fares, met the expenditure and handed the balance with accounts to the owner.

B who used to clean the taxi was either employed by the owner or on ht. behalf by A. Presumably because A wanted another to assist him in dr; ving the I.Xi he trained B to drive the vehicle and took B for obtaining a licence for driving. While taking the test B caused bodily injury to the respondent. At the time of the accident, A was not present !n the vehicle. On the question whether the owner waa liable,

HELD : (Per Hidayatullah and Bachawatt, JJ.) The owner was not liable.

There is a presumption that a vehicle is driven on the master's business and by his authorised agent or servant but the presumption can be met It was negatived in this case.

The acts of A and B v:ewed separately or collectively were not within the scope of their respective or even joint employment. The evidence did not disclose that the owner had employ

ed B to drive the taxi or given him permission ro drive the taxi or had asked him to take test for obtaining a driving licence; nor did it disclose that that the owner had given any authority to A to employ strangers to drive the taxi or to take the driving test. A was not present in the vehicle so that he could be said to be in control on behalf of his employer when the vehicle was driven. [537 H; 540 D; 542 F} For the master's liability to arise, the act must be a wrongful act authorised by the master or a wrongful and unauthorised mode of doing some act authorised by the master.

The driver of a car takins the car on the master's busfness makes him vicariously liable if he commits an accident.

But it is equally well-settled that if the servant, at the time of the accident, is not acting within the course of his employment but is doing something for himself the master is not liable. [537 G]

Rule in Storey v. Aston, (1868-69) 4 Q.B.D. 476, by Cockburn C.J., applied.

Case law referred to.

Ao. agent could make the principal liable only for acts done within the scope of the agent's authority or under the actual control of the principal. The extension of the doctrine that the act of the servant or the agent must be for the master's benefit, is not correct.~ It is doubtfu1 whether the principle can be extended by the introduction of the doctrine

of implied authority. [540 G]

Smith \", Martin, [1911) 2 K.B. 775 and Barwick Y. English Joint Stock Bank, (1867) L.R. 2. Ex. 259, doubted.

Per (Subba Rao, J. dissenting) : The owner waa liable.

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A was not a mere driver of the vehicle hut was the qWner's manager to carry on the business of running his taxi.

A was, therefore, given the authority to do all things, necessary to keep the taxi in a good conditi"1' and to run it effectively, and if for plying the tlXi throughout day and night and during the absence of A an assistant was necessary to drive the vehicle, A could employ one. A employed B with the approval of tho owner to keep the vehicle in good condition.

A in the interest of the employer instead of engaging a third party. as an assistant driver trained B as such and sought to obtain a licence for him.

Therefore, A did not exceed the authority concrrcci on him by the owner in employing B as a servant and permitting him to drive the vehicle in order to obtain a licence for nssistin~ htm as a driver.

[533 E-H]

Case law referred to.

Crv1L APPELLATE JuRJSDICTION: Civil Appeal No. 615 of 1963.

A peal from the judgment and decree dated April 5, 1957 of the Bombay High Court in First Appeal No. 260 of 1952.

M. V. Goswami, for the appellant.

S. N. Prasad, J.B. Dadaclianji, 0. C. Mathur and Rani1der Narain, for the respondent.

SUBDA RAO, J. delivered a dissenting Opinion. The Judgment of HIDAYATULLAH and BACHA WAT, J.J.-was delivered by HIDAYAT-

ULLAH, J.

Sobba Rao, J. T regret my inability to agree.

Sitararn Motilal Kalal, hereinafter called the !st defendant i& i, n agriculturist ha".ing lands at Kathwada village. He owned a motor-car bearin~ registration No. BYD 316.

He entrusted the said car to Mohmmed Yakub Haji, herinafter called the 2nd defendant, for plying the same as, a taxi in Ahmedabad. The 2nd defendant ran the taxi, collected the fare, met the expenditure incurred connection with the said service, rendered account to the I st defendant and remitted the balance to him. In short, the 2nd defendant was not merely the driver of the taxi but he was also in entire charge of plying the taxi in Ahmedabad. The 2nd defendant appointed the 3rd defendant as a cleaner for the taxi.

Presumably because the 2nd defendant wanted another to assist him in driving the car during his absence from the city, he trained the 3rd defendant to drive the car and on April 11, 1940, the 2nd defendant took the 3rd defendant to the Regional Transport Authority for obtaining a licence for him.

On thl!t date a test was being ' condudoo by the Regional Transport Officer on the capacity of the 3rd defendam to drive a car for the purpose of issuing to him a permanent licence for driving. At about 5 p.m. on that day, the plaintiff, wh:i is a pleader practising in the courLS of the district of Ahmedabad, was going out of the compound of the office of the Regional Transport Authority. At that time, the 3rd defendant was driving the car towards Lal Darwaja side; without giving any

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s. M. KALAL v. s. J. BHATT (Subba Rao, J.) 529

signal, he took a sudden turn towards the gate of the Office of the Regional Transport Authority, accelerated the speed and dashed the car with great force against the pillar of the gate of th"e saicj office. In that process, the plaintiff's leg was pinned between the compound wall and the gate, with the result it was crushed and later on amputated. After recovering from a long illness, the plaintiff filed a suit, being Special Suit No. 66 of 1950, in the Court of the Civil Judge, Ahmedabad, for recovery of damages in a sum of Rs. 80,000 from defendants I, 2 and 3 and the 4th defendant, the Indian Globe Insurance Company, Limited, with whom the said car was insured. All the defendants denied their liability.

The learned Civil Judge held that the 3rd defendant was negligent in driving the taxi, that he was the servant of the 2nd defendant and not of the I st defendant, and that even if he was the servant of the !st defendant as a cleaner of the car, he did not act within the scope of his authority when he drove the car and caused the accident. In the result, he gave a decree against defendants 2 and 3 in a sum of Rs. 20,000 and dismissed the suit against the !st defendant; he also dismissed the suit against the 4th defendant, as the 1st defendant, who insured the car, was exonerated from liability.

Against the said judgment and decree the plaintiff preferred an appeal to the High Court of Bombay in so far as the decree went against him. A Division Bench of the said High Court came to the conclusion that the entire managment of the car was given to the 2nd defendant, that in discharge of his duty as such manager he appointed the 3rd defendant with the consent of the !st defendant and that by clearest implication the !st defendant, in the circumstances of the case, must be regarded as having authorised the act of the 2nd defendant in training the 3rd defendant as a car-driver and that, therefore, he would be liable in damages for the accident caused by the negligence of the 2nd and 3rd defendants in the course of their employment. So far as the 4th defendant was concerned, the High Court held that in view of s. 96(1) of the Motor Vehicles Act, 1939, no decree could be directly passed against it, but the decree against the !st defendant could be executed against it in terms of the said section. It raised the quantum of damages from Rs. 20,000 to Rs. 25,000. The suit was decreed in favour of the plaintiff against defendants 1, 2 and 3 with costs.

The I st defendant, by certificate, has preferred the present appeal.

Mr. M. V. Goswami, learned counsel for the !st defendantappellant, contended that the findings of the High Court that the 3rd defendant, the cleaner, was the servant of the !st defendant and that the 2nd defendant was authorised to secure a licence for the cleaner to drive the car were vitiated by its reliance on two pieces of inadmissible evidence, namely, the alleged admissions found in the 3rd defendant's written-statement and in the reply

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notice given by him to that issued to him on behalf of the plaintiff.

He further contended that the !st defendant could not be made liable for the acts of either the 2nd defendant or the 3rd defendant committed outside the scope of their employment.

Mr. Pcrshad, learned counsel for the respondent, though at first made an attempt to sustain the admissibility of the said two pieces of evidence, later on clearly conceded that they could not be relied upon against the I st defendant.

But, he contended that even after the exclusion of the said two pieces of evidence, on the remaining evidence, the circumstances established and the probabilities arising therefrom it could be held, as the High Court did. that the 3rd defendant was the servant of the !st defendant, that the 2nd defendant was authorised by the !st defendant to train the 3rd defendant as a driver and get a licence for him so that he might assist him in driving the car during his absence, that the accident took place during the course of the employment of the 3rd defendant by the !st defendant and that, therefore, the !st defendant wa-; liable in damages for the accident. That apart, he further argued that the 2nd defendant in discharge of his duty in the course of his employment negligently entrusted the car to the 3rd defendant for the purpose of assisting him in the discharge of his duty and, therefore, the !st defendant would be liable for the accident.

Before we consider the problem presented to us, it will be useful to notice briefly the relevant aspects of the law of torts vis-avis the liability of a owner of a car for the acts of his driver.

The doctrine of constructive liability is in a process of evolution.

It is a great principle of social justice. A court no longer need be overweighed with the old decisions on the subject given under radically different circumstances, for now the owner of a car in India is not burdened with an unpredictable liability as there is a statutory compulsion on him to insure his car against third-party F liability and his burden within the framework of the Motor Vehicles Act is now transferred to the insurer.

The general principle is well settled and it is neatly given by Pearson, L. J .• in Norton v. Canadian Pacific Steamships. Ltd.( 1 J thus:

'"The owner of a c; u, when he takes or sends it on a journey for his own purposes, owes a duty of care to other road users, and if any of them suffers damage from negligent drivin11: of the car, whether by the owner himself or by an agent lo whom th" had delegated the driving, the owner is liable."

The limitation on this principle has been succinctly stated by H Cockburn, C. J., in Storey v. Ashton(2) thus :

tO l196112All ~.R. 785, 790.

(2) (l868-69] I .R. 4 Q.B. 476, 479.

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"The true rule is that the master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment as servant." A valuable test to ascertain whether a servant was negligent or not is found in Ricketts v. Thos. Tilling, Limited.(') There the facts were : the conductor of an omnibus belonging to the defendants, in the presence of the driver, who was seated beside him, for the purpose of turning the omnibus in the right direction for the next journey, drove it through some by-streets so negligently that it mounted the foot pavement and knocked down and seriously injured the plaintiff. The Court of Appeal held that there was evidence of negligence on the part of the driver in allowing the omnibus to be negligently driven by the conductor. In so holding, Buckley, L. J., laid down the following test :

"lt is a question for the jury whether the effective cause of the accident was that the driver committed a breach of his duty (which was either to prevent another person from driving or, if he allowed him to drive, to see that he drove properly), or whether the driver had discharged that duty."

Pickford, L. J., said much to the same effect thus : "Jt seems to me that the fact that he allowed somebody else to drive does not divest him of the responsibility and duty he has towards his masters to see that the omnibus is carefully, and not negligently, driven." This decision followed the decision in En.vi,, hart v. Farrant.(2) There, the facts were : A man was employed by the defendants to drive a cart by which delivery was to be made of parcels. The cart was manned by a man and a boy. The man's duty was to drive; the boy's duty was to deliver the parcels.

The boy had nothing to do wit.h the horses. The man's instructions were not to leave the cart. The driver did in fact leave the cart, and while he was absent the lad drove on and came into collision with the pllj.intiff's carriage and injured it. The question was whether the defendant was liable. Lord Esher, M. R., in his judgment posed the question to be decided thus : "Now, for what is the defendant liable ?"and answered it as follows :

"He is liable for the negligence of Mears (that was the driver) if that negligence was "an effective cause' of the subsequent damage to the plaintiff." Then lower down the learned Judge said :

"If a stranger interferes (with the driving) it does not follow that the defendant is liable; but equally it does not

(1) L.R. [1915] 1 K.B. 644, 646, 65J.

(2) [1897] - Q.B. 240.

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follow that because a stranger interferes, the defendant is not liable if the negligence of a servant of his is an clfectivc cause of the accident."

The said decisions lay down the following two propositions : (I) An owner of a car would be liable in damages for an accident caused by his servant in the course of his employment; and (2) he would also be liable if the effective cause of the accident was that the driver in the course of his employment committed a breach of his duty in either not preventing another person from driving the car or neglecting to see that the said person drove it properly. We me not concerned in this case with accidents caused by a driver or a third party outside the scope of the employment, for in this case whether the 3rd defendant was authorised to drive the car by the 1st defendant or not the accident was caused when the car was being driven for the purpose of efficiently plying the taxi for hire for which the 2nd defendant was employed by the 1st defendant.

Before considering the evidence in this case, at the outset some controversial ground may be cleared. The High Court relied upon the admissions made by the 3rd defendant in his writtenstatement and the reply given by him to the plaintiff as evidence against the !st defendant. As I have indicated earlier, learned counsel for the respondent fairly conceded that those pieces of evidence could not be relied upon as admissions against the 1st defendant. Indeed, the High Court, though it accepted the said two

pieces of evidence, alternatively came to the same finding after excluding them from evidence. For the purpose of this judgment I am assuming that the said pieces of evidence are not relevant against the 1st defendant. Therefore, I will exclude the same from my consideration.

Now let me take the case of the 3rd defendant and ascertain his legal relationship with the !st defendant. The Isl defendant was examined as D.W. I. He deposed as follows : He had agricultural land> in Kathwada which he was personally cultivating and he resided at Kathwada; a year and a half before April 11,

1949, he had given his car to the 2nd defendant for plying the same as a taxi; the 2nd defendant had to manage it and he had full control over it; the 2nd defendant paid taxes for the car, spent for petrol, kept the said car always at the railway station stand, rendered accounts for the income he got from plying the said taxi whenever the 1st defendant went to Ahmedabad from Kathwada and met him; the 2nd defendant was paid Rs. 90 p.m. He admitted in the cross-examination that the 2nd defendant was a straightforward and honest man, that he managed the taxi on his behalf, that upto May 1949 he did not go beyond his instn:tions, that the car wa-' plying for hire during day and night and that there were no fixed hours of service. He further stated that he entrusted the 2nd

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s. M. KALAL v. s. J. BHATT (Subba Rao, J.) 533

defendant with the duty of purchasing materials from Bombay.

This witness no doubt denied that he had authorised the 2nd defendant to engage the 3rd defendant or permitted the 2nd defendant to teach the 3rd defendant car-driving. He also denied that there was debit of Rs. 30 as pay of the 3rd defendant in the accounts submitted to him by the 2nd defendant.

But the accounts were not produced; and, therefore, an inference should be drawn against him to the effect that if they were produced they would show that a salary of Rs. 30 was paid to the 3rd defenant and he was the servant of the !st defendant.

The plaintiff was examined as P. W. I. He deposed that the 3rd defendant was the cleaner of the car and that he had personally seen the 3rd defendant cleaning the car in question. The evidence of this witness so far as he said that he had seen the 3rd defendant cleaning the car could be accepted particularly when it is consistent with the probabilities of the case.

From the said facts it can reasonably be held that the 2nd defendant appointed the 3rd defendant as cleaner of the car, trained him as a driver and on the day of the accident took him to the office of the Regional Transport Authority and permitted him to drive the car to obtain a permanent licence for him.

On the said evidence and the probabilities arising therefrom the following inference can reasonably be drawn: The 1st defendant, being the absentee owner of the car used as taxi, entrusted the entire management of running the said car as taxi to the 2nd defendant. The 2nd defendant was not a mere driver of the I st defendant's car, but was his manager to carry on the business of running his taxi. The 2nd defendant was, therefore, given the authority to do all things necessary to keep the taxi in a good condition and to run it effectively to earn profit. It is also implicit in the said arrangement that if for plying the taxi throughout day and night and during the absence of the 2nd defendant from the city an assistant was necessary to drive the car, the 2nd defendant could employ one. The 2nd defendant employed the 3rd defendant as a cleaner with the approval of the 1st defendant to keep the car in good condition. In that context, if the 2nd defendant in the interest of the employer, instead of engaging a third party as an assistant driver trained the 3rd defendant as such and sought to obtain a licence for him, it is not possible to suggest that the 2nd defendant in doing so exceeded the authority conferred on him by the 1st defendant. I, therefore, find that the 2nd defendant did not exceed the authority conferred on him by the 1st defendant in employing the 3rd defendant as a servant and permitting him to drive the car in order to obtain a licence for assisting him as a driver, If so, it follows that the 3rd defendant was the employee of the 1st defendant in his capacity as an assistant to the driver. In that

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the 1st defendant would certainly be liable in damages for the accident caused by the 3rd defendant's negligence during the course of his employment.

Though I am prima facie inclined to accept the second proposition also as correct and that the 2nd defendant's negligence in permitting the third defendant to drive the car was the effective cause of the accident, in view of my first finding it is not necessary to express my final opinion thereon.

Now let me turn to the other decisions cited at the Bar. The decision of the Court of Appeal in Donovan v. laing. Wharton, and Down Construction Syndicate, Ltd.(1) deals with a case where, though the man in charge of a crane in the working whereof an accident was caused was the general servant of the defendants, they had parted with the power of controlling him with regard to the matter on which he was engaged. They had lent to a firm which was engaged in loading a ship at their wharf the crane with a man in charge of it.

It is, therefore, a case where when the accident took place the man, who was operating the crane, was not the servant of the defendants.

In Britt v. Galmoye and Nevil/(2) the first defendant, who had the 2nd defendant in his employment as a van driver, lent him his private car after the day's work was finished to take friends to a theatre and the 2nd defendant by his negligent driving injured the plaintiff. It was held that the journey was not on the master's business and the master was not in control and, therefore, he was not liable for the servant's act. The principle of this decision is that a owner of a car will not be liable for the accident caused by his employee if it was caused outside the master's employment.

The decision in Giriiashankar Dayashankar Vaidya v. The B.B. and C.l. Railway(') turned upon the construction of s. 108 of the Indian Railways Act. The servants of the railway assaulted the plaintiff for pulling the communication chain. The Court held that the railway was not liable as the servants were not authorised under the statute to arrest the plaintiff for pulling the communication chain and. therefore, they were not liable for the assualts committed by their servants.

In Nalini Ranja11 Sen Gupta v.

Corporation of Calcutta(•) when a chauffeur, who was taking his master's car to a workshop for repairs, finding the lane leading to it impassable, left the car in charge of the cleaner, whose duty was only to clean the car and who was forbidden to drive it, and went to the workshop, and during his absence the cleaner drove it against and broke a municipal lamp-post, it was held on the facts of the case that the -----

(!) L.R. ( 1893] I Q.B. 629.

(3) (t918) 20 Born. L.R. t26.

(2) (1927-28) 44 T.L.R. 294.

(4) (1925) I.LR. 52 Cal. 983.

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s. M. KALAL V. s. J. BHATT (Hidayatullah, J.) 535

chaufeur was not negligent and that the cleaner caused the accident outside the scope of his employment and, therefore, the owner was not liable .

The decision in Emperor v. Shantaram Ram Wadkar (1) turned upon the meaning of the word "allowed" in s. 6 of the Motor Vehicles Act, 1914, and is not of any help in deciding the present case. The decision in The Managing Director, R.U.M.S. Ltd., Rasipuram v. Ramaswamy Goudan (2) followed Ricketts v. Thos .

Tilling, Ltd., (3) and held that where the servant who was charged with the duty of driving a bus was responsible for allowing the conductor to drive and if he was so responsible he must be equally responsible for the negligent driving by the person who was permitted to drive. The last decision accepted the second proposition and applied it to the facts of the case before the court. The said decisions do not in any way detract from the view expressed by me.

Both the Courts below concurrently found on the evidence that the 3rd defendant was guilty of negligence in causing the accident. We did not permit the learned counsel for the appellant to question the correctness of the said finding. I accept it. No argument was advanced on the question of the quantum of damages.

In the result, agreeing with the High Court, I hold that the 1st defendant is liable in damages to the plaintiff for the accident caused by the 3rd defendant. The appeal fails and is dismissed with costs.

Hidayatullah, J. The facts need not be stated elaborately for there is little dispute about them. We shall therefore content ourselves with such facts as serve to introduce the reasons for our opposite conclusions.

The respondent sued three persons for damages for personal injuries which led to the amputation of one of his legs in a motorcar accident. The vehicle belonged to the appellant (first defendant) who had entrusted it to the second respondent for being plied as a taxi. We shall refer to the appellant as the owner of the vehicle or, shortly, owner. At the lime of the accident, it was driven by the third defendant to whom it had been handed over by the second defendant for the purpose of taking a driving test to obtain a driver's. licence. In fact, the motor inspector taking the test was by the side of the third defendant when he was driving. The second defendant was not present in the car but was present when the third defen - dant took the car and had given permission. The suit was defended by the owner of the vehicle for himself. The second defendant remained absent at the trial. The third defendant filed a written

(I) (1932) 34 Born. L.R. 897.

(2J LR. 1957 Mad. 513.

(3) L.R. (1915) 1.K.B. 644.

~- M. KALAL V. ~- J. BHATT (Hidayatul/ah, J.) 537

the respondent and on the written statement (Ex. 16) filed by him in the suit held that the third defendant was himself probably a servant and in any event, the second defendant as manager of the taxi was clearly authorised to allow the third defendant to drive it.

The High Court therefore decreed the claim against the owner also and enhanced the amount of damages awarded by the court of trial.

The first question is whether Exs. 97, 87, and 16 are admissible against the appellant or not. Admission of the documents means admission of facts contained in the documents. The facts were not deposed to by any one and the truth of these statements was not in any way tested. To admit them would be prejudicial to the appellant and strictly speaking no provision of law makes the admissions admissible against a person other than the person making them, unless such person can be said to be bound by the admission.

This condition does not obtain here. Learned counsel for the respondent, although he attempted to do so at first, did not also rely upon them. We are of the opinion that these documents were inadmissible against the owner. With this evidence excluded there is nothing to show that the owner had employed the defendant to drive the taxi or given him permission to drive the taxi or asked him to take a test to obtain a driver's licence. There is also nothing to show that he had given any authority to the second' defendant to employ strangers to drive the taxi or to take driving tests. The upshot thus is that second defendant was a servant of the owner and the third defendant was a servant of the second'

defendant or at best a cleaner of the taxi. There is evidence, however, to show that the second defendant was present when the vehicle was borrowed for taking the test and had willingly allowed the third defendant to drive the vehicle for the purpose. On these facts, the question is whether the owner of the vehicle can be held responsible.

The law is settled that master is vicariously liable for the acts of his servants acting in the course of his employment Unless the act is done in the course of employment, the servant's act does not make the employer liable. In other words, for the master's liability to arise, the act must be a wrongful act authorised by the master or a wrongful and unauthorised mode of doing some act authorised by the master. The driver of a car taking the car on the master's business makes him vicariously liable if he commits an accident. But it is equally well-settled that if the servant, at the time of the accident, is not acting within the course of his employment but is doing something for himself the master is not liable.

There is a presumption that a vehicle i5 driven on the master's business and by his authorised agent or servant but the presumption can be met. It was negatived in this case, because the vehicle was proved to be driven by an unauthorised person and on his own

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business. The de facto driver was not the driver or the agent of the owner but one who had obtained the car for his own business not even from the master but from a servant of the master. Prima facie, the owner would not be liable in such circumstances.

Ricketts'(') case which was relied upon by the respondent is a <:ase in which the driver of an omnibus asked the conductor to drive the omnibus and turn it round to make it face in the right direction for the next journey. The master was held liable vicariously, because the driver was negligent in the performance of the master's work. The driver was in fact seated by the side of the conductor at the time when the omnibus was turned round. In other words, the turning round of the vehicle was an act within the employer's business and not something outside it. When the driver asked the conductor to drive the omnibus for his master's business, he did the master's work in a negligent way. The master was therefore rightly held responsible. In Ricketts'(•) case, all the three Judges expressed the opinion that there should be a new trial. As it was a jury trial and the driver was sitting by the side of the conductor and had control, the question was whether it should not have been found what was the "effective cause" of the accident, that is to say, the act of an utter stranger or that of a servant acting negligently in the course of his employment. It is significant that in Trust Co.

Ltd., v. de Silva,(2) Ricke/ls' case was cited but was not referred to by Lord Tucker pronouncing the judgment on behalf of the Judicial Committee. The reason was that the case before the Privy Council fell within the rule which was stated by Lord Tucker to be :

"It is now well settled that the person in control of a carriage or motor vehicle ........ though not actually driving ... . is liable for the negligence of the driver over whom he has the right to exercise control."

The above principle is applicable when the person owning the vehicle is present. In Ricke/ls'(') case the driver was present and he asked the conductor to do the work which he was employed to do and this negligence made the omnibus company liable. In Beard v. London General Omnibus Co.(') the conductor attempted to turn the omnibus on his own initiative and caused an accident. The company was

he1d not liable, because it was not a part of the conductor's duty to drive the omnibus. lt was not negligence in the course of his employment.

Similarly, in Englhart' s(~ case, two rvants were e?gaged upon their master's business. One was to dnve a cart and mmd the

(I) L.ll. (1915] I K.B. 644, 646, 650.

. (2) [1956) I W.L.R. 376.

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horses and the other-a boy travelling in the cart was to deliver parcels. The driver left the cart unattended and the boy drove it to deliver the parcels and caused the accident. The master was held responsible. The driver ought to have known that if he left the cart the boy would drive it in the fulfilment of the work of the master. When the driver left the cart in the charge of the boy he acted negligently in the course of his master's business. No doubt, 'the effective cause' was the negligence of the servant which made the master responsible but that is not the whole of the matter.

In Ricketts'(!) and Enge/hart's(2) cases each servant was acting on the master's business at the time. If the two servants in the Enf{e/hart' s case(2) had gone for a picnic or the boy had borrowed the cart to give a joy ride to his friends, the master would not have been liable although the effective cause would still have been the elder servant's negligence. The difference lies in this that in the two cases the negligent act took place in the execution of the master's business and in the examples suggested by us, no question of master's business or the scope of the servant's or agent's employment arises, because the acts are clearly outside that scope. Going for a picnic or lending the cart so that the co-servant's friends may go for an outing is not in the course of the master's employment. Beard's case(3) when compared with Ricketts' case(') brings out the difference.

In Britt v. Go/moye and Nevil/(4) the master himself lent the car to the servant for the latter's private work and the master was not held responsible for the negligence of the servant in causing injury because neither was the journey on the master's account nor was the master in control at the time. Sir John Salmond (13th Edn. p. 124) has summed up the law thus :

" .... a master is not responsible for the negligence or other wrongful act of his servant simply because it is committed at a time when the servant is engaged on his master's business.

It must be committed in the course of that business, so as to form a part of it, and not be merely coincident in time with it." The scope of employment of a servant need not of course be viewed narrowly, but the essential element that the wrong must be committed by the servant during the course of the employment, i.e. in doing the master's business ought always to be present. In Century Insurance Co. v. Northern Ireland Road Transport Board,(') the driver of a petrol lorry while transferring petrol from the lorry to an underground tank, struck a match to light a cigarette and threw it on the floor, and thereby caused a fire and explosion which did great damage. The masters were held liable because the negligence was in the discharge of the duty by the servant. Although the act

(1) L.R. (1915] l K.B. 644.

(2) [1897] 1 Q.B. 240 •

(3) [19JO] 2 Q.B. 530.

(4) (1927-28) 44 T.L.R, 294.

(5) [1942] A.C. 509.

SUPREME COURT REPORTS [l 966] 3 S.C.R.

of lighting the cigarette was something the driver did for himself and was by itself quite harmless, it could not be regarded in the abstract and was a negligent method of conducting the master's work. Similarly, in Smith v. Martin(') a school authority was held liable when a teacher, during school hours sent a girl aged 14 wearing a print pinafore to poke the fire and to draw out the damper in a grate in the teacher's common room and the child was burnt.

It was held that the teacher's duty was to provide education in the widest sense and included expecting obedience from the pupils and this was an act .of negligence in the discharge of such duty.

We know of no further extension of the doctrine of a master's liability for the act of his servants during the course of his employment which would cover this case.

It cannot possibly be stated today that the master is responsible for the acts of his servant done, not in the course of employment, but outside it.

In the present case, the third defendant was not doing the master's work nor was the second defendant acting within the scope of his employment when he lent the taxi. The third defendant had borrowed the taxi for a work of his own and the second defendant in lending it was not acting in the master's business. The second defendant was not present in the taxi so that he could be said to be in control on behalf of his employer wheq the taxi was driven.

The law with regard to agents is the same. As was observed by Lord Atkinson in Samson v. Aitchison(2) it is a matter of indifference whether a person be styled a servant or agent since it is the retention of control which makes the owner or the principal responsible.

Just as the tort must be committed by a servant either under the actual control of his master or while acting in the course of his employment, the act of the agent will only make the principal liable if it is done within the scope of his authority. By a process of ratiocination, the courts have made a slight distinction by attempting to find a 'right of control' as the basis of the master's liability and have distinguished it from a 'right to control' in cases of simple agency to bring the two case' togcthec.

We fi:id it simpler to st1tc the law that an agent will make the pnnc1pal responsible "' long as the agent does the act within the scCJpe of his authority or does so under the actual control of the principal. We do not subscribe to the extension of the doctrine that the act of the servant or the agent must be for the master's benefit. This extension was made by Willes J. in Barwick

v. English Joint Stock Bank('). The word 'benefit' is vague and it is better to adhere to the words 'course of employment' or the 'scope of authority'. There is much institutional criticism ofsuchcxtension. Similarly, we arc doubtful whether the cxtenoion of the principle by the introduction of the doctrine ----- ---·-- ---·

(0 (1911] 2 K.B 775, 784.

(c) (1912] A.C. 884 (31 11867] I R 2 lo>. 259

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s. M. KALAL v. s. J. BHATTA (HidlI)latul/ah, l.) 541

of implied authority, which was relied upon in the school master's case referred to above, was quite correct. If the dictum is accepted, not only the master would be liable for what he may be supposed to have 'impliedly authorised' 'the servant to do (however illegal but also for all the servant's negligence not in doing his duty but in doing something on his own account when he should be properly acting for the master. The true rule in such cases is the one stated by Cockburn C. J. in Storey v. Ashton(') thus :

" .... that the master is only responsible so long as the servant can be said to the doing the act, in the doing of which he is guilty of negligence, in the course of his employment as servant."

or as Lush J. put it,

"The question in all such cases as the present is whether the servant was doing that which the master employed him to do."

There has been in recent years another extension of the responsibility of the principal for the act of an agent. In Ormrod and another v. Crosville Motor Services Ltd., and another(2) the owner was attending the Monte Carlo motor car rally. He asked a friend to drive the car from Birkenhead to Monte Carlo. The friend was carrying a snit case belonging to the owner. Later they were to go a holiday together in the car. While the motor car was being driven it collided with a motor omnibus and the owner of the car was held responsible for the damage. Singleton, L. J. observed :

"It has been said more than once that a driver of a motor car must be doing something for the owner of the car in order to become an agent of the owner. The mere fact of consent by the owner to the use of a chattel is not proof of agency, but the purpose for which this car was being taken down the road on the morning of the accident was either that it should be used by the owner, the third party, or that it should be used for the joint purposes of the male plaintiff and the third party when it reached Monte Carlo."

Lord Denning (then Lord Justice) observed :

"It has often been supposed that the owner of a vehicle is only liable for the negligence of the driver if that driver is his servant acting in the course of his employment. This is not correct. The owner is also liable if the driver is, with the owner's consent, driving the car on the owner's business or for the owner's purposes. .... The law puts an especial responsibility on the owner of a vehicle who allows it to go on the road in charge of some

(I) (1868·69J 4 Q.B.P. 476.

(2) (1953] 2 AU E.R. 753.

LI JSupCI/66-3

542 SUPRl!MI! COURT REPORTS

(1966] 3 S.C.R.

one else, no matter whether it is his servant, his friend, or any one else. It is being used wholly or partly on the owner's business or for the owner's purpose, the owner is liable for any negligence on the part of the driver. The owner only escapes liability when he lends it or hires it to a third person to be used for purposes in which the owner has no interest or concern."

Even these dicta which make the owner or principal responsible when the vehicle is driven partly on their account and partly on the business of the driver, do not take the matter much further. The learned Judges found the agency from the desire of the owner that the friend should carry his suit case and keep the car ready at Monte Carlo for a holiday.

Applying the above tests to the facts of this case, we find that there is no proof that the second defendant was authorised to coach the cleaner so that the cleaner might become a driver and drive the taxi. It appears more probable that the second defendant wanted someone to assist him in driving the taxi for part of the time and was training the third defendant to share the task of driving. The owner stated on oath that he had not given any such authority to the second defendant.

The trial Judge accepted that evidence.

The High Court differed from the trial Judge by relying upon inadmissible evidence. Once the inadmissible evidence is rightly excluded, it is quite clear that this was an act done not on the owner's business but either on the business of the third defendant or that of the third and the second defendants together. It has not been proved to have been even impliedly authorised by the owner or to come within any of the extensions of the doctrine of scope of employment which we have noticed above. The High Court would probably not have passed a decree against the owner if it had not been persuaded to hold the three pieces of evidence to be admissible and relevant. In the absence of that evidence the acts of the second and the third defendants viewed separately or collccti vely were not within the scope of their respective or even joint employment and the owner was therefore not responsible.

We would accordingly allow the appeal, in so far as the appellant is concerned but in the circumstances of the case would direct that there should be no order as to costs throughout.

ORDER In accordance with the opinion of the majority the appeal is allowed in respect of the appellant. In the circumstances of the case there would be no order as to costs throughout.

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SITARAM MOTILAL KALAL

SANTANUPRASAD JAISHANKAR BHATT

February 8, 1966

K. SUBBA RAO

M. HIDAYATULLAH

R. S. BACHAWAT, JJ.

Subba Rao

M. V. Goswami

S. N. Prasad

J.B. Dadaclianji

. C. Mathur

Rani1der Narain

SUBDA RAO

HIDAYATULLAH

BACHA WAT

HIDAYAT-

ULLAH

Sobba Rao

Sitararn Motilal Kalal

Mohmmed Yakub Haji

Ahmedabad

April 11, 1940

Civil Judge, Ahmedabad

Indian Globe Insurance Company, Limited

High Court of Bombay

s. 96(1)

Motor Vehicles Act, 1939

M. V. Goswami

Pcrshad

India

Motor Vehicles Act

Pearson

H Cockburn

Subba Rao

Buckley

Pickford

Esher

Mears

Kathwada

April 11,

1949

Down Construction Syndicate, Ltd.(1

s. 108

Railways Act

M. KALAL

s. 6

Motor Vehicles Act, 1914

J. BHATT

Tucker

Englhart

Ricketts

Beard

John Salmond

Atkinson

Willes

Cockburn

Lush

Carlo

Birkenhead

Monte

Singleton

Monte Carlo

Denning


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RANJIT SINGH

PRITAM SINGH & ORS.

February 8, 1966

(P. B. GAJENDRAGADKAR C. J., K. N. WANCHOO, J.C. SHAH, s. M. SJKRI and v. RAMASWAMI JJ.]

Representation of the People A.ct (43 of 1950), s. 33(5)-Requlremenu of section-Copy of electoral roll whether to be filed by candldat•

with each nominaticn paper-Copy of electoral roll of assembly constituency whether can be filed in election for Par/iament-'Part', of electoral C roll to be filed-Filing of incomplete copy of 'parf whether defect of substantial character for the purpose of s. 36( 4).

The appellant's election to Parliament was challenged by the first respond<lnt on the ground that the nomination papers of the third candidate, W, had been wrongly rejected by the returning officer and this had mat&- rially affected the result of the election.

W had filed three nomination papers with on• only of which he had filed a copy of the electoral roll of the assembly constituency in purported compliance with s. 33(5) of the ReprOllentation of the People Act, 1950.

The nomination paper with which W had filed the said copy was rejected on account of technical defects; the other two were rejected because no such copy was filed with them. The Election Tribunal dismissed the first respondent's petition holding that the returning officer had rightly rejected the nomination papers of W. The High Court took the opposite view and set aside the election.

The appellant came to this Court by certificate and contended that W had not complied with s. 33(5) because (i) under that section a copy of the electoral roll must be produced with every nomination paper, (ii) W had filed a copy of the electoral roll of the assembly CODlltituency and not of the Parliamentary constituency, (iii) the copy produced was not a complete copy of the relevant 'part' of the electoral roll. 1 ;{, HELD : ( i) The returning officer was wrong in not looking at the copy of the electoral roll filed with one of the nomination papers filed by W when dealing with the other nomination papers filed by him. Section 33(5) does not require that a copy must be filed with each nomination paper or that any copy should be filed al all, for the candidate is given the alternative to produce before the returning officer sach copy at the time of scrutiny. The purpose of filing the copy is to ensure that the returning officer is able to check whether the candidate concerned is qualified or not and that purpose would be effectively served even if only one copy is filed with one nomination paper and no copies are filed with the other nomination papers by the said candidate. [547 F-548 DJ

(ii) The electoral roll for a parliamentary constituency is made up by stitching together the electoral rolls of the assembly constituencies comprised therein. Therefore if a candidate files a copy of the electoral roll of an assembly constituency that copy is sufficient to show that he is an elector in the parliamentary constituency in which that assembly constitueacy is includecl.

W had filed copy of the assembly constituency in which he was recorded as an elector and the High Court was right in rejecting the contention based on the fact that the copy of the roll 9f the parliamentary constituency was not filed.

[548 G, HJ

544 SUPREME COURT REPOllTS

(1966] 3 S.C.R.

(iii) Under r. 5 of the Registration of Electors Rules, 1960 it is provided that "the roll shall be divided into convenient parts which shall bo numborod conaecutiYely". When 1. 33(5) refora to a copy of the relevant parts of the electoral roll it means a part as defined in r. 5. In producing not the full part but only a portion of tho electoral roll in which be wu recorded 81 an elector W did fail to comply with the requirements of s. 33(5). A complete copy would carry the various amend

menlll made in the roll and enablo the returning officer to see whether the name of the candidate continued in the roll for the whole of the relevant period.

The High Court waa not right in illl view that the production of an incomplete copy was not a defect of substantial character which would make tho nomination paper liablo to bo rejected. Tho nominatiOll papen of W were rightly rejected by tho ro<urning officer though for dift'eront reasona.

(549 D; 551 E-F) CI\'IL APPELLATE JURISDICTION : Civil Appeal No. 459 of 1965.

Appeal by special leave from the judgment and order dated July 14, 1964 of the PuRjab High Court in First Appeal from Ordet

No. 1-E of 1964.

Bishan Narain, J. B. Dadachanji, 0. C. Mathur and Ravinder

Narain, for the appellants.

D S. S. Shukla, for respondent No. I.

The Judgment of the Court was delivered by Wandloo, J, This is an appeal by special leave from the judg ment of the Punjab High Court. fn the general election held in 1962 for Parliament (House of the People), the appellant was elected from the Sangrur parliamentary constituency. Pritam Singh respondent was also one of the contesting candidates but lost in the election. Thereupon he tiled an election petition against the appellant challenging his election on a number of grounds. In the present appeal we are only concerned with one ground, and that was that the nomination papers of one of the candidates for the election, namely, Wazir Singh, had bee11 rejected improperly by the returning officer. Wazir Singh had filed three nomination papers; with one of them he had attached a copy of a part of the electoral roll. He attached no such copy with the otber two nomination papers. When the nomination papers were being icrutinised, an objection was taken to the validity of the nomination papers. The returning officer first took up the nomination paper with which a copy of part of the roll had been filed and rejected it on the ground that the name of the parliamentary constituency and the name of the village and the assembly constituency and the part number of the electoral roll of the candidate was not mentioned and also because the name of the parliamentary constituency (House of the People) of the proposer was not given. After rejecting this nomination paper, the , eturning officer took up the other two nomination papers and rejected them on the ground that a copy of the electoral roll of the constituency concerned or of the relevant part thereof or a certified

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ll, ANJIT SINGH v. J.>lllTAM SINGH (JJ:anchoo, J.) 545

copy of the relevant entries had not been filed along with these nomination papers. It may be added that the returning officer refused to look into the copy of the part of the roll which Wazir Singh had filed along with his nomination paper which the returning officer had already rejected before he took up the other nomination papers.

The main contention of respondent Pritam Singh in the election petition was that the returning officer was wrong in not looking into the copy of the part of the roll which had been filed with the first nomination paper ef Wazir Singh and that merely because that nomination paper had been rejected, the returning officer was not precluded from looking into the copy of the part of the roll which had been produced with that nomination paper for the purpose of scrutiny of the other two nomination papers. The appellant on the other hand contended that the nomination papers had been rightly rejected, and this contention was based on three points raised on his behalf, namely-(i) that a copy of the electoral roll of that constituency or a relevant part thereof or a certified copy of the relevant entries of such roll should have been produced with each nomination paper separately; (ii) in any case the copy produced should have been of the parliamentary constituency and not of the assembly constituency; and (iii) that the copy produced of the part of the roll was not a complete copy of the part and therefore was not a compliance with the requirements of s. 33 (5) of the Representation of the People Act, No. 43 of 1950, (hereinafter referred to as the A, ct).

The Election Tribunal seems to have taken the view that the copy filed along with the first nomination paper could not be looked into when the returning officer came to scrutinise the other nomination papers, even if it might be assumed to be a copy of the parliamentary electoral roll. It further held that even if the copy could be looked into, it was not a complete copy and therefore there was no compliance with s. 33 (5) of the Act and in consequence the Tribunal held that the returning officer was justified in rejecting the nomination papers notwithstanding the provisions of s. 36 (4) of the Act.

Pritam Singh then went in appeal to the High Court. The High Court held that the returning officer was wrong in not looking into the copy which had been produced along with the first nomination paper, and that the copy produced, though it was apparently of an assembly constituency, could also be taken to be a copy of the parliamentary roll. Lastly on the question whether the copy produced was a complete copy or not, the High Court held that the copy actually produced, though it admittedly did not contain certain pages, was sufficient for the purposes of s. 33 (5) of the Act. lo this view, the High Court held that one of the nomination papers of

SUPREME COURT REPORTS fl %6] 3 S.C.R.

Wazir Singh was improperly rejected and in consequence of that the result of the election was materially affected. It therefore set aside the election. The High Court having refused to grant a certificate, the appellant applied to this Court for special leave which was granted; and that is how the matter has come before us.

The same three points which were urged before the Tribunal on behalf of the appellant have been raised before us. In the first place it is urged that the necessary copy required under s. 33 (5) of the Act must be produced with every nomination paper, and that it is not enough where more nomination papers than one are filed that a copy should have been filed with only one of them. Secondly it is urged that the copy produced was of the assembly constituency while it should have been of the parliamentary (House of the People) constituency. Lastly the argument is that in any case the copy produced was not complete and therefore there was no compliance with s. 33 (5) of the Act. The returning officer therefore was justified in rejecting the nomination paper under s. 36 (2) (b) of the Act and that s. 36 ( 4) did not apply in the circumstances of the case.

We shall deal with these points seriatim.

Section 32 at the relevant time provided that "any person may be nominated as a candidate for election to fill a seat if he is qualified to be chosen to fill that seat under the provisions of the Constitution and this Act."-Section 4 (d) of the Act requires that in the case of any other seat for the House of the People besides those mentioned in els. (a), (b) and (c) of that section, a person has to be an elector for any parliamentary constituency (House of the People) to be entitled to stand for election to the House of the People.

It is with this qualification alone that we are concerned in the present appeal. "Elector" is defined ins. (2) (c) of the Act as meaning "in relation to a constituency a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950." Therefore if a person is an elector in a parliamentary (House of the People) constituency and is not subject to any disqualification he can stand for election to the House of the People from any constituency.

Then we come to s. 33 (5). The object of this provision obviously is to enable the returning officer to check whether the person standing for election is qualified for the purpose. The electoral roll of the constituency for which the returning officer is making scrutiny would be with him. and it is not necessary for a candidate to produce the copy of the roll of that constituency. But where the candidate belongs to another constituency the returning officer would not have the roll of that other constituency with him and therefore tho provision contained in s. 33 (5) has been made by he lcJ:!islatur.e to enable the returning officer to check that the candidate ts qualified

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for .... namg for election. For that purpose the candidate is given the choice either to produce a copy of the electoral roll of that other constituency, or of the relevant part thereof or of a certified copy of the relevant entries in such roll before the returning officer at the time of the scrutiny, if he has not already filed such copy with the nomination paper. Naturally where the candidate is standing for a parliamentary constituency (House of the People) he will have to file a copy of the roll of some parliamentary constituency. The argument on behalf of the appellant is that under the proviso to s. 33(6) a candidate is entitled to file upto four nomination papers and therefore when s. 33(5) says that a copy would be filed with the nomination paper it requires that one copy should be filed with each nomination paper and if that has not been done there is no compliance with s. 33(5). Section 33(5) does not require that a copy must be filed with each nomination paper for, the candidates is given the alternative to produce before the returning officer such copy at the time of the scrutiny. So the candidate need not file any copy with the nomination paper and it is enough if he has a copy in his possession which he produces before the returning officer at the time of the scrutiny. Further there is nothing in s. 33(5) which requires that if a candidate bas

(say) filed four nomination papers be should have four copies with him to produce before the returning officer at the time ofthe scrutiny. It would in our opinion be enough if he has one copy with him at the time of the scrutiny and shows it again and again as each nomination paper is taken up for scrutiny by the returning officer. We see no sense in holding that in such a situation the candidate should arm himself with four copies for the purpose of showing the copy to the returning officer at the time of scrutiny.

The same copy in our opinion can be produced again and again before the returning officer as he takes up the scrutiny of each of the nomination papers filed on behalf of a candidate. If that is so we see no difficulty in holding that where a number of nomination papers have been filed and a copy has been filed with one of them, that is enough. Again we see nothing ins. 33(5) which prevents a returning officer from looking at the copy filed with one nomination paper, even after that nomination paper has been rejected or with a nomination paper which is pending before him for scrutiny, when he comes to deal with other nomination papers.

As we have said before, the purpose of filing the copy is to ensure that the returning officer is able to check whether the candidate concerned is qualified or not and that purpose would be effectively served even if only one copy is filed with one nomination paper and no copies are filed with the other nomination papers. It may

e that for certain purposes each nomination paper stands by itself, but so far as filing of a copy with a nomination paper under S: ~3(5) is c~:mcerned., we .must look at he object be!J!nd the pro- VISlon, and 1f that object 1s served by filmg a copy with one nomi-

SUPRBMB ~URT REPORTS

(1966] 3 S.C.R.

nation paper, we see no sense in requiring that where a number of nomination papers are filed there should be a copy with each nomination paper. There is nothing in s. 33(5) which prevents the returning officer from looking at a copy filed with a nomination paper which has been rejected or which is still to be scrutinised for the purpose of satisfying himself when he takes up the other nomination papers that the candidate is qualified to stand. Nor has any rule been shown to us which in terms prevents the returning officers from looking into a copy which has been filed with a nomination paper (which might have already been rejected) for the purpose of scrutinising other nomination papers of the same candidate. If the purpose of s. 33(5) can be served by the production of one copy at the time of scrutiny when it has not been filed with the nomination paper, we do not see why that purpose could not be served by filing a copy with one nomination paper where more nomination papers than one have been filed by the same candidate. We therefore agree with the High Court that the returning officer was wrong in not looking at the copy filed with one nomination paper when he was dealing with other nomination papers of

Wazir Singh.

This brings us to the second point raised before us, namely, that the copy filed was not of the parliamentary (House of the People) constituency but of the assembly constituency. This contention also has no force. If we look at the Representation of the People Act, 1950 we find that Part III thereof provides for the preparation of electoral rolls for assembly constituencies.

So far as parliamentary constituencies (House of the People) arc concerned, s. I 3D provides inter alia that the electoral roll for every parliamentary constituency shall consist of the electoral rolls of so much of the assembly constituencies as are comprised within that parliamentary constituency; and it shall not be necessary to prepare or revise separately the electoral roll for any such parliamentary constituency. It is clear therefore that the electoral roll for a parliamentary constituency is no other than the electoral roll for the assembly constituencies comprised within that parliamentary constituency. It is not in dispute that the electoral roll for a parliamentary constituency is made up by stitching together the electoral rolls of the assembly constituencies comprised therein.

Therefore if a candidate files a copy of the electoral roll of an assembly constituency, that copy is sufficient to show that he is an elector in the parliamentary constituency in which that assembly constituency is included. The argument that the copy filed in the present case did not comply with s. 33(5) as it was not a copy of the parliamentary constituency must therefore fail. The copy was of an assembly constituency in this case, and if the candidate was an elector in the assembly constituency he would be an elector in the parliamentaiy (House of the People) constituency which includes

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llANJIT SINGH v. PRITAM SINGH (Wanchoo, J.) 549

that assembly constituency. The High Court therefore was rit in rejecting the contention that the copy of the roll of the parhamentary (House of the People) constituency was not filed.

This brings us to the last point raised on behalf of the appellant, namely, that the copy filed was not a complete copy and !herefoe there was no compliance with s. 33(5) of the Act. It 1s not m dispute that the copy filed was not a complete copy. The appellant produced a complete copy of that part of the roll and that showed that pages 19 to 22 and page 25 of that part of the roll were not filed by Wazir Singh. Now s. 33 (5) gives three options to a candidate in the matter of filing a copy. He may file either a copy of the electoral roll which means a copy of the entire electoral roll of the parliamentary (House of the People) constituency, or a copy of the relevant parts thereof, which means the whole of the parts concerned. Under the Registration of Electors Rules,

1960 (hereinafter referred to as the Rules), it is provided by r. 5 that "the roll shall be divided into convenient parts which shall be numbered consecutively". Therefore when s. 33(5) refers to a copy of the relevant parts thereof, it means a part as defined in r. 5 above. Besides these two alternatives, a candidate has a third alternative, namely, the production of certified copies of the entries of his name and the name of the proposer from any roll.

In the present case, the candidate Wazir Singh chose the second alternative, namely, he produced a copy of the relevant part thereof. The part in question produced in this case was part IV. of the Simla legislative assembly electoral roll. Section 33(5) therefore required the candidate (namely, Wazir Singh) to produce the whol1:

of this part. It is not in despute that he did not produce the whole of this part and the question is whether his failure to do so would result in the rejection of his nomination paper.

To decide this question it is necessary to refer to the Rules.

Rule IO requires that "as soon as the Roll for a constituency is ready, the registration officer shall publish it in draft by malcing a copy thereof available for inspection and displaying a notice in form 5." Under r. 11, the registration officer is required to give further publicity to the roll and to the notice in form 5. Thereafter r. 12 provides for claims for the inclusion of a name in the roll and objections to an entry therein. After such claims and objections have been made, the registration officer has to consider them under r. 18. Under r. 19, he gives a hearing if necessary and thereafter he orders the inclusion of names in the roll or exclusion of names from the roll under r. 20. Then under r. 22, the registration officer has to prepare a list of amendments to carry out his decisions under rr. 18, 20 and 21 and he may correct any clerical or printing errors or other inaccuracies subsequently discovered in the roll. He then publishes the roll together with the list of

55Q SUPREME COtaT REPORTS

[ 1966) 3 S.C.R.

amendments by making a complete copy thereof available for inspection, and displaying a notice in form 16. On such publication the roll together with the list of amendments shall be the electoral roll of the constituency.

The scheme of these Rules therefore, is that a draft is first prepared. Thereafter claims and objections are disposed of. If any claim is admitted, the name is included in the roll, if any objection is allowed the name already in the draft roll (or may be in an earlier amendment) is deleted. This inclusion or deletion is made by publishing amendments to the roll and thereafter the draft roll along with one or more amendments becomes the electoral roll of the constituency. It will be seen from this that where a name is excluded on an objection being allowed, the name is not scored out. What the rule provides is that deletion of a name from a draft or even from an earlier amendment made by inclusion by the registration officer, is included in the list of amendments published Under r. 23, an appeal is allowed from any decision of the regi!tration officer including a name or excluding a name, so that where the registration officer includes a name after bearing a claim that is subject to an appeal and the appellate officer may reject the claim whereupon the amendment made by the registration officer by including a name may fall through. Under sub r. (5) of r. 23 of the Rules, the registration officer is given power to cause such amendments to be made in the roll as may be necessary to give effect to the decisions of the appellate officer. This shows that when s. 33 (5) requires that a copy of the relevant part of the roll may be filed or produced the copy is to be a complete copy along with all amendments, for it may be that even though a name may be included ; n the first amendment by the registration officer it may be excluded in the second amendment if the appellate officer has rejected the claim.

We have already said that the object of producing the copy under s. 33(5) is to enable the returning officer to check whether the candidate and the proposer are qualified or not, one for the purpose of standing and the other for the purpose of proposing.

In order to check this, the returning officer must have a complete copy of the relevant part. If the copy is not a complete copy it is possible that a name which may have been included in the draft or in the first amendment may have been excluded in the second amendment made on the basis of an order of the appellate officer.

Therefore to enable the returning officer to decide whether, a candidate is qualified to stand or whether a proposer is qualified to propose he must have a complete copy of the relevant part of the roll.

Ifhe has not a complete copy he will not be able to decide.wbeber the candidate or the proposer has the necessary quabficallon.

In the present case it is not in dispute that Wazir Singh did not produce a complete copy of Part IV of the roll. Part IV consisted

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; •

of 25 pages; of these Wazir Singh did not produce pages 19 to 22 and page 25. Page 25 as appears from the complete copy of the roll filed by the appellant contained a second list of amendments.

It is true that Wazir Singh's name did appear in the first amendment at No. 1853; but that as we have already shown was not conclusive for the second amendment which was not produced might have deleted that name. Therefore the copy produced by W azir Singh not being complete was not sufficient to enable the returning officer to decide whether he was qualified to stand or not for his name might have been deleted in the second list of amendments in which case he would not have been qualified. It is true that in actual fact it appears from the copy which was produced by the appellant before the Tribunal that Wazir Singh's name was not deleted in the second list of amendments; but that appears from the copy produced by the appellant before the Tribunal and not from the copy . produced by Wazir Singh before the returning officer.

Section 33(5) requires that it is the copy produced by the candidate which should show whether he is qualified or not and for that purpose a copy produced by the candidate should be complete whether it is of the roll or of the relevant part thereof. To such a case s. 36( 4) has no application. That provision is to the effect that the returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. But the non-production of a complete copy of the relevant part in our opinion is a defect of a substantial character for it makes it impossible for the returning officer to decide whether the candidate is qualified or not. Qualification for standing for election is a matter of substantial character. We are therefore of opinion that the High Court was not right in the view it took that the production of an incomplete copy of the relevant part was not a defect of a substantial character which would make the nomination paper liable to be rejected. The fact that the returning officer rejected the nomination paper on some other ground is of no consequence. If there was in truth a defect of a substantial character in the matter of compliance with s. 33 of the Act, the nomination paper was liable to be rejected, and if it was so rejected, rejection would be proper whatever may have been the reason given by the returning officer.

In the present case we are of the opinion that the production of a copy of the electoral roll which is incomplete is a defect of a substantial character. This defect will invalidate all the nomination papers. The nomination papers of Wazir Singh were rightly rejected by the returning officer, though he gave different reasons for doing so.

The appeal therefore succeeds and is hereby allowed with costs.

The election petition is dismissed. Pritam Singh, respondent, will pay the costs.

Appeal allowed.

RANJIT SINGH

PRITAM SINGH & ORS

P. B. GAJENDRAGADKAR

K. N. WANCHOO, J

C. SHAH

v. RAMASWAMI JJ.

s. 33(5)

s. 36( 4)

Parliament

s. 33(5)

ReprOllentation of the People Act, 1950

s. 33(5)

Section 33(5)

Registration of Electors Rules, 1960

s. 33(5)

Bishan Narain

Ravinder

Narain

D S. S. Shukla

Wandloo

Pritam Singh

Wazir Singh

s. 33

Representation of the People Act

s. 33

s. 36

Pritam Singh

s. 33

s. 33

s. 33

s. 36

s. 36

Section 32

Section 4

section 16

Representation of the People Act, 1950

s. 33

s. 33

s. 33(6)

s. 33(5)

s. 33(5)

Section 33(5)

s. 33(5)

s. 33(5)

s. 33(5)

s. 33(5)

s. 33(5)

s. 33

Registration of Electors Rules

s. 33(5)

Section 33(5)

s. 33

s. 33(5)

W azir Singh

Section 33(5)

s. 36( 4)

s. 33


BABAN SINGH AND ANR.

JAGDISH SINGH & ORS.

February 8, 1966

[K. SUBBA RAO, M. HIDAYATULLAH AND R. S. BACHAWAT JJ.j

Indian Penal Code, 1860, ss. 191, 192 and 199-F/llng affidavit containing false statements before High Court-Offence under which section commuted.

Code of Criminal Procedure, ss. 476 and 419-A(6)-0fiences by witnesses under ss. 191 and 192 Penal Code-S. 479..A app/le, and octkin

wnder s. 476 c1111110t be taken.

The appellants made affidavits in the High Court dcnyinii receipt of money '1}' way of compromise in a first appeal pending before that Court. The High Coun ordered the Registrar to hold an enquiry. The

Resistrar after recording the evidence of the parties reported that the appellants' denial of receipt of money was false. Thereafter an application was made to the High Court under s. 476 of the Code of Criminal Procedure which was kept pending and taken up after the appeal was decided.

D Tho Hiab Coun held that tho olfence committed by tho appellan:a - ou under 8. 199 Indian Penal Code and ordered the Registrar to file a complaint.

The appellanta came to this Coun under

1. 4768.

The questions for consideration were;

(I) whether the otrence committed by the appellants fell under s. 191 and 192 of the Penal Code or under 8. 199, and (2) whether proceedings under s. 479-A could be llleo against the appellants, for if they could be, then action ouiibt to have been taken under that section and s. 476 could not be invoked.

HELD : (i) When the appellants made declarations in their affidavits which were tendered in tho High Coun to ho taken into consideration intended the statements to appear in evidence, and so appearing, to came tho coun to ontenain an erroneous opinion rqarding the compromile.

Their offence came within the words of ss. 191/192 rather than a. 199 of Ille Indian Penal Code. (556 CJ

(ii) In respost of offences under ss. 191 and 192 of tho Indian Penal Code when committed by a witness action under s. 479-A alone can be taken and action under s. 476 is ruled out because of sub.,., (6) of

1. 479-A. [SS6 E..GJ

CRIMINAL APPELi.All! JUR1smcnoN : Criminal Appeal No. 74 of 1964.

Appeal from the judgment and order dated October 3, 1963 of the Patna High Court in Criminal Misc. Case No. 366of1956.

Naunit Lal, for the appellant.

The respondent did not appear.

The Judgment of the Court was delivered by Hldayatullah, J.-This is an appeal under s. 476-B of the Code of Criminal Procedure by one Baban Singh and his wife Dharichhan Kuer against a judgment and order of the High Court at Patna

• D ...

BABAN v. JAGDISH (Hldayatullah, !.) 553

ordering the Registrar to file a complaint against them under s. 199 of the Indian Penal Code for making false affidavits. The respondents are persons who had moved the High Court under s. 476 of the Code for the prosecution of the appellants in the following circumstances.

Jagdish Singh and Parmhans were appellants in F. A. 301 of 1952 in the High Court at Patna. Mst. Dharichhan Kuer was respondent No. 13 in that appeal. During the pendency of the appeal a compromise was said to have been arrived at between Dharichhan Kuer on the one hand and Jagdish Singh and Parmhans on the other. Dharichhan Kuer and Jagdish Singh swore an affidavit on June 22, 1953 in support of the petition for compromise which was filed in the High Court. Baban Singh's brother identified Dharichhan Kuer before the Oath Commissioner and Rs. 4,000 were paid to Dharichhan Kuer under the terms of the compromise in the Commissioner's presence. Dharichhan Kuer also passed a receipt and her thumb impression was identified by Baban Singh's brother. The petition of compromise was filed in court on July 13, 1953. The same day Baban Singh swore an affidavit (Ex. B) denying the compromise or that his wife had received Rs. 4,000.

This affidavit was filed in the High Court on July 31,

1953. On September 9, 1953 Dharichhan Kuer also filed an affidavit (Ex. A) in support of her husband.

As the compromise was in dispute the High Court ordered the Registrar to hold an enquiry. Nine witnesses were examined on behalf of Jagdish Singh and Parmhans including the Oath Commissioner. Dharichhan Kuer and her husband Baban Singh gave evidence on their own behalf. The Registrar reported on July 14, 1954 that the compromise was genuine and that Dharichhan Kuer had, in fact, sworn the affidavit before the Oath Commissioner and had received Rs. 4,000. B. N. Rai and Kanhaiya Singh, JJ. accepted the report by their order dated October 5, 1956. One of the terms of the rompromise was that if Dharichhan Kuer resiled from it the amount of Rs. 4,000 would be refunded with costs Rs. 500. Dharichhan Kuer deposited this amount in court on October 9, 1956. The first appeal was then heard and disposed of.

The application under s. 476 out of which this appeal has a, risen was filed during the pendency of the first appeal and was taken up for hearing after the appeal was disposed of. A question arose whether a c@mplaint for prosecution of Baban Singh and Dharichhan Kuer for an offence under s. 193, Indian Penal Code could be filed in the High Court because Baban Singh and Dharichhan Ku.er had deposed not before the court but before the Registrar. Further s. 479A (to which we shall refer presently) was introdueed from January l, 1956 and thus on October 5,

1956, when the High Court accepted the report of the Registrar, it was in force. The Divisional Bench did not consider taking action under s. 193 because of s. 479A and it appears that the counsel for Jagdish Singh and Parrnhans also conceded that no prosecution could take place under that section. The High Court, however, considered whether action should be taken in respect of the two affidavits (Exs. A and B). It is not necessary to refer to the statements in these affidavits because we are not considering whether they were true or false. It was contended before the High Court that a prosecution under s. 199 of the Indian Penal Code would be equally covered by s. 479A and as the procedure under that section was not followed an application for prosecution under s. 476 was barred. This contention was not accepted by the High Court and after going into the expediency of the prosecution the learned Judges ordered the Registrar of the High Court to file a complaint before the appropriate authority for the prosecution of the appellants. The appellants now appeal as of right under s. 4768.

At the hearing before us there was no representation on behalf of the respondents. Although notices were issued to Jagdish

Singh, Parrnhans and the State Government, none appeared.

On hearing the learned counsel for the appellants we are satisfied that tltis appeal must succeed. The short question in this case is whether s. 476 could at all be invoked because of the bar contained in s. 479A sub s. (6). The sixth sub-section, to which we have referred lays down that no proceedings shall be taken under ss. 476 to 479 (both inclusive) for the prosecution of a person for giving or fabricating false evidence if in respect of such a person proceedings may be taken under s. 479A. The point to decide, therefore, is whether proceedings under s. 479A could be taken against Baban Singh and his wife, for if they could be, then action ought to have been taken under that section and s. 476 cannot be invoked. Section 479A, in so far as it is relevant to our purpose, provides as follows :-

"479-A. Procedure in certain cases of false evidence.-

( I) Notwithstanding anything contained in section 476 to 479 inclusive, when any Civil, Revenue or Criminal G Court is of opinion that any person appearing !'efore it as a witness has intentionally given false evidence in any stage of the judicial proceeding or has intentionally fabricated false evidence .for. he purpose. or being used in any stage of the 1ud1c1al prceedmg, and that for the eradication of the evils of perjury and H

fabricatin of false evidence and in the interests of justice, it is expedient that such witness should be prosecuted for the offence which appears to have been

• . '

BABAN v. JAGDISH (Hidayatullah, J.) 555

committed by him, the Court shall, at the time of the delivery of the judgment or final order disposing of such proceeding, record a finding to that effect stating its reasons therefor and may, if it so thinks fit, after giving the witness an opportunity of being heard, make a complaint thereof in writing signed by the presiding officer of the Court setting forth the evidence which, in the opinion of the Court, is false or fabricated and forward the same to a Magistrate of the first class having jurisdiction, and may, if the accused is present before the Court, take sufficient security for his appearance before such Magistrate and may bind over any person to appear and give evidence before such Magistrate : Provided that where the Court making the complaint is a High Court, the complaint may be signed by such officer of the Court as the Court may appoint.

The learned Judges in the High Court did not take action in respect of the offence of giving false evidence on oath, as defined in s. 191 and punishable under s. 193 of the Indian Penal Code, because they were of the opinion thats. 479-A of the Code of Criminal Procedure would be applicable to that offence even though evidence was recorded by the Registrar. The High Court selected for action the offence in relation to the two affidavits holding that prima facie an offence under s. 199, Indian Penal Code was committed.

That offence is also punishable in the same manner as if false evidence was given. The difference between ss. 191 and 199 is this; Section 191 deals with statements and declarations falsely made by a person legally bound by an oath or by an express provision of law to state the truth. Section 199 deals with statements and declarations made voluntarily provided they are capable of being -used as evidence and which the court is bound to receive as evidence.

The matter has to be considered from three standpoints. Does the swearing of the false affidavits amount to an offence under s. 199, Indian Penal Code or under either s. 191 or 192, Indian Penal Code ? If it comes under the two latter sections, the present prosecution cannot be sustained, Section 199 deals with a declaration and does not state that the declaration must be on oath.

The only condition necessary is that the declaration must be capable of being used as evidence and which any court of justice or any public servant or other person, is bound or authorised by law to receive as evidence. Section 191 deals with evidence on oath and

s. 192 with fabricating false evidence. If we consider this matter from the standpoint of s. 191, Indian Penal Code the offence is constituted by swearing falsely when one is bound by oath to state the truth because an affidavit is a declaration made under an oath.

The definition of the offence of giving false evidence thus applies to the affidavits. The offence may also fall within s. 192. It lays down inter a/ia that a person is said to fabricate false evidence if he makes a document containing a false statement intending that such false statement may appear in evidence in a judicial proceeding and so appearing in evidence may caus~ any person who, in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding. When Baban Singh and Dharichhan Kuer made declarations in their affidavits which were tendered in the High Court to be taken into consideration, they intended the statements to appear in evidence in a judicial proceeding, and so appearing, to cause the court to entertain an erroneous opinion regarding the compromise. In this way their offence came within the words of ss. 191/192 rather than s. 199 of the Indian Penal Code. They were thus prima facie guilty of an offence of giving false evidence or of fabricating false evidence for the purpose of being used in a jadicial proceeding.

Section 479-A lays down a special procedure which applies to persons who appear as witnesses before civil, revenue or criminal courts and do one of two things : (i) intentionally give false evidence in any stage of the judicial proceeding or (ii) intentionally fabricate false evidence for the purpose of being used in any stage of the judicial proceeding. The first refers to an offence under s. 191/193 and the second to that under s. 192/193 of the Indian Penal Code. In respect of such offences when committed by a witness, action under s. 479-A alone can be taken. The appellants were witnesses in the inquiry in the High Court and they had fabricated false evidence. If any prosecution was to be started against them the High Court ought to have followed the procedure under s. 479-A of the Code of Criminal Procedure. Not having done so, the action under s. 476 of the Code of Criminal Procedure was

not open because of sub-s. ( 6) of s. 479-A and the order under appeal cannot be allowed to stand.

In the result tho appeal succeeds and is allowed. The order for the prosecution of the appellants is set aside. The complaint, if filed, shall be withdrawn.

Appeal allowed.

• D

• F

G .-

BABAN SINGH AND ANR

JAGDISH SINGH & ORS

February 8, 1966

K. SUBBA RAO

M. HIDAYATULLAH

R. S. BACHAWAT JJ

Indian Penal Code, 1860

ss. 191, 192 and 199

Code of Criminal Procedure

ss. 476 and 419

ss. 191 and 192

Penal Code

S. 479

s. 476

s. 476

Code of Criminal Procedure

Indian Penal Code

s. 191 and 192

Penal Code

s. 479

s. 476

ss. 191

Ille Indian Penal Code

ss. 191 and 192

Indian Penal Code

s. 479

s. 476

Patna High Court

Naunit Lal

Hldayatullah

s. 476

Code of Criminal Procedure

Baban Singh

s. 199

Indian Penal Code

s. 476

Jagdish Singh

Parmhans

High Court at Patna

Dharichhan Kuer

Dharichhan Kuer

Jagdish Singh

Parmhans

June 22, 1953

Baban Singh

July 13, 1953

July 31,

1953

September 9, 1953

July 14, 1954

B. N. Rai

Kanhaiya Singh

October 5, 1956

October 9, 1956

s. 476

s. 193

Indian Penal Code

Dharichhan Ku.er

s. 479A

January l, 1956

October 5,

1956

s. 193

s. 479A

Parrnhans

s. 199

Indian Penal Code

s. 479A

s. 476

s. 4768

Jagdish

Singh

s. 476

s. 479A

ss. 476 to 479

s. 479A

s. 479A

s. 476

Section 479A

section 476 to 479

s. 191

s. 193

Indian Penal Code

Code of Criminal Procedure

s. 199

Indian Penal Code

ss. 191 and 199

Section 191

Section 199

s. 199

Indian Penal Code

s. 191

Indian Penal Code

Section 199

Section 191

s. 192

s. 191

Indian Penal Code

s. 192

ss. 191

s. 199

Indian Penal Code

Section 479

s. 191

s. 192

Indian Penal Code

s. 479

s. 479

Code of Criminal Procedure

s. 476

Code of Criminal Procedure

s. 479