8 72

MANAGEMENT COMMITTEE T. K. GHOSH'S ACADEMY A v.

T. C. PALIT & ORS.

April 9, 1974.

(P. JAGANMOHAN REDDY AND H. R. KHANNA, JJ.) B Con3ti111tion of lridia. 1950-Art. 133( 1) (a)d:(b)-Distinction beJween clause (a) and (b).

The plaintiff-respondents filed a suit for the efcctment of the defcndantappellant from the premises in dispute and for recovery of certain amount on account of arrears of rent The defendant-appellant on the other hand claimed that under the deed of trust they were entitled to occupy the satd premises

without payment of rent.

The lower court decreed the suit in favour of the plaintiffs-respondents. On a9peal the High Court set aside the decree for eject- C ment and reduced the amount for recovery.

The High Court,.granted certificate of fitness under clauses (a) and (b) of Art. 133(1) of the Constitution.

On apPeal it was contended by the respondents that the Hi_.Jl Court was wrong in granting the certificate of fitness aµd that it should be cantcned.

Dismissing the a99lication for cancellation of certificate of fitness, HELD: The appeal is maintainable under Art. 133(l)(b) of th.e Constitution.

To attrac; l the applkation of Art. 133(1)(b) it is essential that there must be a judgment' involving directly or indirectly some claim or question respecting

property or an amount or value not less than rupees twenty thousand. The variation in the language used in clauses (a) and (b) of Art. 133(1) pointedly highlights the conditions which attract the application of the two clauses. Under

clause (a) what is decisive is the amOunt or value of the subject matter in the court of first instance and ·still in dispute" in appeal to the Supreme Court : under clause (b) it is the aniount or value of the property rcspCcting which a claim or question is involved in the judgment sought to be appealed from. The expression "property'' is not defined but having regarJ to the use of the expression .. amount'' it would apparently include money.

But the property respecting which the claim or question urises must be property in addition to or other than the subject matter of the dispute. If in a proposed appeal there is no claim or question raised respecting property other than the subject matter, clause (a) will apply : if there is involved in the appeal a claim or question respectin$ pro- . perty of an amount or value not less than rupee twenty thousand in addition to or other than the subject matter of the dispute clause (b) will apply. [878 F-H]

Chhitannal v. Mis. Shah Pa111wlal Clzand11lal, [19651 2 S.C.R. 751, referred lo.

The judgment of the High Court in the present case plainly did not affirm the decision of the trial court b;?cause the High Court set aside the decree fllr ejectroent_and also reduced the amount for the recovery of which decree for ejectmcnt and also reduced the amount. for the recovery of which decree had been awarded by the trial court. The variation of the decree of the trial court was in favour of tho defendants-appellants but that circumstance would not detract from the fact that the judgment of the High Court was not one of affirmance of the decision of the trial court. In determining the character of the appellate decree what has to be looked into is the appellate decree taken in its entu-ety and compare it with the decision of the trial court as a whole and decide whether the appellate decree is one of affirmance or not. In this enqutry the nature of the variation made whether it is in favour of the intending appellant or otherwise would not be relevanl. [877 G-HJ

Tiumalachetti Rajarani v. Tirunralachelti Radlwkris/Jnayya Chell) .. , [1'62] 2 S.C.R. 452, followed.

Jn the illstant case tbe said Premises were admittedly of the value of more than rupees twenty thousand. The school premises were plainly not the subject

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MA!(AGEMENT GHFSH ACADEMY v. T. c. PALIT (Khanna, /.) 873

matter of tho dispute because if that bad been so the case would have fallen undor clauoe ·(a). On the contrary the present was a case IOlating to a claim n:ing property of the vah1e of more than rupees t\\tenty thousand. The ea:1e as such would fall within the ambit of clause ( b). [879 CJ

SIU'Qpati Roy & Ors. v. Rant Narayan Muklzerji &: Ors., .50 Indian Appeal11 15.5, relied on.

Bombay Gas Co. Ltd. v. Jagan Nalh Pandurang & Anr. [1972] 3 S.C.R. 92~, held inapplicable •

CIVIL APPJ,.LLATE JURISDICTION: Civil Appeal No. 570 ol 1969.

From the Judgment and decree dated the 29th September, 1967 of the Patna High Court in Appeal from Original Decree No. 459 of 1961. c D. P. Uniyal and S. N. Singh, for the appellant.

S. C. Agarwala, V. /. Francis and s. S. Bhatnagar, for respondent nos. 1 and 2.

The J udi:mcnt of the Cou:t was delivered h~ - -

KH.•NNA, J .. A decree for ejectment from the premises in dispute and for recovery of Rs. 7, 163/12/3 was awarded by learned Additional Sub Judge Patna in favour of the two plajntitl-respondents against the Board of Trustees T. K. Ghosh s Academy Patna and other defendants.

On appeal filed by some of the defendants tbc Patna High Court set aside the decree for ejectmcnt.

The .amount for the recovery of which decree had been awarded by the trial. court was aL; o reduced to Rs. 3,725/2/-.

The present appeal has been filed on certificate bv the Managing Comm\ttec T. K.

Ghosh's Academy and other defendants against the decision of the High Court.

The two plaintifirespondents are the sons o[ Shri Jadu Nath.

PaJit who founded in 1876 a school known as T. K. Ghosh"s Ac:.demv.

The school attracted some of the best students and Dr.

Rajendra Prasad, Dr. B. C. Roy, Mr. Hasan Imam and Mr. Sachidanand Sinha received their education in this school. The school was run in premises which originally belonged to one Mr. Boilard.

Shri Jadu Nath died in 1901 leaving behind three minor sons, two of v; bom. were the plaintiff-respondents and the third was their brother Dr. K. L. Pali!.

After Jadu Nath"s death, the management of the school was looked after bv the sons of Shri T. K. Gh<>sh in whose memory the school had bee.n founded.

Shri T. K. Ghosh was th<> brother-in-law of Shri J_a!!.u Nath.

A Managing Committee was formed bv the sons of T. K. Ghosh for the management of the school in 1905 or 1906. Nearabout 1914 the management of the school was taken over bv Shri Jadu Nath's sons.

In 1918-19 the Managing Committee of the school wa~ reformed under the directions of \he Board of Second_ary Education.

On September 11, 1919 the school building was purchased by the three sons of Shri Jadu Nath from Mr. Boi!arll as per sale deed Ex.C. On July. 28, 1930 Dr. K. L Palit sold his share in the school building in favour of his two brothers. 1iz., the plaintiff-respondents, as per sale deed Ex.CL

Ou August 13, 1950 the two plaintiff-respondents executed Deed_ of Trust Ex.P appointing Rai Bahadur Nirmal Chandra Ghosh, Retired Dis:rict and Sessions Judge and six others as trustees of the school.

The object an'd the subject matter of the trnst would be clear from . the following :

"Whereas the setljors are the proprietors ol the Hig_h l!ng1ish School named T. K. Ghosh's Academy new located in a building owned alld possessed by the settlors situated in Ma, halla Chowahatta thana Pirbahore district Patna. .

And whereas the settlors being desirous of the continuance of. the school and the perJietuation of the memory of. the person after whom it is named and the association of same with the name of the institution, of the retention in it of Bengali as a subject of instruction and also as a mttiium of instruction as far as possible and also of the improvement. extension or alteration as regards the standard and subjects of instruction in the institution as may be considered suitable for the benefit of students, have decided to settle in trust for this purpose the said school consisting of its name good will together tvith its funds, furniture, library an\! .other educational appliances and equipments as a functionin£ institution affiliated to the Patna University in the oanner and on the condition hereinafter following.

Now this Deed witnesses. as follows :-

1. In pursuance oLthe said desire of the settlors the sett1ors do hereby transfer and assign unto the trustees the S, llid High School T. K. Gosh's Academy with all that prope1ty consistin)! of the funds, furniture, library and equipments described and Uetailed ill the schedule hereto to hold the same upon trust to .fulfil the object Of the settlers and . on. the conditions and With_ and subject to the powers provisions and agreements herei!l contained."

Clauses 4, 6, 9; 10, 11 and 15 of the trust read as under : . ~'(4) -The trustees will be entitled to nominate 2 (two) . members out of. themselves, to the managing committee of the school in addition to the Headmaster who will ex-officio be a member. ·

c 61 At !east one male descendant of Ilabu Jadu Nath Palit deceased shall. if available. be always a member of the body of trustees . • ( 9) The trustees shall find other premises for the location cf the school and. shift the school there within 5 (five l -vcars of the date of the deed and vacate the present premises

to the settlors.

110) The trustees shall forthwith start a building fund for the school.· · ·

... c

E --·

JIIANAGEMENT GHFSH ACADEMY v. -T. c. PALIT (Khanna, !.) ~75

(11) The settlors will receive a house rent of Rs. 250/- per month for the said period of 5 (five) years for the premises now occupied by the school as owners of the premises.

The settlors have agreed that any surplus left over therefrom, after deducting the amount spent on necessary repairs of the house and on taxes, ground rent and other necessary outgoings in respect of the premises for the said period of 5 (five) years will go as the contribution of the settlors to the buil'ding fund as provided in the preceding paragraph, and the trustees will be entitled to receive directly from the school such surplus and deposit it in the said building fund.

(15) All matters and questions relating to the proprietary rights in the school (exclusive of the land and buildings where in the school is at present located, which does not from part of the trust property) and its properties will be disposed of by the trustees." It may be stated that the school building initially stood on holding .

No. 20. In 1951 the building was extended to holding No. 22 also.

The upper portion of the building on holding No. 22 is used for the headmaster's residence and the lower portion for running the classes.

According to the plaintiff-respondents, jt was agreed that they would be paid a rent of Rs, 37 /8 /- for the building on holding No. 22. The

total rent thus came to Rs. 287/8/- i.e. Rs. 250 for the building on holding No. 20 and Rs. 37 /8/- for the building on holding No. 22. It is fu{ther the case of the plaintiffs that in or about June 1956 it was settled by the trustees and ihe Managing Committee of the school with the consent of the plaintiffs that out of the monthly rent of Rs. 287 /8 fa cash amount of Rs. ,190/- would be paid directly to the plaintiffs. and the balance of Rs. 9718 /- could be paid by the Managing Committeeof the school to the trustees for p_ayment of latrine and water taxes of the municipality and for meeting costs of periodical repairs.

As the premises were not vacated within five years of the execution of the Ded of Trust, the plaintiff-respondents after serving notice of demand filed the present suit on July 28, 1959 against the Board of Trustees T. K. Ghosh's Academy and other defendants. One of the reliefs claimed was for ejctment of the defendants from the premises in dispute. The other relief claimed was for recovery of Rs. 7,163/12/3' on account of arrears of rent frclm August, 1956 till July, 1959 and

- -other items, the details of which were given in Schedule I to the plaint.

The suit was contested by defendants No. 2, 3, 7 and 12 in their capacity as members of the Managing Committee. The other defendants, including the trustees, did not contest the suit. According lo the contesting defendants, there was no relationship of landlord and tenant between the plaintiffs and T. K. Ghosh's Academy and its Managing Committee. It was also stated that there was no contract to pay the rent of Rs. 287 /8/- per month. The Deed of Trust was stated by the -

contesting defendants to be fraudulent, illusory and void . document.

According further to the contesting defendants, the school was founded

by the father of plaintiffs for the uplift of education and for public good with no motive to derive any personal benefit. The building was

also stated to have been dedicated by the founder for the use of the public. ·

The trial court, as mentioned earlier, decreed the suit. It was held that the Deed of Trust was a genuine and valid document and was binding on the school and its Managing Committee. As regards the existence of the relationship of landlord and tenant. the trial court held that the contract of.tenancy was evidenced by the Deed of Trust and was binding upon the parties.

In appeal before the High Court contention was advanced on behalf of the contesting defendants that there had been a dedication of the school building in favour of the school by the fat\ler of the plaintiffrespondents who had founded the school.

Argument was further advanced that there was no relationship of landlord and tenant between the parties and the Deed of Trust was not binding upon the contesting defendants. Contention was also raised that the suit for ejectment was not maintainable unless the tenancy had been determined by the giving of a notice under section I 06 of the Transfer of Property Act The High Court rejected t'ie contention that there had been dedica tion of the school building. Likewise, the contention that there did no arise the relationship of landlord and tenant between the parties was rejected. The High Court set aside the decree for .ejectment because it was of the xiew that such decree could be awarded only after determination of the tenancy by giving a notice under section IG6 of the Transfer of Property Act. The High Court further reduced the amount for the recovery of which the decree had been awarded, because it was of the view that certain deductions were permissible out of the amounts claimed by the plaintiffs. In the result the amount for which decree had been awarded was reduced to Rs. 3,725/2/7•

At the hearing of the appeal Mr. Agarwal on behalf of the plaintiff-respondents has contended that the High Court was in error in granting. a certificate of fitness for appeal to this Court in favour of the defendant-appellants. An application has also been filed on. behalf of the plaintiff-respondents for cancelling the certificate of fitness granted by the High Court. This application has been resisted by the appellants.

We may state at the outset that the High Court granted the ccrtifi cate of fitness under clauses (a) and (b) of article 133(1) of the Constitution. Mr. Uniyal on behalf of the appellants has frankly stated that the certificate could be granted only under clause

(b) and not under clause (a). We agree with Mr. Uniyal in this respect. and are of the opinion that there is no sufficient ground for cancelling the certificate of fitness.

The plaintiff-respondents. as would appear from the resume o[ facls given above, had prnyed fqr a decree of ejcct1ncnt fron1 the pr.:1nises in dispUic and for r:'CO\'ery of J{s. 7.163 1 76 -. rh.: jurisdictional \'~1luc of the suit was mentioned to be Rs. 10.613/76/- consisting of the amount of Rs. 7,163/76 and Rs. 3450 representing 12 months rent at the rate of Rs. 287/50. The present case did not fall under clause

(a) of article 133(1) because it could not be said that the amount or

1,!ANAGEMENT GHOSH ACADEMY v. r. c. PALIT (Khanna, J;) 8 77

value of the subject-matter of the dispute was not less than twenty thousand rupees. Question then arises whether the defendant-appellants were entitled to certificate under clause (b) of article 133(1).

Article 133(1) at the relevant time read as under: ·

"133 (1) An appeal shall lie to the Supreme Court lrom any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies- { a) that the amount or value of the subject-matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees or such other sum as may bi' specified in that behalf by Parliament by Jaw; or

(b) that judgment, decree or final order involves direct!)' or indirectly some claim or question respecting properti of the like amount or value; or ( c) that the case is a lit one for appeal to the Supreme

Court;

and, where the judgment, decree or fincl c:oer appealed fron:i affirms the decision of tbe court i:nrr; cdiately below in any case other than a case referred to in sub-clause ( c) if the High Court further certifies tbat the &ppeal involves some substantial questio:i of law." It may be stated that there has been a subsequent amendment of article 133(1) by the Constitution (Thirtieth Amendmont) Act,

1973. We are, however, in the present case concerned with the article as it stood before the amendment. Perusal of clause (b) of article 133 (I) shows that an appeal shall lie to this Court from any judgment, decree or final order in a civil proceeding of a High Court if the High Court certifies that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the value of not less than twenty thousand rupees. It is further necessary that where the judgment, decree or final order appeal.id from affirms the decision of the court immediately below, the High Cotirt should certify that the appeal involves some substantial question of law. The judgment of the High Court in the present case plainly did not affirm the decision of the trial court because. the High Court set aside the decree for ejectment and also reduced the amount for the recovery of which decree had been awarded by the trial court. It is no doubt true that the variation of the decree of the trial court was in favour of the defendant-appellants but that circumstance would not detract from the fact that the judgment of the High Court was not one of affirmance of the decision of the trial court. As observed by the Constitution Bench of this Court in the case of Tirumalachetti Rajamm

v. Tirimwlachetti Radhakrishnayya Chelly( 1). in delerntining the character of the appellate decree, we have to look at the appellate decree taken in its entirety and compare it with the decision of the !rill court

(I) [1962] 2 SCR 452.

. as a whole and decide whether the appellate decree is one of affirmance or not. In this enquiry the nature of the variation made whether it is in favour of the intending appellant or otherwise would not be relevant.

As regards the applicability of clause (b) of article 133(1), we may obser\'~ that there is a vital distinctiori between clauses (a) and

(b) of article 133(1) and the areas covered by the two clauses are clearly demarcated. Clause (aJ speaks of the subject-matter of the dispute and what is required by the clause to bring a case within its ambit is that the amount or value of the subject-matter of the dispute in the court of first instance and still in dispute was and is not less than twenty tl; ousand rupees or such other sum as may be specified in that behalf by Parliament by law. As against that, clause (b) of Article 133(1) makes no mention of the subject-matter of the dispute and it is immate:ial for this clause as to what is the amount or value of the subject-matter in dispute. What is essential to invoke clause (b) is that the judgment, decree or final order should involve directly or indirectly some claim or quesiion respecting property of the amount or value of not less than tv.:enty thousand rupees or such other sum as may be specified in that behalf by ParEament by law. Clause (b) thus deals with a claim or question respecting property. If a judgment, decree or final order inYolves claim or question respecting property and it is shO\Vn that the property is of the an1ount or value of not less than twer,!y thousand rupees. the clause would be attracted. It is plain fror,1 the language of clause (b) that the property respecting v.; hich cJai:-n or question i.s involved in the judgn1cnt, decree or final order is r.ci the subject matter of the dispute, ior if that property were the subject matter of the dispute the case would fall not under clause

(b) but under clause (a) of artick 133(1). It may also be mentioned that the requirement of clause (b) would be satisfied if the judgment, decree or final order involves, not directly but even indirectly, some claim or question' respecting property of the amount or value of not less than twenty thousand rupees.

To a<lract the application of article 133 (I) (b) it is essential that there must be-omitting fron1 consideration other conditions not material-a ju<lg:inent involvin~ directly or indirectly some claim or question respecting property of an amount or value not less than Rs.20,QOG.

The vari<1tion in the JanQuac used in clauses (a) and (b)of article 133 poir.tedly highlights -theconditions which attract the app'icati0-1 of the t\\'O clauses. Under clause (a) y, rhat is decisive is the nn1ount er value of the subject-matter in the court of first instance and ''still in

dispute" nrpeal to the Supreme Court : under clnuse (b) it is the amount er \'alue of the property respecting \Vhich n c1aim or qtcstion

j') in:volvc<l in the judg1nent sough_t to b:: appe1.lled fr?1n The cxpr.;:s sion 'propcrty".'is not defined in. the Code, but hav1n~ regard to Lhc us;:: of the expression "an1oun~" 1t wou]~ apparcnty incl.udc 111on:J'- But the property respecting \Vlnc~ the cla1n1 r question arises rn_ust be

property in addition to or other tnan the subiect-mattcr _of the d1spte.

If in a proposed appeal thc1:-::: is no claim or quesho~ ra1s1::<l rcs.cct1ng property other than the ub1c.1-~1atter, clai.; c (al \VIII .apply: H there is invohrcd in the appeal a c1a11n or question respecting property of

MANAGEMENT GHOSH ACADEMY v. T. c. PALIT (Khanna, J.) B79

an amount or value not. less than Rs. 20,000 in addition to or other than the subject-matter of the dispute clause (b) will apply (see Chhitarma/ v. "M/s Shah Panna/al Chandu/al(1).

Keeping the above principles in view, we have no doubt that the .:ase of the appellant falls under clause. (b) of article 133(1). As would appear from the resume of facts given earlier, the case of the plaintiffs was that the defendants were liable to pay rent for being .in occupation of the school premises. As against that, the case of the defendant-appellants was that they were entitled to occupy the &afd premises for carrying on the school without payment of rent. It is manifest that the judgment and decree of the High Court as well as the trial court involved a claim or question respecting the school prcmisea: The said premises are admittedly of the value of more than

rup<:es twenty thousand.

Th.o school premises were plainly not the subject-matter of the dispute because if that had been so, \It• case would have fallen under clause (a). On the contrary, the present was a case relating to a claim respecting property of the value of more than rupees twenty thousand. The case as such would fall within the admit of clause (b). We may in this context refer to a decision of the Judicial Committee in the case of Surapati Roy & Ors. v. Ram Narayan Mukherji & Ors.( 2 ). Question which arose in that case was regarding the validity of a certificate granted by the High Court under section

110 of the Code of Civil Procedure. Though the rent claimed in the suits was less than Rs. 10,000 the High Court granted a certificate of fitness.

Objection was taken before the Judicial Committe, e regarding the validity of the certificate on the ground that the subject-matter was of a value of less than Rs. 10,000. The objectioµ was repelled by the Judicial Committee in the following words :

"The subject matter in dispute relates to a recurriny liability and is in respect of a property considerably above the appealable value. The certificate in the circumstances is

quite in order."

Reference has been made by Mr. Agarwal to the_ decision of this Court in the case of Bombay Gas Co. Ltd. v. lagan Nath Pa11durang & Anr.('). The respondent in that case filed applications under the

Payment of Wages Act claiming overtime wages for the period 1957 to 1958 and wages for weekly off days for the period 1962 to 1963.

The appellant filed appeal to this Court against the judgment of the High Court setting aside the order of the appellate authority holding the claim to be time-barred. The appeal was filed on the basis of a certifica.te under article 133(1)(b). It was held that the certificate issued by the High Court under article 133 ( l) (b) was not proper.

Question was posed in that case that the certificate could be granted under the above clause as there was a recurring liability which if calcuMed for subsequent yeors would come to Rs. 20,0CO or more.

This Court was not impressed with the above argument. The said case

(I) (19651 2 SCR 751.

(3) (1972] 3 SCR 929.

I l-84SupCi/75

(2) 50 Indian Appeuls 155.

cannot be. of much assistance to, the. plaintiff-respondents _because in that case there was .no claim' or question respecting property of the A value of more than Rs.' 20;000 .. in he preSent case we have both the elements, namely, of a recurring claim and of a claim in respect of property of the value of more than Rs. 20,000. We, therefore, hold that the appeal is maintainable under article l33(1J(b) of the Constitu- . tion. The application for cancellation ct. the certificate of fitness granted by the High Court is dismissed. _

Coming to the merits of the appeal, we find that till the execution of the Deed of Trust on August 13, 1950, the school in question was treated as a proprietary school. This is clear from the inspection note dated December 10, 1947 of the Inspector of Schools. According to the inspection note, this institution was a proprietary school and the proprietors made good any deficit that accrued in running the school efficiently. In the annual statement dated January 8, 195Q relating to the school which had to be furnished by the school authorities to the Board of Secondary Education, it was mentioned that the proprietors of the school were the plaintiff-respondents. It was by Deed .of Trust dated August 13, 1950 that the plaintiff-respondents transferred and assigned to the trustees property consisting of the funds, furniture, library and equipment described and detailed in the Schedule to the Trust Deed. The Trust Deed, however, made it clear that the land and building wherein the school was located did not form part of the trust property. As the school did not own any building of its own and was being run in the building belonging to the plaintiff-respondents, it was reSolved by the trustees that efforts be made for acquiring land for the school building and for collecting and depositing funds for the . co!l!truction of the building. This is clear from the resolutions passed in the meetings of the trustees held on May 21, 1951 and April 20, 1952.

It has been argued on behalf of the appellants that no liability for . payment of rent call. be fastened upon the defendants and that the High Court was in error in holding to the con(!:ary. There is, in our opinion, no force iti this contention. It has been proved upon the material on record that the Managing Committee has been receiving deficit grants from the Government on the basis of statements showing house rent payable by it for school building to be Rs. 250 plus .. Rs. 37.50 per

month. In view of the fact that the school receives grant from the Government on the representation that an amount of Rs. 287.50 has to be paid on account of house rent, it hardly lies in the mouth of the appellants to assert that there is no liability for the payment of rent for the school building. Jn. addition to that, we find that the Managing

I \J -,

:. __

MANAGEMENT GHOSH ACADEMY "· T. c. PALIT (Khanna, /.) 881

Committee in its resolution'/passed in the meeting held on December 23, 1954 admitted that an amount of Rs. 287.50 was to be paid as rent to the proprietors for the school premises including the portion in the occupation o.f the headmaster. The fact that rent of Rs. 287.50 wns agreed to be paid for the school buildings was also ment:oned in the audit report relating to the school for ihc period April 1956 to October 1956.

Jn view of the above material, we find no cogent ground to interfere with the judgment of the High Court maintaining decree for recovery of money to the extent of Rs. 3,725/2/· in favour of the plaintiff-respondents. The appeal consequently fails and is dismissed, C but in tl1c circumstances \Vithout osts.

P.B.R.

Appeal dis111iset1.

T. C. PALIT & ORS

April 9, 1974

P. JAGANMOHAN REDDY

H. R. KHANNA, JJ.

Art. 133( 1)

Art. 133(1)

Art. 133(l)(b)

Art. 133(1)(b)

Art. 133(1)

Supreme Court

[1972] 3 S.C.R. 92

D. P. Uniyal

S. N. Singh

s. S. Bhatnagar

KH.•NNA

Patna High Court

Jadu Nath

T. K. Ghosh"s

Rajendra Prasad

B. C. Roy

Hasan Imam

Sachidanand Sinha

Boilard

K. L. Pali

Jadu Nath"s

T. K. Gh<>sh

T. K. Ghosh

J_a!!.u Nath

September 11, 1919

Boi!arll

July. 28, 1930

K. L Palit

August 13, 1950

Rai Bahadur Nirmal Chandra Ghosh

Patna University

Ilabu Jadu Nath Palit

July 28, 1959

Board of Trustees T. K. Ghosh's Academy

Schedule I

Transfer of Property Act

Transfer of Property Act

Agarwal

article 133(1)

Uniyal

s. 7

article 133(1)

article 133(1)

Article 133(1)

India

Parliament

Supreme

Court

article 133(1)

article 133

Constitution Bench

Tirumalachetti Rajamm

[1962] 2 SCR 452

article 133(1)

article 133(1)

Article 133(1)

article 133

article 133

article 133(1)

section

110

the Code of Civil Procedure

Payment of Wages Act

article 133(1)(b)

article 133

(1972] 3 SCR 929

December 10, 1947

January 8, 195Q

May 21, 1951

April 20, 1952


STATE OF MYSORE

C. R. SESHADRI & ORS.

January 10, 1974

(V.R. KRISHNA IYER AND R.S. SARKARIA, JJ.]

Civil Serrice-Promotion-Duty of Executive and Courts ill rt/Mtion thereto.

The respondent came into Class I post from October 2.,, 1946. From that daY till July 23, 1954, he was Private Secretary to three ministers. Without giving credit for bis service as Private Secretary his immediate junior was promoted as Deputy Secretary, The respondent filed a writ petition in the High Court praying that the order denying him credit for service as Private Secretary may be quashed and for a direction for payment of such amounts as he would have got had bis due inttr 1; e seniority and promotion been accorded to him. The High. Court granted both the reliefs,

Jn appeal to this Court,

HELD : (i) The High Court was right in holding that the respondent '6'as catitlcd to count his service from October 27, 1~6, for fixation of his seniority in the gradatioo list. •

(2) The High Court, however, erred in directing the appellant to give the respondent notional promotion as Deputy Secretary with effect from the date on whiclt his junior secured such promotion and for payment of the excess salary accruini to him on that footing.

The power to promote an officer bClongs to the executive and the judicial power may control or review government action but cannot extend to acting as if it were the Executive. The proper direction therefore, can only be that the government should reconsider the case of the respondent afresh for purposes of notional pi:omotion. If the set\licc rule entitles him to promotion on the ground of seniority

alone, Government should, except for the strongest reason, grant the benefit of promotion with effect from the date when his junior became Deputy Secretary especially, because, nothing had been suggested against the respondent in his career to disentitle him to promotion. However, if the criterion for promotion is one of seniority-cum-merit comparative merit may ha,•e to be assessed if length of service is equal, or an outstandmg junior is available for promotion. [88F)

(3) The appellant State should apply to the respondent the same rule of pro motion as was applied to his junior and not to act adversely without giving him u opportunity. Since the respondent had retired from service, the appellant shoultl a1so consider promptly bis claim and make payment to hint of what is due to hi.a without further delay. [91A]

Stace of Mysore v. Syed Malunood, [1968) 3 S. C.R. 363, 366 and State nf MysDl't

v. P. N. Nanjlllldiah, [1969] 3 S. C. C. 633,637 followed.

(4) The appellant's inexplicable indifference is not placing before the Court the relC\'ant rule regarding Promotion to the post of Deputy Secretary merits the order that the appellant should pay the costs of the respondent even though the appeal is partly allowed.

CIVIL

APPELLATE

JURISDICTION of 1968.

Civil Appeal No. 175

H From the judgment and order dated the 28th July 1967 of the Mysore High Court at Bangalore in Writ Petition No. 2378 of 1965.

V.S .. Desai and M. Vurappa, for the appellant.

B.R.L. Jyangar, S.S. Javali and A.G. Ratnaparkhi, for respondent No. J.

The Judgment of the Court was delivered by

KRISHNA IYER, J. The State of Karnataka, appellant bcforo

ns has raised two contentions, the first being the more B

mterial but less meritorious and the second secondary but substantial. The first respondent herein filed a petition under art. 226 seeking several reliefs including (a) the quashing of an order denying him credit for service while he was Private Secretary to three Ministers beginning from October 27, 1946 till July 23, 1954 (with minor interruptions when he served in other capacities, an inconsequential circumstance in this case) when he was n1ade C Assistant Secretary, and (b) a direction for payment of such amounts as he would have got had his due inter se seniority and promolio11 been accorded to him. The High Court granted both reliefs and they are challenged in this Court. There is no doubt, on the pleadings and indubitable evidence on record, that the petitioner came into a Class I post from October 27, 1946 and hi.s claim to service since then running continuously, is undeniable. Learned counsel for the appellant D has fairly and rightly conceded the legitimacy of this claim. Indeed, the State Government had accepted the petitioner's right based on the equivalence of the past of Private Secretary and of Assistant Secretary but the Central Government did not agree, and when confronted in Court with overwhelming proof pleaded apologetically that they were not in possession of the full facts when rejecting the petitioner's seniority plea. We affirm that the first respondent is entitled to count hh ser- E vice from October 27, 1946 for fixation in the gradntion list.

Flowing from this finding is the direction by the High Court to give the p•titioner notional promotion as Deputy Secretary with effect from the date on which one P. Venkataraman, next below him, secured such promotion and for payment of the excess salary accruing to him on that footing. This part of the judgment is attacked as F beyond the power of the Court. We see the soundness of this submission. In our constitutional scheme, a broad three-fold division exists. The power to promote an officer belongs 10 the Executive and the judicial po\ver may control or review government action but cannot extend to acting as if it were the Executive. The Court may issue directions but leave it to the Executive to carry it out. The judiciary cannot promote or demote officials but may demolish a bad G order of Government or order reconsideration on correct principles.

What has been done here is in excess of its jurisdiction. Assuming the p.!titioner's seniority over Venk.ataraman, how can the Court sav that the former would have been, for certain, promoted ? Basica1!);. it is in governn1ent's discretionary power, fairly exercised to pro1note a government servant. If the rule of promotion is one of sheer senio~ rity it may well be that promotion is a matter of course. On the other 11 hand if seniority-cum-merit is the rule, as in the Supreme Court decisions cited before us, promotion is problematical. In the absence of positive proof of the relevant service rules, it is hazardous to assume

MYSORE V. C. R. SESHADRI (KRISHKA IYER, J.) 89

that by effiux of time the petitioner would have spiralled up to Deputy Secretaryship. How could we speculate in retrospect what the rule was and whether the petitioner would have been selected on merit and on the strength of such dubious hypothesis direct retro-active promotion and back pay? The frontiers of judicial power cannot be stretched thus for. The proper direction can only be that government will re-consider the case of the petitioner afresh for purposes of notional promotion. If the service rule entitles him to promotion on the ground of seniority alone, Government will, except for the strongest reason grant the benefit of promotion with effect from the date Venkataraman became Deputy Secretary. Nothing has been suggested against the petitioner in his carrier to disentitle him to promotion and we have no doubt Government will give him his meed. However, if the criterion for promotion is one of seniority-cum-rneriti comparative merit may have to be assessed if length of service is equal or an outstanding junior is available for promotion. On the facts before us, there is no reason to regard the petitioner's eligibility on merit for

Deputy Secretaryship to be denied or delayed when Venkataraman was promoted.

Counsel for, the State made reasonable efforts to help the Court with the relevant rule but his client's cooperation was not forthcoming.

We direct the appellant to apply to the first respondent the same rule of promotion as :Was applied to Venkataraman and, to be fair enougl1, not to act adversely without giving him an opportunity. In the light of the State's reluctance to produce the rule we almost think the High Court order is substantially just. Even so, it is for the Government to promote with retrospective effect.

We, therefore, set aoide the second part of the High Court's order in the judicial hope that justice wi\\ be done to the petitioner.

1, The pragmatic limitation on judicial power we have set is not novel but traditional, as is evident from the two recent rulings of this Courtboth rendered in appeals from the Mysore High Court-where probably judicial promotion of executive officers was perhaps not viewed as an avoidable encroachment.

In State of Mysore v. Syed Mahmood(!). Bachawat J., speaking Jor the Court, held in a case where the promotion of an officer -was

involved that the proper direction should be that the State Government should "consider the fitness of Syed Mahmood and Bhao Rao for promotion in 1959 .... The State Government would upon such consideration be under a duty to promote them as from 1959 if they were then fit to discharge the duties of the higher post and if it fails to perform its duty, the Court may direct it to promote them as from 1959." The Court concluded in that case thus :

"We direct the State Government to consider whether Syed Mahmood and Bhao Rao should have been promoted to the posts of senior statistical assistants on the relevant dates when of!i,-crs junior to them were promoted, and if so, what nsequential monetary benefits should he allowed to thCnl\" '(iJ [1968)3 S.C.R. 3~. 366.

Similarly, in State of Mysore v. P. N. Nunjundioh(I), Ramaswami, J., speaking for the Court, dealt with a service dispute and wbilc agreeing with the substantive conclusion of the High Court_modified the order in so far as the promotion was ordered by the Court. The learned Judge observed :

"The argument. was stressed on behalf of the appellants that in any event the High Court was not right in issuing a writ of mandamus "directing the appellants to promote res pondent No. 1 as Overseer with effect from February 1, 1961 and as Supervisor with effect from April 1, 1963 and to give him all consequential benefits. In our opinion there is justification for this argument. It has been pointed out by this Court in Tire State of Mysore v. Syed Mahmood and others (supra) that in matters of this description the High Court ought not to issue writs directing the State Government to promote the aggrieved officers with retrospective effect. The correct procedure for the High Court was to issue a writ to the State Government compelling it to perform its duty and to consider whether having regard to his seniority and fitness the 1st respondent should have been promoted on the relevant date and so what consequential benefits should be allowed to him. In the present case we are informed that both respondent No. I and respondent No. 2 have been promoted as Overseers after the filing of the writ petition. In the circumstances we consider that proper course is to issue a direction to the appellants to consider whether the respondent No. 1 should have been promoted to the post of Overseer with effect from December 1, 1961 and as a Supervisor with effect from April 1, 1963, what should be the relative seniority as between respondent No: 1 and respondent No. 2 and what consequential benefits should be allowed to respondent No. I".

We respectfully agree with the guideline furnished by these two decisions which fortify the view we have taken.

While we agree that the High Court has been impelled by a right judicial instinct to undo injustice to an individual, we feel that a finer perception of the limits of judicial review would have forbidden it from going beyond directing the Jlxecutive to reconsider and doing it on its own, venturing into an area of sunnisc and speculation in regard . to the possibilities of escalation in service of the appellant. Judicial expansionism, like allowing the judicial sword to rust in its armoury where it needs to be used, can upset the constitutional symmetry and damage the constitutional design of our founding document.

The length of this litigation has really disappointed the petitioner by denying him the enjoyment of likely promotion. He retired the day before the judgment of the High Court. No one in service would be affected by the allowance 'of the petitioner's claim and what was a service issue has now been reduced. to one of money payment. A retired government official is sensitive to delay in drawing monetary benefits. And to avoid posthumous satisfaction of the pecuniary

(l) [196913 s.c.c. 633, 637.

MYSORE v .. C. R. SESHADRI (KRISHNA !Yl!I\, J.) 91

expectation of the superannuated public servant-not unusual ill' government-we direct the appellant to consider promptly the claim of the petitioner in the light of our directions and make payment of what is his due-if so found-on or before April 15, 1974. The government's inexplicable indifference in not placing before the Cour~ (he relevant rule regarding promotion to the post of Deputy Secretary merits the order that the appellant pay the costs of the petitioner/ first respondent ; for, the wages of winner's sloth is denial of costs, and something more.

In the result the appeal fails in the first part and is allowed in the latter part on the lines indicated above and subject to the direction& regarding costs just stated. ·

Apptal partly aUowtd:-

V.P.S.

STATE OF MYSORE

C. R. SESHADRI & ORS

January 10, 1974

V.R. KRISHNA IYER

R.S. SARKARIA, JJ.

[1968) 3 S. C.R. 363

V.S .. Desai

M. Vurappa

B.R.L. Jyangar

S.S. Javali

A.G. Ratnaparkhi

KRISHNA IYER

State of Karnataka

art. 226

October 27, 1946

July 23, 1954

Central Government

P. Venkataraman

Venk.ataraman

Supreme Court

KRISHKA IYER

Venkataraman

Mysore High Court

Syed Mahmood

Bhao Rao

Ramaswami

1, 1963

1, 1961

April 1, 1963


GANGA BAI v.

VIJAY KUMAR & ORS . . April 9, 1974.

[M. H. BEG AND Y. V. CliANDRACHUD, JJ.]

C.P.C.-Anrendnrent of the fe1110 of Appeal after 7} years lvitho1.et any application of condonatio11 of delay or good cause sho1vn-Whether proper- Appeal againrt a 111ere /illding of fact-iV/iether niaintainable. - .

In 1953~ defendant 1 executed on behalf of himSelf and his minor son, defendant 2, a deed of mortgage in favour of the plaintiff. Deft. 3 ls also a son of deft; 1 who was born after the mortgage deed. In 1956, a regd. deed of partition \\'as executed amongst the defendants under which the mortgaged property ..._ \Va'> allotted to the share of <lefts 2 & 3.

Thereafter, the mortgagee filed a civil suit to enforce the niortgage and the trial court passed a preliminary decree for sale of deft. l's interest in the mortgaged property. It held that part of the consideration for the mortgage was not su.pported by legaL necessity and the balance of the debt incurred was tainted '\\-ith immorality. Therefore; the debt was. held not binding on the one half share of deft. 2 in the mortgaged property .. As regards the partition, the trial court held that it was a colourable transaction effected to delay or defeit the creditors. · D

Being aggrieved, pltf. filed an appeal (40/59) in the I-Ugh Court. Deft. 1 & 2 against '\Vhom the suit was dismissed, also filed an-appeal (72/59) apinst the tir:zdi'ng of the trial court that the partition \•las a colourable transaction.

During the pendency of these 2 appeals, the preliminary decree was made final by the trial court and in 1960, the plaintiff purchased with the permission of the court. a joint half share of the mortga£; ed property in full satisfaction of his decree. Thereafter, the auction sale \Vas confirmed and the laintiff '\Vas put in E joint possession of the property. - ·

Thereafter, the appeals filed by theplaintiff and defendants 2 and 3 came up for hearing and while the appeals were part-hard, defts 2 & 3 applied on August 2, 1966 (nearly 71; years after filing the appeals). applied for amendment of their

femorandum of appeal in first appeal No. 72/59 and sought permission of the I1igh Court to challenge the preliminary decree passed by the trial COurt. The plaintiff opposed that amendment and applied that she did not desire to prose cute first appeal No. 40/59 filed by her.

The High Court did not pass any orders either on the application for amend n1cnt or the plaintiff's appeal, but adjourned the hearing of the appeals for 3 mouths to enable defendants to pay the am_ount due under the preliminary decree.

Accordingly the defendants deposited the money towards the satisfaction of the preliminary decree .

. 1\fter about 2 years, another dhision bench of the High Court, alJov.ed the amendments of the defendants' iremo of Appeal in .1\ppeal No. 72/59 ancl G

allowd time to the 'defendants to pay the deficit Court fee. which they paid. The High Court,"then took the 2 appeals for hearing and dismissed appeal No. 40/59 for non-prosecution and confirmed the findings of the trial court in favour of the defendants.

 As regards appeal. No. 72/59, the High C.ourt held that in vfew of Order 41, Rule 2 C.P.C., it '\Vas open to the de_fendants. '\Vith the leave of the court, to urge additional grounds without amending the Pwiemo of Appeal and therefore, the objection raised by the plaintiff that amendment should not be allowed, cannot

I ( l:io upheld'. 1.be High Court further held that the defendant-." appeal was com~ pctent :l.nd they had the righ, t to reeeem the mortgap:e.

On the merits. the Hib Cburt held that the partition '\\'as real and genuine. In the result. the High Court :set aside the preliminary decree as also the fmal demea11d with it the auction

GA.:<:GA BAI v. VJJAY KUMAR (Chmuf!'.aclzud, I.) 883

A sale in favour of 111~ plainliff. The High Court passed a fresh preliminary Jecree under order 34, Rule 4 C.P.C .• directing that that the plaintiff was entitled

to recover Rs. 34,~8~/- and odd .and directed the defendants to pay the entire decretal amount '''Ithrn 6 months of th~ date of decree. 1he plaintiff questions the correctness of the decree bfore this Court.

The appeal filed by defendants 2 & 3 \Vas against the finding recorded by the trial court that the partition between deft. 1 and hi" sons was a colourable trru:Jii;-

nci'?n. Therefori;:, 1t V.'as clear that the appeal filed by defts. 2 & 3 \Vas directed

ortnafly not against any part of the preh, ninary decree but again'it a mere .fin.ding recorded by the trial court that the partition was not genuine_ Before this Court, the main question v:as whether that appeal was maintainable and secondly, whether it \\as prOper for the High Court to allO\V the amendment of the -!\Iei:no of appeal after 71 years \vithou: good cause shown and without any . application for condonatton of delay .. A1Iov11ng the appeal,

l!ELD: (i) There is a basic distinction between the right of suit and the right oi' appeal. There is an inherent right in every pers0n to bring a suit of . a civil nature, but the right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. . The various provisions in the C.P.C. show that under the CO('e, an.appeal lies only as against a decree or as against an orderpassed under rules from which -an appeal is expressly allowed by Order 43, Rule 1. No appeal can lie against a mere finding for the simple reason that the Codes does not provide for any such appeal. Therefore, the first appeal filed by defendants 2 and 3 in the High Court was not maintainable :as it was directed againt a mere finding record.:d by the trial court. [886 D-HJ

(ii) The Hi_gh Court should not have allowed the amendment of the ?vferno of Appeal particularly when de_fendants 2 & 3 had neither explained the long- Je1ay nor sought its condonation.

Defendants 2 & 3 \Vere not denied by - t.'le preliminary decree the right to pay the <lecretal amount and the t\vo defen<lan.ts could even have applied under order 21, Rule 89 for setting aside the sale in fa':our .of the appellant; but they failed to do so. The prelimil!ary tl:cree had remained unchallenged since September., 1958 and by lapse of time a valuabJe ri.!!ht had ;<1.ccn1ed in favour of the decree-holder. Therefore, to allow the amend-· ment after such a long time \\rithout a good cause was not a yropcr exercise of judicial discretion in the circumstances r.:f te cas_e. [888 D-E

f'JVIT. APPEi I.ATE. JURISDICTIO" : Civil Appeal No. 582 of 1969 .

. Apreal from the Judgment' anll Decree dated the 19th March, 19(>8 o( the Bombav Hi!!h Court at Na_gpur in Firot Appeal No. 72 of 1959. - M. N. Phadke, R. A. Gupta and K. B. Rohalgi for the Appellant.

B. i\". Lokur, Arwz Kumar Sanglzl and A. G. Rat;; aparklz(for the R<;!'pondents.

The Judgment of the Court was delivered by- CHANDRACHUD, J. This is a plaintiff's appeal on a certificate granted by the Hi_gh Court of Bombay, Nagpur Dor.ch, under Artick

133(i)(al of the Constitution_

On March 24,· 1953 defendant 1 executed on behalf of himself and his minor son defendant 2. a deed of mortgage in favour of the pfaintiff.

Defendant 3 is also a son of. defendant 1 but he was born.

aftr the mortgage deed. on September 30, 1955. On January 11, 1956 a t\~£:lstcrctl deed of partition was cxecured amongst the defendants un<ler which the mortgaged property was allotted to the share of defendants-~ and .3. ·

On September 1, 1956 the mortgagee filed Civil Suit No. 3A of 1956 to enforce the mortgage. On September 20, 1958 the trial court passed a preliminary decree fc~ sale of defendant l's interest in the mortgaged property. It held that part of the consideration for the mortgage was not supported by legal , necessity and the balance of the debt incurred on the mortgage was tainted with immorality. Though, therefore, defondant 1 had executed the mortgage as a manager of the jcpnt Hindu family consisting of himself and defendant 2, the debt was hel.d not binding on the one-half share of defendant 2 in the mortgaged property.

On the issue relating to the genuineness of the partition eiiected by defendant 1 between himself and his suns, the trial court r!X'<}rded a finding that it was a. sham and colourable transaction and

its obiect was to delay or Uefeat the creditors.,

Being aggrieved bv. the ..decree directing the sale cf half the mortgaged property only, the jllaintiff filed First Appeal No. 40 of 1959 in the High Court of Bombay. Though the suit was dismissed as against defendants 2 and 3, they also filed an appeal in the High Court to

chllilenge the finding of the trial court that the deed of partition was a sham and colourable transaction.

That was First Appeal No. 72 of 1959 ..

During the pcndency of these two appeals, the preliminary decree was made final by the trial court on October 23, 1958. On March 2,

1960 the plaintiff purchased, with the permission of the court, a joint half share in the mortgaged property in full satisfaction of his decree.

On September 21. 1960 the auction sale was confirmed and on l\ovcm- . • ber 25. 1960 the plaintiff.w.as put in joint possession o( the property.

On March 15. 1966 th.e aPjlC.:.tls filed by lhe plaintiff and by defendants 2. a_nd 3 came up for hearing before a Division Bench consisting of Abhyinkar and Deshmukh JJ. The hearing of the appeals was adjourne!d from time to timi: and while the appeals were part-heard, . defendant• 2 and 3 applied m August 2, 1966 for amendment of their Mcmorondum of Appeal in~First Appe"al No. 72 of 1959. Bv the pr()l)osed amendment they sought leave of the High Court t'l challenge the preliminary decree passed by the trial court. The plaintiff opposed that amendment and applied that she did not desire to prosecute Erst Appeal No. 40 of 1959 filed by her.

The High Court did not pass any orders either on the application for amendment made by defendants 2 and 3 or on the application of the plaintiff asking that her appeal be dismissed for non-prosecuticn.

On August 24, 1966 the High Court adjourned the hearing of the appeals for three months to enable defendants to pay the amount due under the preliminary decree. On November 24, 1966 defendants 2 and 3 deposited Rs. 12,500 and applied for an extension of two mcilths for paying the balance. The extension was granted by the High Court

and on January 25, 1967 'defendants 2 and 3 deposited a further sum . of Rs. 25,000 towards the satisfaction of the preliminary decree.

On Februarv 1¢. 1968 another Division Bench of tite High Court (Tambe and Badkas, JJ.) allowed the application of defendants 2 and 3 for amendment of their Memorandum of Appeal in Frrst

•• c

GANGA llAI v .. VIJAY ll:UMAR (Chandrachud, /.) 885

A Appeal No. 72 of 1959. On an application made by their counsel, the High COurt granted !Cf those defendants time till February 2:i, 1968 io pay the deficit court fees, which they did. The High Court then took up the two F1tst Appeals for hearing in March, 1968.

As the plaintiff bad applied that she did not desire to proceed with First Aooeal No. 40 of 1959 filed by her, the Hii::t, Court dismissed

that appeal for non-prosecution. As a conseq'uence of this order the Hil!h Court observed that the findings recorlled by the trial court

in favour of the defeltiants and adverse to the plaintiff would stand confirmed. '

In First Appeal No. 72. of. 1959 filed by defendants 2 and 3 it was uraed bv the plaintiff that as the ai>Peal was originally filed to challenire the. findina of the trial co1'rt on the question of genuinene1& of the partition. defendants 2 and 3 were not .mlilled to include new

ounds in the Memonutlum of Appeal and that the Memorandum

should not have been pennitted to be amended. 'the High Court he'd that in view of the provisions of Order 41, Rule 2, Civil Procedure Code. it was OPCn to fendants 2 and 3, with leave of the court, to urge additional grounds in their appeal without amending the Memorandum of appeal and therefore the objection raised by the plaintift as

against the amendment was futile.

The Hiah Coutt further held that the appeal filed by defendants 2 and 3 was competent even thoURh the suit was wholly dismissed as against them.

Accordina to the High Court, defendants 2 and 3 were aeerieved by t'ie adverse lindilllt on the question of partition nnd further they were denied under the preliminary decree the right to pay the decretal anionnt and to redeem the mortage. It was therefore ooen to them. to file an appe3! a1ainst that decree.

On the merits of the ap; ieal •. the High Court set aside the findinf, of tbe tr•a! court and h!l1d that the partition was "real .and enuine'

nd that it was not effected in order to defe•t 'he creditors. Defendants 2 and. 3 had therefore be<xlme owners of th' equity of redemption and they could not be deprived of the right to re<leem the mortgage.

In the result, the High Court set aside ihe, preliminary decree as also the l\nal decree and with it the auction s3Ie .in favour of the plaintiff. The High Court passed a fresh preliminary decree under Order 34, Rule 4, Civil Procedure Code declaring that the plaintiff was entitled to recover Rs. 34, 386 and odd and directing the defendants to pay the entire decretal amount within six months of the date of decree.

The plaintiff questi011s the correctness of that decree in this appeal.

H It is necessary first to understand the nature of the appeal filed by defendants 2 and 3 in the Hi$ Court and the relief they soUMt therein. That appeal WllS in terms filed only ainst the finding 'recorded by the trial court that the partition between. defendant 1 and his llOllS was a sham and colourable transaction intended to defeat or delav the

cre<litors. The Memorandum Of Apoeal as filed orinally contained

seven grounds, each of which was directed against the findin& , lliven by the trial court on the question of partition. The Memorandum contained a note that as the subject-matter in dispute was not capable of being estimated in tenns of a money value, a fixed court fee of Rs. 20 was paid thereon. Only one prayer was originally made in the Memorandum of Appeal that the partition deed be declared as genuine.

Counsel for defendants 2 and 3, furnished to the registry of the High Court a written explanation as required by Rule 171 of the High Omrt Rules that as defendants 2 and 3 were only challenging the finding recorded by the trial court on the question of partition and as they were merely seeking a declaration that the partition was genuine, the fixed court fee of Rs. 20 was properly paid.

It is thus clear that the appeal filed by defendants 2 and 3 in the High Court was directed originally not agaist any part of the preliminary decree but against mere finding recorded by the trial court that the partition was not genuine. The main controversy before us centres round the question whether that appeal was maintainable on this. question. the position seems to us well-established.

There is. a basic distinction between. the right of suit and the right of appeal. There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may, at ones peril, bring a suit of one's choice. It is no answer to a suit, howsoever frivolous the claim, that the Jaw confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is 4uite the opposite. The right of appeal inheres in no one and there fore an appeal for its maintainability must have the clear authority of Jaw. That explains why the right of appeal is described as a creature of statute.

Under section 96(1) of the Code of Civil Procedure, save where otherwise expressly provided by the Code or by any other law for the time being in force, an appeal lies from every decree passed by any court exercising original jurisdiction, to the court authorised to hear appeals from the decisions of such court. Section 100 provides for a second appeal to the High Court from an appellate decree passed by a court subordinate to the High Court. Section 104(1) provides for appeals against orders of the kind therein mentioned and ordains that save as otherwise expressly provided by the Code or by any law for the time being in foree an appeal shall lie "from no other orders'" Clause (i) of this section provides for an appeal against "any orders made under Rules from which an appeal is expressly allowed by rules". Order 43, Rule 1 of the Code; which by reason of clause (i) of section 104(1) forms a part of that section, provides for appeals against orders passed under various rules referred to in clauses (a) to

(w) thereof. Finally, section 105(1) of the Code Jays down that save as otherwise expressly provided, no appeal shall lie from any order made by a court in exercise of its original or appellate jurisdiction.

These provisions show that under the Code of Civil Procedure, an appeal lies only as against a decree or as against an order passed under rules from which an appeal is expressly allowed by Order 43, Rule I.

...

E '

G ..

. >

OANGA BAI V. VJ.JAY KUMAR (C/randrachud, /.) 8~ j

No appeal can lie against a mere finding for .the silllple reas<?, n that lhe Code does not provide for any such appeal. It must follow that F1rst Appeal No.- 72 of 1959 filed by defendants 2 and 3 was not. maintainable as it was directed against a mere finding recorded by the trial court.

The High Court .mixed up two distinct issues.: one, whether it_ was competent to defendants 2 and 3, if they were agieved by the preHrninary decree of file an appeal against that decree; and two, whether the appeal such as was filed by them was maintainable. If it be correct that defendants 2 and 3 could be said to have been aggrieved by the preliminary decree, it was certainly competent for them to challenge that decree in appeal. But they did not file an appeal against the preliminary decree and therefore the questiol\ whether. they were aggrieved by that decree and could file an appeal therefrom was irrelevant. While deciding whether the -appeal filed by defendants 2 and 3 was maintain. able, . the High Court digressed into the question of the competence of defendants 2 and 3 to file an appeal against the preliminary decree and taking the view that it was open to them to challenge that decree even though the suit was wholly dismissed against them, the High Court hC!d that the apjleal, which in fact was directed against a finding given by th_e trial court, was maintainable. It the High Court had appreciated that the two questions were distinct and separate, it would not have fallen into the error of deciding the latter question by considering the former.

Adverting to the question which the High Court did consider, namely, whether defendants 2 and 3 could be said to be aggrieved by the preliminary decree, there is nothing in the terms of that decree which. precluded those defendants from depositing the decretal amount to be able to redeem the mortgage. The trial court had passed the usual preliminary decree for sale in Form No. 5A, under Order 34., Rule 4 .

Civil Procedure Code. If the amount found due to the appellant under the decree was paid into the court within the stipulated or extended yeriod, the appellant would have been obliged to deliver to the mortgagors all the documents in her possession or power relating to tho mortgaged property and to deliver up to the defendants quiet and peaceable possession of the property free from the mortgage.

The amount declared to be due to the appellant by the preliminary decree was _not paid by the defendants, from which it .wottld appear that they were not interested in paying the amount. It is significant that defendants 2 and 3 were served th the notice of final decree proceedings and they appeared th_erein. The Code is merciful to morgors and perhaps rightly, because the mortgagee ought to have no grievance if the loan advanced by him is repaid with permissible interest,· costs and expens\'8. Under Order 21; Rule 89, it was open to defendants 2 arid 3 as late as after the appellant purchased the property in the auction sale, to pay the amount due to her. These defendants had interest in the mortgaged property by virtue of a title acquired before the sale. that is, under the tegistered partition dated January 11, 1956. Under Order 21, Rule 89, where illlmovable property is sold in execution of a deeree, any person owing the property or holding an interest there-

888 SUPJ.l!Mll COUllT J.l!PORTS [1974) 3 s.c.11.

in by virtue of a title acqu\red before the sale, can apply to have the A • sale set aside qn his depositing in Court, for payment to the purchaeer a sum equal to five per cent of the purchase-money and for payment to the decree-bolder, tho amount specified in the proclamation of sale ll!I that for the recovery of which the sale was ordered. Nothing of the kind was done and even the last significant opportunity was not availed of by the defendants. Counsel for the appellant seems right that the defendants were content that only half the mortgaged property was B directed to be sold and that it was only because of the. later appreciation in prices of real property that defendants 2 and 3 awoke to the exigency of challenging the preliminary decree. That was much too late.

So late indeed, that not having any plausible reason to assi111 for the inordinate delay caused in applying for an amendment of the appeal, they preferred not to file an application for condoW1tion of delay at all. The appeal was filed on January 4, 1959 while the appli

cation for amendment was made. on August 2, 1966. Event though no explanation was offered for the long delay of over 7t years, the High Court allowed the amendment with a laconic orcjer "Application for amendment allowed".

Thus, the appeal filed by defendants 2 and 3 being directed against D a mere finding given by the trial court was not maintainable; defendants 2 and 3 were not denied by the preliminary decree the right to pay the decretal amount; and the two defendants could even have applied under Order 21, Rule 89, for setting aside the sale in favour of the appellant but they failed to do so as, presumably, they were not interested in paying the amount. The High Court was therefore wholll in error in allowing the amendment of the Memorandum of Appea , E particularly when defendants 2 and 3 had neither explained the long delay nor sought its condonation. ·

The preliminary decree had remained unchallenged since September -1958 and by lapse of time a valuable right had accrued in favour of the decree-holder. The power to allow an amendment is un doubtedly wide and may at any stage be appropriately exercised in F the interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the .court. The apJl:al in terms was originally directed against the finding given by the tnal court that the partition was sham and colourable. "Being aggrieved by the finding given in the Judgment and the Decree .......... it is humbly prayed G that findings given by the learned Judge in Para 34 of his Judgment may kindly be set aside, and instead the partition deed dated 11-1-56 may kindly be declared as genuine"--so ran the Memorandum of Appeal. Defendants 2 and 3 reiterated through their counsel by filing a note to explain the payment of fixed court fees of Rs. 20 that they were "seeking the relief of declara'ion only" and therefore the court fee paid was proper and sufficient. Long years thereafter, the High H Court allowed the Memorandum to be amended not a reason was cited

to explain the delay and not a reason was given to condone it. And it was not appreciated that in granting time to defendants 2 and 3 to

GANGA BAI v. VIJAY KUMAR (Chandrachud, J.) 8~&

make up the deficit of the court fees 7 t years after the aal was li)ed, an amendment was being allowed which had its impact nCJ only on the preliminary decree but on the final decree which was passed in the meanwhile, the auction sale which was held in pursuance of the final decree and the sale certificate which was granted to .the appellant who, with the leave of the court and in full satisfaction of her decree, had purchased a joint 1/3 share in the mortgaged property. With the

striking down of the preliminary decree, these proceedings had to fall but the error really lay in allowing the amendment so as to permit, without good cause shown, a belated . challenge to the preliminary decree.

One other aspcct of the question relating to the mai!ltainability of the appeal yet remains to be examined. Counsel for the respondenL•· argues that the finding of the trial court on the issue of partition would have operated as res judicata against them and they were therefore entitled to appeal therefrom.

In Ha, rchandra Das v. Bholanath Das on which the learned counsel for the respondents relies in support of this submission, a suit for prmption was dismissed by the trial court on the ground of limitation. In an ap~ filed by the plaintiff, the District Court reversed that findin!!l but confirmed the decree dismissing the suit on the ground that the sale effected by defendants 4 and 5 in lavour of defendants I, 2 and 3 was not validly registered and there being no "sale", there can be no right of preempti.on. Deiendants I to 3 preferred an appeal to the High Court against the finding recorded by the District Court that the sale effected in their favour by defendants 4 and 5 was not valid as it was not lawfully registered. On a preliminary objection

raised by the plaintiffs to the maintainability of the appeal, the High Court of Calcutta held that though under the Code of Civil Procedure there can be no appeal as against a mere finding, "it may be taken to be the view of courts in India generally, that a party to the suit adversely affected by a finding contained in a judgment, on which a decree is based, may appeal; and the test applied in some of the cases for the purpose of determining whether a party has been aggrieved or not was whether the finding would be res judicata in other proceedings". The High Court, however, upheld the preliminary objection on the ground that the issue regarditig validity of the sale which was decided against defendants l to 3 would not operate as res judicara in any subseque0t proceeding and therefore the appeal which was solely directed against the finding on that issue was not maintainable.

The position here is similar to that in the Calcutta case. The trial court decreed the mortgagee's suit only as against defendant 1, the father, and directed the sale of his one half interest in the mortgaged property on the ground that part of the consideration for the mortgage was not supportO<j by legal necessity, the remaining part of the consideration was tainted with immorality and therefore the mortgage was not binding on the interest of the sons, defendants 2 and 3. Whether the partition between the father and sons was sham or real had no

(I) I.L.R. (19351 62 Cal. 701.

:impact on the judgment of the trial cc!W't and made no material diffe- .rence to the decree passed by it. The finding recorded by the trial court that the partition was a colourable transaction was unnecessary for the decision of the suit because even if the court were to find that the partition was genuine, the mortgage wollid only have bound the interest of the father as the debt was not of a character which, under the Hindu law, would bind the interest of the sons. There is no substance in the submission made on behalf of the sons that if the partition was held to be genuine, the property would have been wholly freed from the mortgage encumbrance. The validity or the binding nature of an alienation cannot depend on a partition effected after the alienation; or else, a sale or a mortgage effected by the Karla of a joint-Hindu family can easily be avoided by effecting a partition amongst the members of the joint family. As the mat_ter relating to the partition was not directly and substantially in issue in the suit, the finding that the partition was sham cannot operate as res judicata. Therefore, the appeal filed by defendants 2 and 3 against that finding was not maintainable, even on .the assumption that the High Court of Calcutta is right in its view

that though under the Code there could_ be no appeal against a finding, yet "On grounds of justice" an appeal may lie against a finding provided that it would operate as res judicata so as to preclude a party aggrieved by the finding from agitating the question covered by the findinll in any other proceeding. It is not necessary here to determine whether the view of the Calcutta High Court is correct.

For these reasons we allow the appeal with costs, set aside the judgment of the High Court and restore that of the trial court.

s. c.

Appeal allowed.

GANGA BAI

VIJAY KUMAR & ORS

M. H. BEG

C.P.C

I-Ugh Court

Order 41, Rule 2

C.P.C

order 34, Rule 4

C.P.C

C.P.C

Order 43, Rule 1

order 21, Rule 89

M. N. Phadke

R. A. Gupta

K. B. Rohalgi

B. i\". Lokur

Arwz Kumar Sanglzl

A. G. Rat

CHANDRACHUD

September 20, 1958

High Court of Bombay

October 23, 1958

March 2,

1960

September 21. 1960

March 15. 1966

Abhyinkar

Deshmukh

August 24, 1966

November 24, 1966

Tambe

Badkas

Order 41, Rule 2

Civil Procedure Code

Order 34, Rule 4

Civil Procedure Code

section 96(1)

the Code of Civil Procedure

Section 100

Section 104(1)

Order 43, Rule 1

section 104(1)

section 105(1)

the Code of Civil Procedure

Civil Procedure Code

January 11, 1956

Order 21, Rule 89

January 4, 1959

August 2, 1966

Order 21, Rule 89

Chandrachud

High Court of Calcutta

the Code of Civil Procedure

India

Calcutta

Calcutta High Court


BHAJAN SINGH & ORS.

STATE OF U.P.

April 9, 1974

[Y. V. CHANDRACHUD, P. K. Gos\VAMI AND R. S. SARKARIA, JJ.]

Indian Penal Code (Act 45 of 1860), s. 149--Scopt of.

Co11.r1itutio11 of !11dia, 1950, Art. 136-Crhnbral appeal-lluerference by Supreint Court.

The three appellants and two others were convicted for an offence under s. 302/149, I.P.C. and sentenced to imprisonment for life by the Hig1t Court, affirming the judgtnent of the t.rial court,

C Dismissing the appeoil by special Jeave,

HELD: (I) Jn an appeal under Art. 136 of the Constitution this Court is \'Cry slow to interfere with the concurrent conclusions of the two courts below with r; egard to appreciation of evidenci: of tfie witnesses.

The accused must be ; iblc to make out an extraordinary case of gross and palpable injustice to induc~

this Court to take a view conlrary to th<it arrived at by the High Court [893 EJ

{2) The evidence disclosed that tht! rive accused were men1bers of an un- Jc1wful assembly with the common object to kill the deceased.

Th~ ntanner in which the defence was conducted in the tri'<tl court shows that the accused v.erc not prejudiced by the use of the Word 'beat' in the charge. [893 G-894 DJ

(3) Even if the accused were originally members of unlawful assembly wilft the common object of only beating the deceased they would be guilty under s. 302 read with the second limb of s. 149. Since they came armed with

deadly weapons and knew that' by using thOSe deadly weapans upon the deceased death would be caused. This is not a case where something f'oreign or unknown to the original object had taken place all of a sudden. Even <1ssunting that the unlawful assembly was formed originally only to beat, it is clearly established in the evidence that the said object is well-knit with what followed a.s the dangerous finale of the beating. It was the execution of the same common object which assumed the fearful character implicit in the illegal

action undertaken by the five accused.

[894 F-G; 895 A~E]

K. C. Mathew t111d otl1ers v. Tlie State of Trara11core-Cochbz I1955J 3 S.C.R. 1057, followed.

(-4) There is no circumstance in the case which can bring it under s. 304'

I. P .C. [894GJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 10 of 1970.

Appeal by special leave from the judgment and order dated the 29th August. 1960 of the Allahabad High Court in Criminal Appeal No. 568 o! 1967.

C. L. Sarin and R. L. Kohli, for the appellants.

D. P. Uniyal and o. P. Rana, for the respondent.

The Judgment of the Qiurt was delivered by

GosWAMI, J. This criminal appeal by special leave is directed against the judgment of the Allahabad High Court affirming the conviction of the five appellants, Bhajan Singh, Chain Singh, Bald•o Singh

Jagat Singh and Gurbachan Singh under seetion 302/149 I. P. C. and

892 SUPREME COURT Rl!PORTS

(1974] 3 6.C.R.

, sentence of illlprisonment for Ji& oo each of them. ~~,:!:'" Singh, Chain Singh ap.d Jagat Singh have further been convicted secticJi 147 J. P. C. and sentenced to rigorous imprisonment for one year eaeh and the two other appellants have also been convicted under section

148 I. P. C. and sentenced to one and a half years rigorous imprisonment each. Special leave was refused to Baldev Singh and Gur&achan Singh.

The prosecution case may brielly be stated :

Chain Singh and Baldeo Singh arc sons of Bhajan Singh, Gurbachan Singh is the n of J agat Singh. The deceased is Baklisheesh Singh, who was the brother of Major Singh and a cousin of appellant, Bhajan Singh. Major Singh had purchased some land in their village C Paivandkheri from one Sohan Singh and Gurbachan Singh was in unlawful possession of over 15. to 16 bighas of the said land. There was litigation between Gurbachan Singh and Major Singh in re>pect of this land. Gurbachan Singh subsequently sold his entire land including the .disputed area to Bhajan Singh. Thereafter Major Singh and hfa father

Ujagar Singh asked Bhaja~ Singh to give up possession over the lanu purchased by Major Singh and, on the day before the occurrence, sug- I> gested to him that they should go to the Patwari and settle the matter to which Bhajan Singh agreed. On September 17, 1964, at about 11.30 A.M. Bakhshecsh started on a cycle for the house of the Patwari with papers in connection with the disputed land. He was followed on foot, by his father, Ujagar Singh and brother Major Singh. When Ba:khsheesh

Singh had hardly gone a distance of about 20 or 25 paces from his house, the five appellants accosted him, Baldeo Singh was armed with t; a spear and Gurbachan Singh with a gandasa and the three other appellants were armed with lathis. Ba:khsheesh Singh got down from the cycle and Bhajan Singh caught hold of him and incited the other appellants to beat him. Baksheesh Singh requested the appellants to accompany bim to. the Patwari to settle the dispute, but Jngat Singh said that they would settle it on the spot. Baldev Singh then give a spear blow to Bakhsheesh Singh, Gurbachan Singh gave him a F gandasa blow on the head and Chain Singh beat him with his lathi.

Thereafter the appellants ran away. The occurrence was witnessed by Ujagar Singh (P.W. 3), Major Singh (P.W. 2) and Jogendar Kaur, widow of the deceased (P.W. 4) and Sadhu Singh, Sardari Singh and Prakash Singh, who were servants of Ujagar Singh. Ba:khsheesh Singh was injured in the abdomen and his intestines came out. The injury was bandaged with the turbans of the deceased and Ujagar Singh and (; he was taken to the police Station, Afzalgarh, where a first information report was lodged by Major Singh at 12.45 P.M. The police sent him to the hospital at Sherkot where Dr. Y ogendra Pal (PW 4 in the Committing . Court) examined him. From there he was take.n to the District Hospital, Bijnor. As his condition was serious, a dying declaration (Ex. Ke-8) was recorded at 9.30 P.M. by the Ta:hsi.ldar- . Magistrate, Shri Balbir Singh (P.W. 1). Ba:khsheesh Singh died next

day, September 18, 1964, in the afternoon. Postmortem examination H was perfom1ed by Dr. P. P. Agarwal on 19th September, 1964. According to the Doctor death was due to shock and haemorrhage from the injuries.

,..

. \ \ -b/

.. '

It appears that Gurbachan Singh and Chain Singh had some simple injuries o.n their person but they did not report to the police llOI' were

they examined by Dr. K. C. Gupta (D. W. 4) earlier than September 20, 1964, at 4.00 P. M .

The defence plea is an absolute denial by. Bhajan Singh, Baldeo Singh and Jagat Singh while Chain Singh an~ Gurbachq S_ingh gave a different version of the occurrence. Accordmg to Cham Smgh he and Gurbachan Singh were grazing .their cattle by the side of the canal when one Sardar Singh and Bakhsheesh Singh came there.

Bakbsheesh Singh abused them and there was grappling with him. Major Singh came from behind with a karauli and gave him a blow with ii When for the second time Major Singh tried to assault him with the karauli in struck Bakhsheesh Singh. According to Gurbachan Singh he tried to intervene and received lathi blows from Sardar Singh.

The prosecution relies upon, besides the medical evidence, the evidence ci. the three eye witnesses as noted above namely, PW 2, PW 3 and PW 4 and also upon the statement of Sadhu Si1gh recorded in the court of the Committing Magistrate and admitted in the Court ol Sessions under section 33 of the Evidence Act as well as upon the dying declaration of Bakhsheesh Singh to establish the charges. The High Court has relied, as the Sessions Ju.dge earlier did, upon the evidence of the three eye witnesses and has found that their evidence was

carroborated by the dying declaration as well as by the medical evidence, as properly scanned by the courts.

In an appeal under Article 136 of the Constitution this Court is very slow to interfere with the concurrent conclusions of the two courts below with regard to the appreciation of evidence of the witnesses. The accused must be able to make out an extraordinary case of gross and palpable injustice to induce us to take a contrary view from that arrived at by the High Court in this case.

Even so, the learned counsel r tbe, appellants submits that the High Court has erred in relying upon the testimony of these partisan witnesses since they are all related to the deceased. But even the deceased is the cousin or the appellant, Bhajan Singh.

We have perused the evidenee of the three eye witnesses and could not find any ground to disbelieve their testimony. The learned counsel

also could nc~ draw our attention to any serious infirmity in the evidence except characterising their testimony as interested.. Counael further submits that their statements are falsified by the medical evidence. He also submits that the eye witnessei; have not given any explanation for the injuries received by the accused and, therefore, their evidence should be rejected. The same grounds were also pressed into service before the trial court and in the High Court and both the ccilrts repelled the same with good reasons with which we concur .

The learned counsel contends that the common object of the unlawful ass.zmbly is only to beat Bakhsheesh Singh and not to kill him. He submits that even on the evidence acceotcd by the High Court charllC under section 302/149 l.P.C. has not been established against the accused. The learned counsel draws our attention to the word 'maro'

SUPREME COURT REPORTS •

[1974] 3 S.C.R.

used by the witnesses before the assault started. On the other hand, our attention is drawn , by the learned counsel for the State, to the F.I.R.• where it is mentioned that Jagat Singh •said, "let us settle the matter here. What will the Patwari do? Kill the sala".

Nothing turns decisively on the word 'maro' used by the witnesses and we have to see the entire surrounding circumstances and the quick sequence of events that immediately followed thereafter. It is clear that all the five accused came armed with deadly weapons and oJle of them, namely, BhajaJl Singh was the first to catch hold'of the deceased and shouted "beat the sa\a", while accused J agat Smgh said that they would not go to the Patwari and decide the matter on the spot. He a\so said ·beat this sala". Thereupon Baldeo Singh gave a barchhi blow which . hit the deceased's abdomen. It is, therefore, clear from the llbove version, which has been accepted by the courts below and which we have no reason to disbelieve, that the five accused were members of an unlawful assembly 'with the common object to kill Bakhsheesh Singh.

We dci not give much importance to the word 'beat' used in the charge in this case and we po not think that the accused have been prejudiced. . by such a recital in the charge from the manner in which the defence

 was conducted iu the trial court in answer to the evidence addressed by the prosecution.

The learned counsel strenuously contends that the. accused cannot

b~. convicted under section 302/149 l.P.C. as the common object of the assembly was not to kill the deceased. The learned counsel, how-

.over, fails to take note of.the fact that section 149 has got two limbs;

"If an offence is committed by any member of an unlawful assembly in prosecution of, the common object oi that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, r:very

person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence".

Even if, therefore, the accused were originally members of an unlawful ·

assembly with the common object of only beating Bakhsheesh Singh F having come armed with deadly weapons, some with spear and gan- . dansa and some with lathis, in the desperate manner they have done,

and if the members of the assembly knew .that by using these weapons upon Jlakhsheesh Singh death would be caused they are guilty of section 302 read with section 149 I.P.C. There is ncl circumstance in the case which can bring down this case to one under section 304 I.P.C. The intention was clear to kill Bakhshcesh Singh and all the G accused are guilty of the offenc" charge namely, section 302/149

I.P.C. .

• The learned counsel relied upon a 9ecision of this court in S!U1J11bhu Nath Singh and Others v. State of Bihar(') and also upon ancither decision in The Queen v. Sabid , Ali and Others(2). We are unable to appreciate how these decisions help the. accused in the present H case. We arc absolutely satisfied that all the five accused came armed

{I) AIR (1960) S.C. ns.

(2) 1873 Weekly Reporter (20), S.

~-

A with deadly weapons despite the arrangement on the previous day to accompany Major Singh and Bhajan-Singh had agreed to go to the Pat- "vari.

By turn of events they took a different posture to challenge Bakhsheesh Singh and party on their wa'y to the Patwari, dealt with th-em in the manner they have done resulting in the death of Bakhsheesh Singh. We are of the view that even the second limb of section 149 B I- P. C. is established .on the evi_dence in this case.

From the commencement of the interception of the cqmplainant's party by the accused armed with deadly weapons and first accosting of the deceased by Bhajan Singh with a challenging posture upto the running away of the five accused together after causing fatal injuries on the deceased, there is no escape from the conclusiqn that all the five accused came and worked with one design and object and they were definitely in the know of the fat'll consequence that, actually ensu:1d as a result of the conjoint attack to make them all vicariously responsible under section 149 I.P.C. ·

Section 149 I.P.C. constitu•es, per sea substantive offence although the punishment is under the section to which it is tagged being committed by the principal offender in tee unlawful assembly, known or unknown: Even assuming that the unlawful assembly was formed originally only to beat, it is clearly established in the evidence that the said object is well-knit with what followed as the dangerous finale of, call it, the beating. This is not a case where something foreign or unknown to the object has taken place all of a sudden. It is the execution of the same common object which assumed the fearful character implicit in the illegal action undertaken by the five accused. (See also K. C. Mathew and Others v. The State of Travancore-Cochin( 1).

Since all the accused are convicted under seotion 302/149 I.P.C. there is no further necessity, in the circumstances of this case, for their separate conviction unde< section 147 and 148 of the Indian Penal Code. Conviction and sentence of Bhajan Singh, Chain Singh and Jagat Singh under section 147 l.P.C. set aside. The conviction of all accused under section 302/149 I.P.C. and their sentence of life imprisonment on each of them are affirmed. 'The appeal is dismiss-ed subject to the above modification. 1

We may conclude by observing that this murder case has resuited in conviction in spite of the police at the instance of a privat-~ complainant \vho made serious allegations in court against the invzstigating agency.

V.P.S.

Appeal dismissed.

(I) [1955) (2) S.C.R. 1057. 14-L84SupCl/75

BHAJAN SINGH & ORS

April 9, 1974

Y. V. CHANDRACHUD

R. S. SARKARIA, JJ.

Indian Penal Code

s. 149

Art. 136

s. 302

I.P.C

Art. 136

s. 302

s. 149

s. 304

C. L. Sarin

R. L. Kohli

D. P. Uniyal

P. Rana

GosWAMI

Bhajan Singh

Chain Singh

Bald•o Singh

Jagat Singh

Gurbachan Singh

Chain Singh

Jagat Singh

section

148

Baldev Singh

Gur&achan Singh

Baldeo Singh

Bhajan Singh

Gurbachan Singh

J agat Singh

Baklisheesh Singh

Major Singh

C Paivandkheri

Sohan Singh

Ujagar Singh

Bhaja~ Singh

September 17, 1964

Bakhshecsh

Ba:khsheesh

Singh

Ba:khsheesh Singh

Baksheesh Singh

Jngat Singh

Bakhsheesh Singh

Ujagar Singh

Singh

Jogendar Kaur

Sadhu Singh

Sardari Singh

Prakash Singh

Afzalgarh

Singh

Sherkot

Y ogendra Pal

District Hospital, Bijnor

khsheesh Singh

P. P. Agarwal

19th September, 1964

K. C. Gupta

Jagat Singh

Gurbachq S_ingh

Cham Smgh

Sardar Singh

Bakbsheesh Singh

Sadhu Si1gh

section 33

Article 136

Counael

section 302

BhajaJl Singh

section 302

section 149

Jlakhsheesh Singh

section 302

section 149

I.P.C

section 304

I.P.C

Bakhshcesh Singh

section 302

I.P.C

Bhajan-Singh

section 149

section 149

I.P.C

Section 149

I.P.C

I.P.C

section 147 and 148

Indian Penal Code

section 147

section 302

I.P.C

\vho