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[2008 (1) T.N.C.J.

721 (Mad)]
MADRAS HIGH COURT
BEFORE:
A.C. ARUMUGAPERUMAL ADITYAN, J.
ADHIKESAVAN ...Petitioner
Versus
KALAVATHI ...Respondent
[C.R.P. (NPD) No. 20 of 2008 and M.P.No. 1 of 2008, decided on 19 February, 2008]
th

Civil Procedure Code, 1908—Order IX, Rule 13—Limitation Act, 1963—Section 5—


Ex-parte order—Setting aside of—Counsel not informed date of hearing—Applicant could
not contact his counsel in time resulting in passing of ex-parte order—Non- appearance
was not deliberate—Sufficient cause shown for absence—Hence, ex parte order liable to
be set aside—Petition allowed. (Paras 3 and 4)
Case law.—1998 (II) CTC 533; 2007 (2) CTC 58; AIR 1981 SC 1400—relied on.
Counsel.—Mr. J. Sudhakaran, Advocate, for the petitioner; Mr. N. Premkumar, Advocate,
for the respondent.
JUDGMENT
A.C. ARUMUGAPERUMAL ADITYAN, J.—The order passed in I.A.No.1454 of 2007 in
O.S.No.367 of 2004 on the file of the Court of District Munsif, Madhuranthakam is under
challenge. The said petition was filed under Section 5 of the Limitation Act to condone the delay
of 1096 days in filing a petition to set aside the ex parte decree. Admittedly, the petitioner is the
brother of the respondent. The respondent is the sister of the petitioner, who had filed a suit in
O.S.No.367 of 2004 for delivery of possession of her 1/2th share in the plaint schedule property
basing her claim under a Will. The reasoning stated in the affidavit to the application in
I.A.No.1454 of 2007 for condoning the delay is that due to his illness, he could not contact his
counsel and that on 16.6.2005, when the matter was posted for filing written statement, his
counsel has failed to inform the date of hearing for filing written statement and hence he was set
exparte on 16.6.2005.
2. The learned counsel appearing for the revision petitioner would rely on a decision
reported in N. Balakrishnan v. M. Krishnamurthy, 1998 (II) CTC 533, and contended that if
proper explanation for the delay is shown to the Court then it is the duty of the Court to condone
the delay and it is immaterial how long the delay was and that the rule of limitation is not
meant to destroy the rights of the parties, if sufficient cause is shown by the petitioner to condone
the delay. The facts of the said ratio is similar to the preset facts of the case. The
petitioner/plaintiff in the said suit has filed a petition to restore the suit which was
dismissed for default on 17.2.1993. After receipt of the notice in the execution proceedings, he
had approached his advocate on 5.7.1995 . He had signed the vakalatnama for resisting the suit,
besides making a payment of Rupees Two Thousand towards advocate’s fees and other
incidental expenses. But the advocate did not do anything in the Court even thereafter. On
4.8.1995, the execution warrant was issued by the Court and he became suspicious of the conduct
of his advocate and hence rushed to the Court from where he got the disquieting information that
his application to restore the suit which was dismissed for default as early as on 17.2.1993 itself
and thereafter he came to know that his advocate had left the profession. Hence he filed the
present application to restore the suit which was dismissed on 17.2.1993. There was a delay of
883 days in filing a petition to restore the suit. Hence, he has filed a petition under Section 5 of
the Limitation Act to condone the delay of 883 days in filing a petition to restore the suit. The
relevant observations in the said ratio are relevant for the purpose of deciding this revision are as
follows:
“Appellant’s conduct does not on the whole warrant to castigate him as an irresponsible
litigant. What he did in defending the suit was not very much far from what a litigant
would broadly do. Of course, it may be said that he should have been more vigilant by
visiting his advocate at short intervals to check up the progress of the litigation. But
during these days when every body is fully occupied with his own avocation of life an
omission to adopt such extra vigilance need not be used as a ground to depict him as a
litigant not aware of his responsibilities, and to visit him with drastic consequences. It is
axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of
the Limitation Act does not say that such discretion can be exercised only if the delay is
within a certain limit. Length of delay is within a certain limit. Length of delay is no
matter, acceptability of the explanation is the only criterion. Sometimes delay of the
shortest range may be uncondonable due to want of acceptable explanation whereas in
certain other cases delay of very long range can be condoned as the explanation thereof is
satisfactory. Once the Court accepts the explanation as sufficient it is the result of
positive exercise of discretion and normally, the superior Court should not disturb such
finding, much less in revisional jurisdiction, unless the exercise of discretion was on
wholly untenable grounds or arbitrary or perverse. But it is a different matter when the
first Court refuses to condone the delay. In such cases, the superior Court would be free
to consider the cause shown for the delay afresh and it is open to such superior Court to
come to its own finding even untrammelled by the conclusion of the lower Court. . . . . . .
. . A Court knows that refusal to condone the delay would result in foreclosing a suitor
from putting forth his cause. There is no presumption that delay in approaching the Court
is always deliberate. This Court has held that the words ‘sufficient cause’ under Section
5 of the Limitation Act should receive a liberal construction so as to advance substantial
justice viz., Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575 and State of West
Bengal v. The Administrator, Howrah Municipality, AIR 1972 SC 749. It must be
remembered that in every case of delay there can be some lapse on the part of the litigant
concerned. That alone is not enough to turn down his plea and to shut the door against
him. If the explanation does not smack of mala fides or it is put forth as part of a dilatory
strategy the Court must show utmost consideration to the suitor. But when there is
reasonable ground to think that the delay was occasioned by the party deliberately to gain
time then the Court should lean against acceptance of the explanation. While condoning
delay the Court should not forget the opposite party altogether. It must be borne in mind
that he is a looser and he too would have incurred quiet a large litigation expenses. It
would be a salutary guideline that when Courts condone the delay due to laches on the
part of the applicant the Court shall compensate the opposite party of his loss.”
For the same proposition of law, the learned counsel appearing for the revision petitioner
relying on another ratio in The Secretary, Madras Race Club, Chennai v. Saraswathy Kailasam,
2007(2) CTC 58. The relevant observation in the said Judgment runs as follows:
“Under Section 23 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, the
Appellate Authority has wide powers and the Appellate Authority has to independently
consider the matter. If the R.C.A.is not restored, the eviction order passed would
become final and it would amount to shutting the door to the petitioner. In the words of
the Supreme Court ‘it must be grasped that the Judiciary is respected not on account of its
power to legalise injustice on technical grounds, but because it is capable of
removing injustice, and is expected to do so.’ Declining the condone the delay in
filing the petition for restoration of the Appeal would result in serious miscarriage of
justice and shutting doors to the petitioner. At this juncture, we may usefully refer to
Ramegowda v. Special Land Acquisition Officer, 1988 (2) SCC, 142. Generally delays in
preferring Appeals are required to be condoned in the interest of justice where no gross
negligence or deliberate inaction or lack of bona fides is imputable to the party seeking
condonation of delay. In the present case, there is delay in filing application for
restoration of the appeal. When substantial justice and technical considerations are pitted
against each other, cause of substantial justice deserves to be preferred. Declining to
condone the delay in filing the application for restoration of appeal would result in
serious miscarriage of justice. The respondents cannot be allowed to have the benefit
of the unchallenged eviction order passed by the Rent Controller.”
In Rafiq v. Munshilal, AIR 1981 SC 1400, wherein the Honourable Apex Court has held as
follows:
“The disturbing feature of the case is that under our present adversary legal system
where the parties generally appear through their advocates, the obligation of the parties is
to select his advocate, brief him, pay the fees demanded by him and then trust the
learned advocate to do the rest of the things. The party may be a villager or may belong
to a rural area and may have no knowledge of the Court’s procedure. After engaging a
lawyer, the party may remain supremely confident that the lawyer will look after his
interest.. . . . . . what is the fault of the party who having done everything in his power
and expected of him would suffer because of the default of his advocate. If we reject this
appeal, as Mr.A.K.Sanghi invited us to do the only one who would suffer would not be
the lawyer who did not appear but the party whose interest he represented. The problem
that agitates us is whether it is proper that the party should suffer for the inaction,
deliberate omission, or misdemeanour of his agent. The answer obviously is in the
negative. May be that the learned advocate absented himself deliberately or intentionally.
We have no material for ascertaining that aspect of the matter. We say nothing
more on that aspect of the matter. However, we cannot be a party to an innocent party
suffering injustice merely because his chosen advocate defaulted. Therefore, we allow
this appeal, set aside the order of the High Court both dismissing the appeal and refusing
to recall that order.”
3. The learned counsel appearing for the respondent would submit that even after availing
sufficient time for filing written statement, the defendant has failed to file written statement on
1.6.2005 and hence he was set ex parte. To show his bona fide that the defendant inspite of his
instruction has failed to turn up on the date of hearing i.e., on 1.6.2005 to enable him to prepare
and file a written statement into the Court, the learned counsel would have informed the Court
that he has not received any instructions from the defendant. But from the entries in the
adjudication paper filed by the learned counsel appearing for the respondent it is seen that there
was no submission made by the learned counsel appearing for the defendant before the trial
Court as to the effect that he has not received any instruction from his client. But the affidavit to
the application in I.A.No.1454 of 2007 filed by the petitioner would go to show that since his
counsel has failed to inform the date of hearing to him, he could not contact his counsel in time
which resulted in passing an ex parte decree against him on 16.6.2005 which is not due to any
deliberate act of him. The dispute is between the brother and the sister who claimed their
respective 1/2th share in the suit property under two Wills. Under such circumstances, I am of the
view that after showing sufficient cause for his absence, the petitioner shall not be shut his
defence in the suit.
4. In fine, the civil revision petition is allowed and the order passed in IA.No.1454 of 2007
in O.S.No.367 of 2004 on the file of the Court of District Munsif, Madhuranthakam is set aside
and the ex parte order passed against the petitioner in the suit itself is set aside on condition the
petitioner pays a sum of Rs.3,000/-(Rupees Three thousand) only towards cost to the other side
within a week, failing which the civil revision shall deem to have been dismissed. On
compliance of the condition, the learned Court below shall restore O.S.No.367 of 2004 to his file
and the petitioner shall file written statement within a week from the date of restoration of the suit
and the learned trial Judge shall dispose of the same within a period of two months thereafter in
accordance with law. No costs. Consequently, connected M.P.No.1 of 2008 is closed.
Petition allowed.

[2008 (1) T.N.C.J. 725 (Mad) (MB)]


MADRAS HIGH COURT
(MADURAI-BENCH)
BEFORE:
G. RAJASURIA, J.
S.K. MOHAMMED KASIM ...Appellant
Versus
M/S. MOIDEEN ANDAVAR MOTOR SERVICE AND OTHERS ...Respondents
[C.M.A. (MD) No. 1066 of 2006 and M.P.No. 1 of 2006, decided on 21 February, 2008]
st

Civil Procedure Code, 1908—Section 96 (3)—Compromise decree—Suit for partition


—Suit partly decreed—Both sides filed appeal—During pendency of appeal injunction
order passed in favour of respondent—Hence, this appeal—Held, plaintiff himself admitted
that buses are being plied on behalf of partnership firm by third defendant even though
bus route and buses are in name of plaintiff—Further in counter-affidavit plaintiff
categorically set out that he would be having no objection for third defendant to sign
relevant papers as partner—Furthermore no appeal lies against compromise—Hence, no
interference warranted with order of first appellate Court. (Paras 16, 17, 22
and 23)
Case law.—2006 (5) SCC 566.
Counsel.—Mr. AR.L. Sundaresan Senior Counsel for M/s. A.L. Gandhimathi, for the
appellant; Mr. M. Palani, for the respondent 2 and no appearance for the respondent 3.
JUDGMENT
G. RAJASURIA, J.—This appeal is focussed as against the order dated 31.03.2006 in
I.A.No.102 of 2006 in A.S.No.30 of 2006 on the file of the learned Subordinate Judge,
Tiruchirappalli.
2. The parties are referred to hereunder for clarity sake as the plaintiff and the
defendants.
3. A re’sume of facts absolutely necessary and germane for the disposal of this appeal
would run thus:
O.S.No.973 of 1993 was filed by the plaintiff who is the appellant herein, S.K.Mohammed
Kasim, seeking partition. The trial Court partly decreed the suit.
4. Being aggrieved by it, the plaintiff as well as the defendants filed appeals in A.S.No.237
of 2005 and A.S.No.30 of 2006 respectively. During the pendency of the said appeals before the
Subordinate Judge, Trichy, I.A.No.102 of 2006 was filed in A.S.No.30 of 2006 by the
defendants 2 and 3 for obtaining injunction as against the plaintiff. The prayer in the said
I.A.No.102 of 2006 is extracted hereunder for ready reference:
“It is therefore just and necessary that the Hon’ble Court may be pleased to grant an order
of injunction restraining the first respondent from interfering with my rights of
peaceful running of the affairs of the first petitioner firm by myself of the affairs of the
first petitioner firm by signing all the necessary papers in respect of its management to be
submitted to the officials viz., R.T.O, Tiruchy of the first petitioner firm day to day like
renewal of permits, replacement of vehicles etc, till the disposal of this appeal and also
grant an ad interim order to the same effect till the disposal of this petition and thus
render justice.”
5. Before the first appellate Court, both sides contested the matter and ultimately, the order
was passed by it on 31.03.2006.
6. Being aggrieved by such an order, the plaintiff filed this appeal on the following main
grounds among others:
The first appellate Court was wrong in granting injunction as prayed by the third
defendant. The ownership of the buses could be decided only at the time of final hearing of the
appeal and not during the pendency of the appeal. The first appellate Court committed error in
assuming as though Sherfudeen (D.3) has to carry on with the business without the interference
of the appellant herein. Despite the factual position to the effect that the bus route as well as the
buses are standing in the name of the plaintiff Mohammed Kasim, the appellant herein, the first
appellate Court granted injunction. Accordingly, he prayed for setting aside the order of
injunction.
7. The point for consideration is as to whether there is any illegality in the order in
granting injunction as prayed by Sherfudeen (D.3) in I.A.No.102 of 2006 in A.S.No.30 of 2006?
The Point:
8. The learned senior counsel for the appellant/plaintiff would mainly focus his argument
by invoking the maxims “Ex turpi causa non oritur actio.” and “Ex dolo malo non oritur actio.”
The pith and marrow, the gist and kernel of those maxims, are to the effect that the Court cannot
enforce an illegal agreement. According to him, the first appellate Court simply assumed and
presumed as though the plaintiff unconditionally agreed for the second defendant Sherfudeen
signing as a partner at the time of obtaining renewal of the bus route, the permit and in other
correspondences with R.T.O relating to plying of the buses; in fact, the plaintiff in the counter-
affidavit simply expressed his conditional offer to the effect that in the event of the defendants
coming forward to agree that the defendants would not lay claim over the bus route and the buses,
he could sign the papers relating to R.T.O pending disposal of the appeal. As such, he prays for
setting aside the order in granting injunction.
9. Whereas the learned counsel for the third defendant would put forth his argument as
under:
In the counter affidavit filed, the plaintiff clearly and categorically without mincing words
expressed his desire that in the event of the third defendant, Sherfudeen filing an affidavit that he
would be signing as a partner, the plaintiff would be having no objection for the third
defendant to get on with the plying of the buses and getting renewal of the permit.
10. The first appellate Court in its order at page No.20, observed thus:
“This is the application filed only for temporary injunction not to disturb the day today
activities of the petitioner running the transport company. The respondent/plaintiff
also filing affidavit and he is willing to sign all necessary forms that are to be submitted
to R.T.O and R.T.A pertaining the petitioner firm. Therefore, he is not having any
objection regarding the management of the petitioner for the transport business.
Therefore, this Court comes to the conclusion that the petitioner is entitled an order of
temporary injunction restraining the first respondent to interfere the second petitioner
rights of peaceful running of the affairs of the first petitioner firm as a partner.”
11. The learned senior counsel for the plaintiff would challenge the aforesaid observation
made by the first appellate Court on the ground that it had no materials on record to assume as
though there was a compromise and in accordance with that, an affidavit was filed by the said
Sherfudeen.
12. Whereas the learned counsel for the third defendant would draw the attention of this
Court to the counter-affidavit filed by Mohammed Kasim. An excerpt from it, would run thus:
“Under these circumstances, his attempt to represent before the RTA that he is entitled to
sign as owner of first petitioner cannot be considered as a lawful title unless he filed an
unconditional affidavit before this Hon’ble Court that he will be signing the papers RTO
only in his capacity as partner of the first petitioner’s firm.”
13. Placing reliance on the aforesaid counter-affidavit, the learned counsel for Sherfudeen
(D.3), he would submit that since the plaintiff expected the said Sherfudeen to file necessary
affidavit, he filed such affidavit of undertaking; an excerpt from it, would run thus:
“I submit that as claimed by the respondent/plaintiff in his additional counter, I
undertake that without prejudice to my contentions in the appeal, that I will be signing
all the papers before the R.T.O only in my capacity as partner of the second defendant
transport business till the disposal of the appeal.”
14. Pointing out the aforesaid extract, he would develop his argument that the first
appellate was justified in observing as extracted supra.
15. The learned senior counsel for the plaintiff would challenge the order of the first
appellate on the main ground that it was not a mere order based on compromise, but it was also
an order on merits so to say, an illegal compromise order, whereas the learned counsel for the
defendant would argue that the first appellate Court narrated the facts and also the dispute
between the parties and ultimately, by relying upon the counter affidavit of the plaintiff as well as
the affidavit of undertaking filed by the defendant, passed such order.
16. In this connection, the learned counsel for the third defendant cited the decision of the
Honourable Apex Court in Pushpa Devi Bhagat v. Rajinder Singh reported in (2006) 5 SCC 566.
An excerpt from it, would run thus:
“16. Section 96 provides for appeals from original decrees. Sub-section (3) of Section
96, however, provides that no appeal shall lie from a decree passed by the Court
with the consent of the parties. We may notice here that Order XLIII, Rule
1(m), CPC had earlier provided for an appeal against the order under Rule 3,
Order XXIII, recording or refusing to record an agreement, compromise or
satisfaction. But clause (m) of Rule 1, Order XLIII was omitted by Act 104 of
1976 with effect from 1-2-1977. Simultaneously, a proviso was added to Rule 3,
Order XXIII with effect from 1-2-1977. We extract below the relevant portion of
the said proviso:
‘Provided that where it is alleged by one party and denied by the other that an
adjustment or satisfaction has been arrived at, the Court shall decide the
question.’
Rule 3-A was also added in Order XXIII with effect from 1-2-1977 barring any
suit to set aside a decree on the ground that the compromise on which the decree
is based was not lawful.
17. The position that emerges from the amended provisions of Order XXIII can be
summed up thus:
(i) No appeal is maintainable against a consent decree having regard to the specific bar
contained in Section 96(3), CPC.
(ii) No appeal is maintainable against the order of the Court recording the compromise
(or refusing to record a compromise) in view of the deletion of clause (m) of Rule 1,
Order XLIII.
(iii) No independent suit can be filed for setting aside a compromise decree on the ground
that the compromise was not lawful in view of the bar contained in Rule 3-A.
(iv) A consent decree operates as an estoppel and is valid and binding unless it is set
aside by the Court which passed the consent decree, by an order or an application
under the proviso to Rule 3, Order XXIII.”
17. A perusal of the aforesaid excerpt and more so the entire judgment, would clearly
highlight that once there is a compromise, there should not be any appeal. Whereas the learned
senior counsel for the plaintiff would try to carve out an exception so far this case is concerned by
pointing out that this is not actually a compromise order in stricto sensu; there was only a
conditional offer in the counter affidavit and thereupon, the said affidavit of undertaking was filed
by Sherfudeen and the lower Court simply relied upon it while disposing of the I.A. on merits.
18. I am of the considered opinion in this factual matrix, that the plaintiff clearly and
categorically set out supra in his counter-affidavit that in the event of the said Sherfudeen
undertaking to sign the papers before R.T.O. in his capacity as a partner of the first petitioner’s
firm, he would be having no objection.
19. As such, had really, the plaintiff intended that the entire lis relating to the buses, should
have been given a quietus by the Sherfudeen (D.3) agreeing for the plaintiff to be the owner of
the buses and the bus route, then, there would have been no necessity at all for the said
Sherfudeen signing in his capacity as a partner of the first petitioner, would arise at all. As such,
in my opinion, the contention before this Court by the appellant that the appellant intended by the
said counter affidavit filed in I.A.No.102 of 2006 in A.S.No.30 of 2006 that there should be a
quietus to the lis relating to the buses, is only an afterthought and improved version before this
Court so as to wriggle out of his commitment in black and white before the first appellate Court.
20. The learned counsel for the second defendant would draw the attention of this Court to
the paragraph No.7 of the plaint which is extracted hereunder for ready reference:
“7. Ever since 1971 when the business was converted into a partnership business, the
plaintiff reposing full confidence in his brother, did not ask for accounts till date.
The 3rd defendant as partner of the said business had been exclusively
looking after the business as a partner for and on behalf of himself and the
partnership firm.”
(emphasis added.)
21. As such, it is clear that even as per the version of the plaintiff, even though the buses
and the bus route are standing in the name of the plaintiff, yet the third defendant and the plaintiff
by virtue of an understanding entered into a partnership business and in that, the buses and
the bus route were treated as the property of the partnership firm. Whether such an arrangement
between the parties as set out in the plaint is legal or illegal, would be decided by the lower Court
which is seized of the appeals.
22. Pro et contra, i.e, considering the pros and cons of the matter, I am of the considered
opinion that the appellant is not justified in approaching this Court by filing this appeal on
the ground that the trial Court ought not to have relied on such an illegal compromise is
untenable. In paragraph No.7 of the plaint, the plaintiff himself admitted that the buses are being
plied on behalf of the partnership firm by the third defendant, even though the bus route and the
buses are in the name of Mohammed Kasim.
23. It is also clear that the plaintiff in the counter affidavit categorically set out that he
would be having no objection for the third defendant Sherfudeen to sign the relevant papers as a
partner, on behalf of the partnership firm for plying the bus in the bus route concerned. Now,
then he would veer round and take a quite antithetical plea. In this view of the matter, no
interference with the order of the first appellate Court is warranted.
24. Accordingly, there is no merit in this civil miscellaneous appeal and the same is
dismissed. However, I would like to clarify that any finding given by the first appellate Court as
well as this Court and also the injunction granted, would all be subject to the final adjudication in
the appeals which are pending before the first appellate Court. Consequently, connected
miscellaneous petition is closed. No costs.
Appeal dismissed.

[2008 (1) T.N.C.J. 731 (Mad)]


MADRAS HIGH COURT
BEFORE:
K. MOHAN RAM, J.
RENGATHAN AND OTHERS ...Appellants
Versus
SANTHANAPAKIAMMAL ...Respondent
[Second Appeal No. 1511 of 1993 and C.M.P. No. 4214 of 2006, decided on 18 February, 2008]
th

Civil Procedure Code, 1908—Order XXII, Rule 3— Abatement—Suit for


declaration of title and for recovery of possession—Suit decreed by Trial Court—Appeal
dismissed— Second appeal filed—Pending second appeal 4 th appellant died leaving behind
respondent Nos. 2 and 3 as legal representatives—Legal representatives not brought on
record—Appeal abated as against 4th appellant—After delay of 2261 days above petition
filed by first petitioner claiming to have purchased suit property under three sale deeds
and claimed to have stepped into shoes of petitioners 2 to 4—Petitioner wanted to be
impleaded as 5th appellant—Held, abatement caused by death of fourth appellant
rendered entire appeal as abated since decree passed in proceedings vis-à-vis remaining
appellants would suffer vice of contradictory or inconsistent decrees—Thus petition
dismissed.
(Paras 16 and 17)
Case law.—AIR 1975 SC 2159; 2001 (6) SCC 534; 2004 (7) SCC 354; 2005 (1) SCC 787;
2005 (3) LW 728; AIR 1977 Ker 83 (FB); AIR 1959 Cal 368; AIR 1963 Pat 123; 2003 (3) SCC
272—referred.
Counsel.—Mr. J. Ramakrishnan, for Mr. Sarvabhauman Associates, for the
appellants; Mrs. Hema Sampath, Senior Advocate, for, Mr. R. Subramanian, for the respondent.
JUDGMENT
K. MOHAN RAM, J.—The first respondent herein filed a suit in O.S.No.922/1984 against
the petitioners 2 to 4 (appellants 2 to 4) and one Elayaperumal (4th Appellant) for declaration and
recovery of possession of the property measuring to an extent of 1.08 acre in Survey
No.127-B/10, Chinnaparur Village, Vridhachalam Taluk. The said suit was decreed by the
trial Court and the first appeal in A.S.No.55 of 1991 was dismissed by the Sub Court,
Vridachalam and as against that, the present second appeal has been filed and the same was
admitted on 06.12.1993. Pending the second appeal, the fourth appellant Elayaperumal died on
02.10.1998 leaving behind the respondents 2 and 3 herein as his legal heirs and according to the
petitioners, the respondents 2 and 3 are the only legal representatives of the deceased fourth
appellant. Since the respondents 2 and 3 were not brought on record in time, the appeal abatted as
far as the deceased Elayaperumal (4th appellant) is concerned. After a delay of 2261 days, the
above petition has been filed by the first petitioner claiming to have purchased the suit
property under three sale deeds dated 30.01.1984, 08.06.1994 and 09.07.1997 from the second
petitioner, 4th petitioner and the respondents 2 and 3 respectively and as such, claims to have
stepped into the shoes of the petitioners 2 to 4. According to the petitioner, the right to continue
the proceedings has devolved on him and on that ground seeks to get himself impleaded as the
5th appellant in the above second appeal. The said petition is opposed by the 1st respondent.
2. In the counter-affidavit filed by the first respondent it is contended as follows:
(i) The fourth appellant Elayaperumal died on 02.10.1998 but no petition was filed in
time to bring on record his legal representatives and hence the second appeal has
abated on the expiry of 90 days from 02.10.1998. The decree passed in the suit is a
joint decree against all the appellants and hence there is no second appeal pending as
on today. Therefore, the above petition to implead the first petitioner is not
maintainable.
(ii) It is further stated that the first petitioner has not filed the copy of the sale deeds and
even otherwise the said sale deeds do not convey the right of all the owners and as
such he cannot seek to come on record as a matter of right as the right to sue does
not survive to him.
(iii) The legal representatives of the fourth appellant as well as the other appellants have
lost interest in the litigation and they have not taken care to file any petition to set
aside the abatement caused by the fourth appellant’s death. When the original
defendants/appellants are not interested, the first petitioner claiming to be an alienee
from the fourth appellant cannot be permitted to get himself impleaded. It is further
stated that the long delay has not been properly explained.
3. Heard both sides.
4. The learned counsel for the petitioner submitted that the first petitioner as the purchaser
of the suit property during the pendency of the suit is entitled to be impleaded as a party to the
second appeal.
5. In support of the said contention, he relied upon various decisions of the Apex
Court. In a decision reported in AIR 1975 SC 2159 (Rikhu Dev v. Som Dass), the Apex Court
has observed that Order XXII, Rule 10 is based on the principle that trial of a suit cannot be
brought to an end merely because the interest of a party in the subject-matter of the suit has
devolved upon another during the pendency of the suit but that suit may be continued against the
person acquiring the interest with the leave of the Court. When a suit is brought by or against a
person in a representative capacity and there is a devolution of the interest of the representative,
the rule that has to be applied is Order XXII, Rule 10 and not Rule 3 or 4, whether the devolution
takes place as a consequence of death or for any other reason.
6. Further, he placed reliance on the decision reported in 2001(6) SCC 534 (Howrah Daw
Manglahat v. Pronab Kumar Daw) wherein it has been held that the person upon whom the
interest has devolved may also apply for such a leave so that his interest may be properly
represented as the original party, if it ceased to have an interest in the subject-matter of dispute by
virtue of devolution of interest upon another person, may not take interest therein, in ordinary
course, which is but natural, or by colluding with the other side. A prayer for leave can be made
not only by the person upon whom interest has devolved, but also by the plaintiff or any other
party or person interested. Further, he placed reliance on the decision reported in 2004 (7) SCC
354 (Shahazada Bi and others v. Halimabi), and in that decision the Apex Court has held that the
question as to whether the decree is joint and inseverable or joint and severable has to be decided,
for the purposes of abatement, with reference to the fact as to whether the decree passed in
the proceedings vis-a-vis the remaining parties would suffer the vice of inconsistent decrees or
conflicting decrees. A decree can be said to be inconsistent or contradictory with another decree
only when two decrees are incapable of enforcement and enforcement of one would negate the
enforcement of the other.
7. The learned counsel for the petitioner further relied on a decision reported in
2005(1) SCC 787 (Bhanu Kumar Jain v. Archana Kumar and another) wherein while
considering the locus standi of an assignee to continue the proceedings, the Apex Court has
observed that the appellant could have been substituted in place of plaintiff in terms of Order
XXII, Rule 10 and even if not substituted in terms of the same, an application under Order I, Rule
10 would have been maintainable as the appellant became the legal representative of the original
plaintiff. Further in a decision reported in 2005 (3) LW 728 ( Amit Kumar Shaw and another
v. Farida Khatoon and another) while considering the right of an alienee to get himself
impleaded in a pending second appeal, the Apex Court has observed that the appellants who are
transferees pendente lite should be made as parties to the pending second appeals as prayed
for by them as the presence of the appellants are absolutely necessary in order to decide the
appeals on merits.
8. Countering the said submissions made by the learned counsel for the petitioner,
Mrs.Hema Sampath, learned senior counsel submitted that since the appeal as against the 4th
appellant had abated and the decree being a joint decree, the entire appeal had abated. The
learned senior counsel further submitted that as on date as no suit is pending, the present petition
to implead the first petitioner as 5th appellant is not maintainable. In support of her contentions,
the learned Senior counsel placed reliance on the following decisions.
9. In AIR 1977 Ker 83 (FB) (Goutami Devi v. Madhavan Sivarajan), it is observed as
under:
“7. It seems to us to be plain from the scheme of Order XXII that an assignee can
make an application for leave to continue the suit so long as there is a suit, so
far it concerns the assignee, on the file of the Court. In a suit which is not
subsisting there is no scope for seeking continuance. It is only logical that in
a case where the suit has abated the assignee cannot thereafter seek to be added
as a party to the action. That this is the scheme is evident from an examination of
the Order XXII of the Code of Civil Procedure. If the assignee seeks to be
impleaded in the proceedings before the suit abates and the legal representatives
also seek to be impleaded whether the Court would allow the assignee to come
on record is a different question. That will depend upon consideration of
many matters. But the assignee cannot claim to come on record as a matter of
right since leave is not to be granted as a matter of course. We are not concerned
with such a situation here and we need not got into this question further
for the purpose of this appeal.
26. But the assignee can obtain leave only to continue a suit. If the suit has already
abated, there is no suit which may be continued. The abatement terminates the
suit and disposes of the plaintiff’s claim as if the suit has been dismissed
without a hearing. Leave to continue a suit cannot be given after the suit has
terminated. It cannot be given if the suit has already been decreed or dismissed
for default of appearance of the plaintiff. Similarly, leave cannot be given if
the suit has already abated. The suit abates automatically in the absence of any
application under Order XXII, Rule 3 within ninety days and a further order
declaring that the suit has abated is not necessary. The assignee is bound by the
abatement and by proceedings had in the suit before his intervention.”
10. In AIR 1959 Cal 368 (V 46 C 102) (Kedarnath Kanoria and others v. Khaitan Sons
and Co.,) the Apex Court has observed as follows:
“25. It is true that the death of the assignor plaintiff simpliciter does not take away the
right of the assignee to apply under Order XXII, Rule 10 of the Code of Civil
Procedure. By Order XXII, Rule 1 the death of the plaintiff of itself does not
cause the suit to abate. Before the suit has abated the assignee may apply for and
obtain leave to continue the suit. He may also, if he chooses, apply for
substitution of the legal representative of the deceased plaintiff. In a proper case,
the order for leave to continue the suit may be dated nune pro tune as of the date
when the application was made. If necessary, the application for leave to
continue the suit may be treated as being in substance a composite application
for substitution of the legal representatives of the deceased plaintiff and
thereafter of the applicant. On obtaining the necessary leave the assignee
becomes the new plaintiff and the suit cannot thereafter abate on account of the
death of the original plaintiff.
26. But the assignee can obtain leave only to continue a suit. If the suit has already
abated, there is no suit which may be continued. The abatement terminates the
suit and disposes of the plaintiff’s claim as if the suit has been dismissed
without a hearing. Leave to continue a suit cannot be given after the suit has
terminated. It cannot be given if the suit has already been decreed or dismissed
for default of appearance of the plaintiff. Similarly, leave cannot be given if
the suit has already abated. The suit abates automatically in the absence of any
application under Order XXII, Rule 3 within ninety days and a further order
declaring that the suit has abated is not necessary. The assignee is bound by the
abatement and by proceedings had in the suit before this intervention...”
11. In AIR 1936 Pat 123 (Gobardhan Muhkharji v. Saligram Marwari and others) it is
observed as follows:
“Now comes the question as to whether the appellant can get leave to continue the suit
under Order XXII, Rule 10. The learned Subordinate Judge relying upon certain
observations of the Privy Council in 1 Pat 581(1) and on the decision in 1925 Mad
1166(2) has held that that rule applies to cases in which there has been an assignment by
a party who is already on the record. The observations of the Privy Council do not apply
very much to the facts of the present case, but the Madras decision which is of a Single
Judge, is exactly in point and if I may say so, I entirely agree with the view taken there
and in my opinion the learned Subordinate Judge has rightly rejected the application.
Rule 10 empowers the Court to give leave to a person who has taken an assignment from
a party to continue the suit. The “party” there obviously refers to a party already on the
record. Now in this particular case there has been no substitution of the legal
representative of the deceased plaintiff Matangini. Her daughter Priyasakhi seems,
as I have said, to be unwilling to come up and prosecute the suit for reasons of her own. It
will be defeating the object of the law if the legal representative of a deceased party,
instead of coming forward and himself taking up the responsibility of the suit
transfers his interest to another man and that man be permitted to continue the suit. This
disadvantage will be obvious if we refer to the facts of this particular case. The appellant
is admittedly a beggar by profession. Priyasakhi is unwilling to come forward, and if the
appellant be allowed to prosecute the suit, the defendants will be deprived of their costs.
Assuming however that it was open to the learned Subordinate Judge to allow the
appellant to prosecute the suit, the circumstances of this case were such in which the
discretion ought not to have been exercised.”
12. The learned senior counsel further contended that when admittedly the respondents 2
and 3 who are said to be the legal representatives of the deceased 4th appellant are unwilling to
come up and prosecute the appeal for reasons best known to them, it will be defeating the object
of the law if the legal representatives of the deceased party, instead of coming forward and
themselves taking up the responsibility of the suit transfer their interest to another man and that
man can be permitted to continue the suit.
13. I have carefully considered the submissions made by the learned counsel on either side.
14. A careful reading of the various decisions relied upon by the learned counsel for the
appellants makes it abundantly clear that a transferee pendente lite is entitled to be made as
party to the pending second appeal as the presence of the transferee is absolutely necessary in
order to decide the above second appeal on merits. It is also settled proposition of law that an
assignee can make an application for leave to continue the suit so long as there is a suit, so far
it concerns the assignee, on the file of the Court. In a suit which is not subsisting there is no
scope for seeking continuance. As observed by the Full Bench of the Kerala High Court in AIR
1977 Ker 83 (FB) (referred to supra) in a case where the suit has abated the assignee cannot
thereafter seek to be added as a party to the action. If the assignee seeks to be impleaded in the
proceedings before the suit abates and the legal representatives also seek to be impleaded, the
Court would allow the assignee to come on record depending upon the facts and circumstances of
the particular case. The assignee cannot claim to come on record as a matter of right since leave
is not to be granted as a matter of course. But if the suit has already abated, there is no suit which
may be continued. The suit abates automatically in the absence of any application under Order
XXII, Rule 3 within 90 days and further order declaring that the suit has abated is not necessary.
The assignee is bound by the abatement. In this case, the main question to be considered is
whether the appeal has abated only as against the fourth appellant or the appeal in its entirety has
abated. After deciding that question, the further vital question to be decided is as to whether the
decree that is passed in the suit is a joint and inseverable or joint and severable or separable.
15. In the decision reported in (2003) 3 SCC 272 (Sardar Amarjit Singh Kalra v. Pramod
Gupta) a Constitution Bench of the Apex Court, after considering various decisions held, at p.305
SCC, that whether an appeal partially abates on account of the death of one or the other party on
either side has to be considered depending upon the fact as to whether the decree obtained is a
joint decree or a severable one. It was further held that in case of a joint and inseverable decree if
the appeal abated against one or the other, the same cannot be proceeded with further for or
against the remaining parties as well. If otherwise, the decree is a joint and several or separable
one, being in substance and reality a combination of many decrees, there can be no
impediment for the proceedings being carried with among or against those remaining
parties other than the deceased. Finally, this Court held in para 34, at SCC pp. 307-08 as under:
“34. In the light of the above discussion, we hold:
(1) Wherever the plaintiffs or appellants or petitioners are found to have distinct,
separate and independent rights of their own and for the purpose of convenience
or otherwise, joined together in a single litigation to vindicate their rights, the
decree passed by the Court thereon is to be viewed in substance as the
combination of several decrees in favour of one or the other parties and not as a
joint and inseverable decree. The same would be the position in the case of the
defendants or respondents having similar rights contesting the claims against
them.
(2) Whenever different and distinct claims of more than one are sought to be
vindicated in one single proceeding as the one now before us, under the Land
Acquisition Act or in similar nature of proceedings and/or claims in assertion of
individual rights of parties are clubbed, consolidated and dealt with together by
the courts concerned and a single judgment or decree has been passed, it should
be treated as a mere combination of several decrees in favour of or against one or
more of the parties and not as joint and inseparable decrees.
(3) The mere fact that the claims or rights asserted or sought to be vindicated by
more than one are similar or identical in nature or by joining together of more
than one of such claimants of a particular nature, by itself would not be sufficient
in law to treat them as joint claims, so as to render the judgment or decree
passed thereon a joint and inseverable one.
(4) The question as to whether in a given case the decree is joint and inseverable or
joint and severable or separable has to be decided, for the purposes of abatement
or dismissal of the entire appeal as not being properly and duly constituted
or rendered incompetent for being further proceeded with, requires to be
determined only with reference to the fact as to whether the judgment/decree
passed in the proceedings vis-a-vis the remaining parties would suffer the vice of
contradictory or inconsistent decrees. For that reason, a decree can be said to
be contradictory or inconsistent with another decree only when the two decrees
are incapable of enforcement or would be mutually self-destructive and that the
enforcement of one would negate or render impossible the enforcement of the
other.”
16. Admittedly the suit has been filed by the first respondent herein for declaration of title
and for recovery of possession of the suit property. The defence taken by the
defendants/appellants is that the plaintiff/first respondent is not entitled to get a declaration as she
is not the wife of the original owner and the defendants/appellants have perfected their title by
adverse possession. Though a feable defence has been taken that the defendants have partitioned
the suit property no details of the same have been furnished and it is not the specific case of the
defendants that they are in possession and enjoyment of identifiable and separate properties and
in the partition claimed by them the suit property was divided by metes and bounds. Therefore
the abatement caused by the death of the fourth appellant has rendered the entire appeal as abated
since the judgment/ decree passed in the proceedings vis-a-vis the remaining appellants
would suffer the vice of contradictory or inconsistent decrees. Because if the appeal is allowed as
far as the remaining appellants are concerned, it would be contradictory or inconsistent with a
decree that is passed against the deceased/fourth appellant as both the decrees could not be
enforced and both the decrees would be mutually self-destructive and the enforcement of one
would negate or render impossible the enforcement of the other. Therefore the contention of
the learned senior counsel for the first respondent that the decree passed in these proceedings is
joint and inseparable has to be accepted.
17. When this Court has come to the conclusion that the decree passed in the suit is joint
and inseverable and since as against the fourth appellant the appeal has abated it has rendered the
entire appeal incompetent for being further proceeded with. Therefore as pointed out above,
leave to continue the proceedings cannot be given after the proceedings has terminated. The
assignee is bound by the abatement. Further as rightly contended by the learned senior counsel
neither appellants 1 to 3 nor the legal representatives of the deceased-the fourth appellant namely
respondents 2 and 3 have evinced any interest to take steps to implead the legal representatives
and set-aside the abatement caused by the death of the fourth appellant, but the assignee seeks
leave to continue the proceedings which has admittedly abated long back. Therefore this Court
is not inclined to entertain the above petition filed by the first petitioner claiming to be an
assignee. In such view of the matter the above petition fails and the same is dismissed. For the
above said reasons the second appeal itself is liable to be dismissed and accordingly dismissed.
No costs.
Appeal dismissed.

[2008 (1) T.N.C.J. 740 (Mad)]


MADRAS HIGH COURT
BEFORE:
M. VENUGOPAL, J.
THANGAVEL ...Petitioner
Versus
SUBASH ...Respondent
[C.R.P. (NPD) No. 1810 of 2004 and CMP No. 13645 of 2004, decided on 22 January, 2008]
nd

Limitation Act, 1963—Section 5—Civil Procedure Code, 1908—Order IX, Rule 13—
Condonation of delay—Ex parte decree—Delay of 460 days in setting aside ex-parte decree
—After receiving summons applicant went out of city for eking his livelihood and suffered
jaundice and took native treatment—In mean time ex parte order passed—Could not file
application for 460—Earlier also case was proceeded ex parte—However in view of facts of
case delay condoned on cost—Trial Court directed to dispose of suit within 4 months.
(Para 8 to 10)
Counsel.—Mr. S. Umapathy, for the petitioner; Mr. V. Meenakshi Sundaram, for the
respondent.
JUDGMENT
M. VENUGOPAL, J.—The civil revision petitioner is the defendant in O.S.No.36 of 1999
on the file of the Sub-Court, Cheyyar, Thiruvannamalai District.
2. The revision petitioner/applicant/defendant has filed an I.A.No.269 of 2003 in
O.S.No.36 of 1999 under Section 5 of the Limitation Act praying to condone the delay of 460
days in setting aside the ex parte decree dated 11.03.2002. In the application filed by the civil
revision petitioner/applicant in I.A.No.269 of 2003, the applicant has inter alia averred that,
during August Amin from Court giving summons directing him to appear in Court on 05.09.2002
and that the next day, he went to Bangalore for eking his livelihood and he suffered jaundice and
took native treatment and that the said treatment continued and that after meeting his counsel, he
came to know that the matter was posted to 11.02.2002 and thereafter, an ex parte decree was
passed and therefore, he could not file an application in time and there was a delay of 460 days in
filing the application to condone the delay.
3. The respondent/plaintiff in the counter has taken a specific plea that on 11.03.2002, an
ex parte order was passed and till 05.09.2002, the petitioner was in station and there is no
explanation on the side of the civil revision petitioner as to why he could not appear during the
period from 11.03.2002 till 05.09.2002 and therefore, the application is false and not
maintainable in law.
4. The learned Subordinate Judge, Cheyyar has dismissed I.A.No.269 of 2003 without
costs on 24.11.2003 inter alia observing for each and every days delay under Section 5 of the
Limitation Act and explanation has to be furnished and that the reasons assigned by the revision
petitioner/applicant in his application are not acceptable etc.
5. No doubt the revision petitioner/applicant has not produced any evidence to show that
he suffered from jaundice. It transpires that as against the revision petitioner/defendant in
E.P.No.77 of 2002 an order of arrest was issued and the same is pending for long time, as
observed by the learned trial Judge in his order in I.A.No.269 of 2003 dated 24.11.2003.
Furthermore, the learned trial Judge has observed that in I.A.No.269 of 2003 in O.S.No.36 of
1999 for the revision petitioner/applicant’s Advocate Thiru.R.Manivannan has filed Vakalat
and appeared and before that for the civil revision petitioner/applicant already
Thiru.P.Chandran appeared and that the revision petitioner has not obtained said Advocates’
consent and filed new Vakalat and the revision petitioner for every occasion is in the habit of
engaging different counsels with a view to drag on the case. Earlier on 17.07.1996, an ex parte
decree was passed against the revision petitioner/applicant and an I.A.No.204 of 1996 was filed
by the revision petitioner/applicant and by means of an order dated 25.04.1997, the said ex parte
decree dated 17.07.1996 was set aside by the trial Court and again the case was taken up for trial.
Later on the revision petitioner/applicant did not appear on 11.03.2002 and onceagain an ex parte
decree was passed against him.
6. It is to be pointed out that a party does not stand to benefit by not appearing before the
Court and refusing to condone the delay can result in a good case being thrown out at the earliest
stage and cause of justice being defeated. As against this, when delay is condoned, highest that
can happen is that a cause would be decided on merits after hearing the parties. The term “Every
day’s delay should be explained” should not be viewed in a pedantic way, and the approach of the
Court must be in a common pragmatic manner, in the considered opinion of this Court.
7. Furthermore, when substantial justice and technical considerations are pitted against
each other, cause of substantial justice deserves to be preferred for the other side cannot claimed
to have vested right any injustice being done because of a non deliberate delay. As a matter of
fact, a litigant does not stand to benefit by adopting dilatory tactics. On the contrary, he runs a
serious risk it can be said that judiciary is respected not on account of its power to legalize
injustice on technical grounds, but because it is capable of removing injustice and is expected to
do so.
8. As far as the present case is concerned, the reasons assigned by the revision
petitioner/applicant after receipt of summons from the Court Amin, he went to Bangalore for
eking his livelihood and there he suffered jaundice and took treatment etc. Even though or
not, satisfactory and cannot be accepted at the face value yet the factum of non-
production of any evidence for jaundice and not producing the certificate for medical
treatment as to his said illness or treatment affecting the case of the revision petitioner in
entirety. At the same time, one cannot ignore the fact that prior to 11.03.2002, as against the civil
revision petitioner, there was an ex parte decree passed on 17.07.1996 and the same was set aside
on 25.04.1997, in the orders passed in I.A.No.204 of 1996. Therefore, it is evident that the
revision petitioner/applicant/defendant is not efficaciously and diligently conducting the
proceedings before the trial Court.
9. Admittedly, the suit laid by the respondent/plaintiff is for recovery of a sum of
Rs.32,358.25/- based on a pro-note made-over by the Rama Gounder in favour of the plaintiff on
15.05.1994 for due consideration and the said borrowal is stoutly denied by the revision
petitioner/defendant in the written statement for the various reasons assigned therein. Generally,
in a delay condonation matters, a liberal view is to be taken by Courts of law and there is no hard
and fast rule or straight jacket formula in this regard. However, the cost will be the penalty/
compensation. No wonder the length of delay is immaterial.
10. Inasmuch as the substantial justice will have to be meted out to the parties overriding
the technical considerations, this Court having regard to the facts and circumstances of the case,
allows the civil revision petition with a condition that the civil revision petitioner shall remit a
sum of Rs.600/- towards costs to the Tamil Nadu Mediation and Conciliation Centre, Chennai
within a period of two weeks from the date of receipt of a copy of this order and produce the
receipt before the registry failing which, the civil revision petition shall stand dismissed
automatically without any further reference. Since the original suit is of the year 1999, the trial
Court is directed to dispose of the same within a period of four months from the date of receipt of
a copy of this order. In the facts and circumstances of the case, the parties are directed to bear
their own costs. Consequently, connected miscellaneous petition C.M.P.No.13645 of 2004 is
closed.
Revision allowed.

[2008 (1) T.N.C.J. 743 (Mad)]


MADRAS HIGH COURT
BEFORE:
S.J. MUKHOPADHAYA AND M. VENUGOPAL, JJ.
M/S. APOLLO TYRES LTD. ...Appellant
Versus
M/S. TRANSPORT CORPORATION OF INDIA ...Respondent
[O.S.A. No. 281 of 2007 and M.P.No. 1 of 2007, decided on 3 January, 2008]
rd

Civil Procedure Code, 1908—Order VII, Rule 11—Rejection of suit for non-
prosecution—Summons suit to applicant but returned with note that defendant had left
address but repeatedly summons were sent to said address—No step taken for 10 years—
After 10 years summons served personally—Defendant applicant sought rejection of plaint
on ground of delay—Held, due to work load of Court case was not taken up by Court for
which plaintiff cannot suffer—Thus, Court below rightly rejected application of
defendant—Petition dismissed.
(Paras 9 to 11)
Case law.—AIR 2004 SC 2093—referred.
Counsel.—Mr. T. Poornam, for the appellant; Mr. R. Arumugham, for the respondent.
JUDGMENT
S.J. MUKHOPADHAYA, J.—This appeal has been preferred by the appellant, M/s. Apollo
Tyres Ltd., who is the 1st defendant in the suit, against order dated 12th June, 2007, passed by
learned Judge in Application No. 2309/06 in C.S. No.1226/93.
The appellant/1st defendant preferred an application under Order VII, Rule 11 read with
Section 151 of the Code of Civil Procedure to dismiss the suit for non-prosecution, but learned
Judge rejected such application.
2. The suit was preferred by the respondent, M/s.Transport Corporation of India,
Madras, for a decree against the 1st defendant to pay the plaintiff a sum of Rs.44,38.576/- with
interest at the rate of 12% p.a., registered as C.S. No.1226/93 in the Original Side of this Court.
Judges summons were sent and number of times returned and having ultimately served on the 1st
defendant in 2006 and on appearance, the 1st defendant filed the aforesaid application under
Order VII, Rule 11 read with Section 151 of the Code of Civil Procedure to dismiss the suit for
non-prosecution.
3. Counsel appearing on behalf of the appellant submitted that the suit was filed on 23rd
July, 1993, specifically showing the address of the 1st defendant as that of registered office, but
the respondent/plaintiff failed to take summons to the registered office inspite of the fact that the
process server returned the summons on number of occasions stating that the 1st defendant could
not be found at the address given in the summons, as the 1st defendant has vacated. In fact,
no step was taken for about 13 years. As there is inordinate, inexplicable and inexcusable delay
of 13 years in prosecuting the suit diligently and grave injustice and prejudice have been caused
to the 1st defendant, the suit should have been dismissed for non-prosecution.
Learned counsel referred to the factual aspect to suggest the manner in which the
plaintiff tried to drag the matter. It was submitted by learned counsel for the appellant that the
plaintiff, while clearly mentioned that the registered office of the 1st defendant is at 6th Floor,
Shanmugam Road, Cochin, Kerala 682032, as also at No.45, Giri Road, Madras-17, from the
perusal of the Court record it will be evident that the summons were sent to its address at No.45,
Giri Road, Madras-17 only. The first summons was returned unserved on 18th November, 1994,
followed by another summons, which were also returned unserved on 23rd January, 1996, 16th
July, 1996 and 11th December, 1996. It was contended that all the time though the summons
were returned with note that the defendant had left the address, but, repeatedly, summons were
sent to the said address. After December, 1996, after about ten years, no step was taken till 13th
February, 2006, when counsel for the plaintiff sought permission for private notice for service on
the 1st defendant, which was ultimately served.
4. The grievance as made on behalf of the appellant is that because of the callous attitude
on the part of the plaintiff, who tried to delay and drag the matter, now the 1st defendant will not
be in a position to trace the documentary evidence and may be in a disadvantageous position to
produce its witnesses, many of the employees as may have left the company in the meantime,
who had knowledge of occurrence of fire as took place in 1993. It was further submitted that the
1st defendant being a company could get the details of the facts and information with regard to
incident alleged to have taken place in 1993 only through its employees posted at Madras, many
of whom may have left by this time. If the summons would have been served as back as in 1993-
94, according to counsel, the appellant could have atleast kept track of the employees, who were
posted on the relevant date at Chennai.
5. Learned counsel appearing on behalf of the respondent/plaintiff submitted that no case
is made out to dismiss the suit under Order VII, Rule 11 or Section 151 of the Code of Civil
Procedure. In fact, none of the clause of Order VII, Rule 11 could be invoked in the present case.
On the other hand, according to counsel for the appellant, if power is not there under Order
VII, Rule 11, the Court has inherent jurisdiction under Section 151 of the Code of Civil
Procedure to notice the delaying attitude of the plaintiff and to dismiss the suit for non-
prosecution. Reliance was placed on Supreme Court decision in Shipping Corporation of
India Ltd. v. Machado Brothers reported in AIR 2004 SC 2093, wherein Supreme Court
explained the inherent power of the Court under Section 151 of the Code of Civil Procedure.
6. We have heard the parties, noticed the record and the judgments as referred to by the
counsel for the parties.
7. Order VII, Rule 11 empowers the Court to reject a plaint under the following
circumstances:—
“11. Rejection of plaint.—The plaint shall be rejected in the following cases:—
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by
the Court to correct the valuation within a time to be fixed by the Court, fails to
do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper
insufficiently stamped, and the plaintiff, on being required by the Court to
supply the requisite stamp-paper within a time to be fixed by the Court, fails to
do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of Rule 9.
Provided that the time fixed by the Court for the correction of the
valuation or supplying of the requisite stamp-papers shall not be extended unless
the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented
by any cause of an exceptional nature from correcting the valuation or
supplying the requisite stamp papers, as the case may be, within the time fixed by
the Court and that refusal to extend such time would cause grave injustice to the
plaintiff.”
The present suit of the respondent being not covered by any of the clause of Order VII,
Rule 11 of the Code of Civil Procedure, there was no occasion for learned Judge to dismiss the
plaint.
8. So far as the inherent power of Court under Section 151 of the Code of Civil Procedure
is concerned, in the case of Shipping Corporation of India Ltd. (supra), the Supreme Court made
the following observation:—
“20. From the above, it is clear that if there is no specific provision which
prohibits the grant of relief sought in an application filed under Section 151 of
the Code, the Courts have all the necessary powers under Section 161, CPC to
make a suitable order to prevent the abuse of the process of Court. Therefore, the
Court exercising the power under Section 151, CPC first has to consider whether
exercise of such power is expressly prohibited by any other provisions of the
Code and if there is no such prohibition then the Court will consider whether
such power should be exercised or not on the basis of facts mentioned in
the application.”
9. In the present case, though there is no express prohibition by any other provisions of the
Act to dismiss the suit for non-prosecution, but the question raise is whether such power should
have been exercised or not on the basis of the facts of the case.
10. It is true that the summons were issued three times between 1994 and 1996, but when
the fourth time the summons returned unserved, it appears that the matter was never placed
before the Court immediately. It is not the case of the appellant/respondent that the case was
listed after 11th December, 1996 and before January, 2006 and the report of the process server
was brought to the notice of the plaintiff or its counsel and inspite of the same, no steps were
taken for fresh summons on the 1st defendant. If about ten years have passed and due to the work
load of the Court the case was not taken up by the Court, as it appears from record, the plaintiff
cannot be held guilty nor can suffer for the same. In this background, if learned Judge refused to
entertain the application as was preferred by the 1st defendant, no interference is called for with
such order.
11. There being no merit, the appeal is dismissed. Consequently, connected miscellaneous
petition is also dismissed. But there shall be no order as to costs.
Appeal dismissed.

[2008 (1) T.N.C.J. 747 (Mad)]


MADRAS HIGH COURT
BEFORE:
M. VENUGOPAL, J.
M. SUDHAKAR ...Petitioner
Versus
SARALA KRISHNAN AND ANOTHER ...Respondents
[C.R.P. (NPD) No. 586 of 2004 and C.M.P. No. 4890 of 2004, decided on 26 February, 2008]
th

Limitation Act, 1963—Section 5—Condonation of delay— Dismissal of suit—Counsel


who was keeping track died— Plaintiff was on duty in different cities—When plaintiff
came to know of death of his counsel he enquired about his case—In mean time case was
dismissed in default—From material on record plaintiff shown sufficient cause for not
prosecuting case—Court below considering facts condoned delay—No illegality—Petition
dismissed. (Para 23)
Case law.—2002 (1) CTC 769—relied on; 2001 (1) MLJ 768; 2000 (2) CTC 27; 2008 (1)
LW 141; 1999 (1) LW 739; AIR 1951 All 317; 2001 (1) MLJ 105; 2001 (1) MLJ 231; 1981 (3)
SCR 509—referred.
Counsel.—Mr. A. Seshan, for the petitioner; M/s. E. Prabhu, Mr. S. Mohan, for
Respondents 1 and 2.
JUDGMENT
M. VENUGOPAL, J.—The civil revision petition has been preferred by the revision
petitioner/respondent/defendant as against the order passed by the learned VI Assistant Judge,
City Civil Court, Chennai in I.A.No.21198 of 2002 in O.S.No.6494/1997 on 18.09.2003.
2. The respondents/petitioners/plaintiffs have filed I.A.No.21198 of 2002 under Section 5
of the Limitation Act, praying for condonation of delay of 1375 days in filing an application to
set aside the order of dismissal of Suit O.S.No.6494 of 1997 dated 15.10.1998.
3. The learned VI Assistant Judge, City Civil Court, Chennai, has passed conditional
orders in I.A.No.21198/2002 in O.S.No.6494/1997 on 18.09.2003 inter alia observing that ‘this
petition is allowed on payment of cost of Rs.1,000/- to be paid on or before 03.10.2003, failing
which the petition shall stand dismissed. Call on 06.10.2003’.
4. Aggrieved against the conditional orders passed in I.A.No.21198/2002 in
O.S.NO.6494/1997 by the learned VI Assistant Judge, City Civil Court on 18.09.2003, the
petitioner/respondent/defendant has filed the present revision before this Court.
5. According to the learned counsel for the revision petitioner/ respondent/defendant, the
Trial Court erred in not taking into account of the fact that the respondents/petitioners/plaintiffs
have not assigned satisfactory reasons to condone the long delay of 1375 days and that the
Court below has not discussed or considered whether any sufficient cause has been made out to
condone the delay when the suit is of the year 1981 and that the reasoning assigned in allowing
the application to condone the long delay are unsustainable in law and therefore prays for
allowing the revision petition.
6. The learned counsel for the respondents/petitioners/plaintiffs contend that the Suit
C.S.No.395/82 originally filed before the Hon’ble High Court, consequent to change in pecuniary
jurisdiction was transferred to the file of the VI Assistant Judge, City Civil Court, Chennai
and renumbered as O.S.No.6494/1997 and when came up for hearing on 15.10.1998 that there
was no representation on the side of respondents/petitioners/plaintiffs and therefore the Court was
perforced to pass an order of dismissing the suit for default because of the non-appearance of the
respondents/petitioners/plaintiffs and this factum of dismissal of the suit came to the knowledge
of the respondents/petitioners/plaintiffs only on 29.07.2002 and resultantly there has been a delay
of 1375 days in filing Section 5 application and that the Court below has taken into
consideration all the averments mentioned in the affidavit filed by the
respondents/petitioners/plaintiffs in I.A.No.21198 of 2002 and passed a conditional order dated
18.09.2003 directing the respondents/petitioners/plaintiffs to pay a sum of Rs.1,000/- towards
costs to be paid on or before 03.10.2003 etc., and the same need not be interfered with.
7. The learned counsel for the revision petitioner/respondent/ defendant, in support of
his contention that the respondents/petitioners/plaintiffs have not shown sufficient cause to
condone the long delay of 1375 days, relied on the decision (2001)1 M.L.J. 768, Vaijayanthimala
and others v. A. Ramasamy, whereby it is laid down as follows:
“Civil Procedure Code (V of 1908), Order IX, Rule 13 - Petition for setting aside ex parte
decree - When may be allowed - “Was prevented by sufficient cause from appearing”
- Implication of.
It is true that the Supreme Court in C.P.Srivatsava v. Shri R.K.Raizada, (2000) 2 C.T.C.
27, while considering the words “was prevented by any sufficient cause from appearing”
held that the said words must be liberally construed to enable the Court to do complete
justice between the parties particularly when no negligence or inaction is imputable
to erring party. However, in this case even though all the 4 defendants were set ex parte
as early as on 5.7.1996, there is no explanation whatsoever from the petitioners 2 to 4 for
their non-appearance either on 05.07.1996 when the ex parte order was passed or on
11.07.1996 when the ex parte decree was passed against them and the only explanation
offered by the 1st petitioner was that she was affected from jaundice from 8.7.1996.
There was no explanation even by the 1st petitioner for her absence to file written
statement on 05.07.1996 on which date even according to the 1st petitioner she was not
affected by jaundice. In the absence of any explanation, it cannot be contended that there
was sufficient cause for the petitioners for their failure to appear before the Court either
on 05.07.1996 or on 11.07.1996. In the absence of non-explanation for the absence of
the petitioners on 05.07.1996, there is no merit in the contention of the learned counsel
for the petitioners for setting aside the ex parte decree.”
7a. In the decision 2008 (1) LW, 141 and 142, Bagh Mal (alias) Ram Bux and others v.
Munshi (D) by LRs; the Hon’ble Supreme Court has observed as follows :
“A law cannot be construed in a manner which would defeat the ends of justice - when an
appeal/suit abates, the same may not amount to adjudication of a decree on merit, but
indisputably it would attain finalaity - decision on merits is not the only test to determine
the finality of decision - finality gained due to abatement is an illustration of the
aforementioned variety”
8. Per contra, the learned counsel for the respondents/petitioners/plaintiffs submits that the
condonation of delay is the discretion of the Court and placed reliance on the decision 1999 (1)
LW 739 between N.Balakrishnan v. M.Krishnamurthy, where under it is held as follows:
“Limitation Act (1963), Section 5 - Discretion of Court - Section not to be construed as
saying that such discretion is to be exercised only when the delay is within certain
limit - Length of delay is no matter - Sufficiency of the explanation is the relevant
criterion - Duty of Court is to advance substantial justice and give liberal construction to
the section.
Rules of limitation are not meant to destroy rights of parties - Refusing to condone delay
is foreclosing a suitor from putting forth his cause - There is no presumption that delay in
approaching Court is always deliberate - Delay condoned on terms.”
9. He also pressed into service (2001) 1 M.L.J. 105 between R.M.Arunachalam v.
P.L.R.Arunachalam Chettiar and others, wherein it is observed as follows:—
“Limitation Act (XXXVI of 1963), Section 5 - Delay of 558 days in filing petition to
restore the suit dismissed for default - Petitioner stating that he met calamities in life,
resulting in mental suffering etc., resulting in delay - Even if the delay is not
properly explained, petitioner should not be punished with a denial of opportunity to
prosecute his case - petition allowed on payment of cost of Rs.2,500/-”.
10. Further, attention of this Court is also drawn to the decision (2001) 1 M.L.J.231
between Devi and others v. K.Jayaraman, wherein it is held as follows:
“Limitation Act (XXXVI of 1963), Section 5 - Application under, for condonation of
delay - Delay quite long - Petitioner, held, cannot be punished with denial of
opportunity to presecute the main case - Application, can be allowed with costs.”
11. It is pertinent to point out that earlier before the Hon’ble High Court in C.S.No.395/82
(later transferred and renumbered as O.S.No.6494/97 on the file of the VI Assistant Judge, City
Civil Court, on account of pecuniary jurisdiction) an ex-parte preliminary decree was passed on
01.11.1991 and the same was set aside by the Hon’ble High Court as per order made in
Application No.4024/96 (filed by the revision petitioner/defendant ) dated 31.10.1996.
12. The stand of the revision petitioner/respondent/defendant is that the averments in the
affidavit in I.A.No.21198/2002 filed by the respondents/petitioners/plaintiffs are vague and that
no particulars or details are furnished and that he is unaware of the facts mentioned regarding the
counsel appearing for the respondents/petitioners/plaintiffs and that the 2nd respondent/2nd
petitioner/2nd plaintiff lost her husband before 01.11.1991 when an ex-parte decree was granted
to them.
13. According to the revision petitioner, the respondents/petitioners/plaintiffs used to visit
one Madhavan, their relative by coming to Madras on number of occasions after 1991 till 2002
and even subsequently and as a matter of fact 2nd respondent/2nd petitioner’s son-in-law was
employed in a bank in Madras and therefore the 2nd respondent/2nd petitioner/2nd plaintiff used
to visit her daughter’s house in Madras frequently and that 2nd petitioner’s daughter Kavitha
was employed as a teacher in some school in madras and that the
respondents/petitioners/plaintiffs had number of friends and relatives in Madras and therefore
they used to visit Madras frequently and as such the contrary averments found in the affidavit of
the respondents/petitioners/plaintiffs in I.A.No.21198 of 2002 are factually incorrect.
14. Expatiating his submission, the learned counsel for the revision petitioner submits
that the respondents/petitioners/plaintiffs were not diligent in prosecuting in the lis and that since
the revision petitioner has married a girl of his own choice, the respondents are not
interested in getting a share in the property and therefore they have filed the I.A.No.21198/2002
for condonation of delay to cause harassment and annoyance to the revision petitioner and in
short the application suffer from lack of bona fides.
15. The stand of the respondents/petitioners/plaintiffs is that the 1st respondent/1st
petitioner’s husband working in leading private company was being transferred from place to
place like Baroda, Assam, New Delhi, Pune, etc., and resultantly the 1st respondent/1st petitioner
was away from Chennai for a long time and since their then counsel used to write to them
regularly apprising the progress of the matter they were confident that it was being handled well
and at this point of time, the 2nd respondent/2nd petitioner was settled in Kerala was attending to
her bedridden husband, who was ailing for near 7 years and therefore the 2nd respondent/2nd
petitioner/2nd plaintiff could not go anywhere else, etc. The other reasons ascribed by the
respondents/petitioners/plaintiffs are that because of their family commitments and pre-
occupations they were genuinely unable to visit Chennai and from 1995 onwards, letters from the
counsel Mr.Sugumaran stopped coming and inspite of their letters, there was no reply and
consequently, they could not keep track of the case and only when the 1st respondent/1st
petitioner/1st plaintiff came to Chennai in June 2002, she knew about the demise of her counsel
in 2001 after long illness and only in July 2002 with the help of their present counsel they came
to know about the transfer of C.S.395/1982 from the file of the Hon’ble High Court to the file of
the VI Assistant Judge, City Civil Court, Chennai and renumbered as O.S.No.6494/1997 and the
same was dismissed on 15.10.1998 owing to their non- appearance, by the Court below.
16. The pith and substance of the contention of the revision
petitioner/defendant/respondent is that the respondents/petitioners/plaintiffs have not prosecuted
the matter diligently for a period of nearly 7 years and in the absence of ‘sufficient case’,
I.A.No.21198/2002 is liable to be dismissed, since the same is not maintainable in law.
17. It is to be borne in mind that the term ‘sufficient cause’ is elastic so as to enable
the Court of law to apply the same in a purposeful way to deliver substantial justice to a litigant.
As a matter of fact, there cannot be any presumption that the delay has occasioned wantonly or on
account of the culpable negligence or on account of the mala fides. After all, a party does not
stand to bona fide by resorting to delay. Per contra he/she runs a serious risk, in the considered
opinion of this Court.
18. Generally, if the mistake is not attributed to a litigant, the same can be condoned as per
decision AIR 1991, All 317, U.P. State Road Transport Corporation v. Kedar Singh and others.
19. It is not out of place to refer to the decision 1981 (3) SCR 509, Rafiq and another v.
Munshilal and another, whereby it is observed that ‘it is not proper that an innocent litigant, after
doing everything in his power to effectively participate in his proceedings by entrusting his case
to the Advocate, should be made to suffer for the inaction, deliberate omission or misdemeanour
of his agent and for whatever reason the Advocate might have absented himself from the court,
the innocent litigant could not be allowed to suffer injustice for the fault of his Advocate’.
20. At this juncture, it is quite apt to point out that Rule 32 of the Civil Rules of Practice in
regard to proof of facts by Affidavit runs as follows:
“32. Proof of facts by affidavit.—Any fact required to be proved upon an interlocutory
proceeding shall, unless otherwise provided by these rules, ordered by the Court,
be proved by affidavit, but the Judge may, in any case, direct evidence to be
given orally; and there upon the evidence shall be recorded and exhibits marked,
in the manner as in a suit and lists the witnesses and exhibit shall be prepared
and annexed to the judgement.”
21. In fact refusing to condone the delay can result in meritorious matter being thrown at
the very early stage and cause of justice being defeated. When delay is condoned, the highest
thing that can happen is that a cause can be decided on merits after hearing the parties. In short,
when substantial justice and technical considerations are pitted against each other, cause of
substantial justice deserves to be preferred for the other side cannot lay a claim to have vested
right in injustice being done because of non-deliberate delay. It is to be noted that judiciary is to
be respected not on account of its power to legalise injustice on technical grounds but because it
is capable of removing injustice and is expected to do so.
22. As far as the present case is concerned, that both parties have not availed the remedy of
letting in oral or documentary evidence to prove any fact or disprove the same. Obviously they
relied on the affidavit and counter affidavit filed in the matter in issue and the Court below
has passed orders. It appears that the cost of Rs.1,000/- awarded by the court below has been
refused to be received by the revision petitioner/respondent/defendant and the same has been
deposited into Court. It is true that the length of delay is immaterial.
23. Inasmuch as the respondents/petitioners/plaintiffs have ascribed sufficient reasons that
their earlier counsel, who was keeping track of the case has expired and their letters of reply
proved futile and since they came to know about his death (expired in 2001) only when the 1st
respondent/1st petitioner/1st plaintiff came to Chennai in June, 2002 she knew about the plight of
their case through the present counsel in July 2002 etc., this Court is not inclined to set aside the
discretionary conditional order passed by the Trial Court in I.A.No.21198/2002 in
O.S.No.6494/1997 dated 18.09.2003 and bearing in mind the decision of the Hon’ble Supreme
Court reported in 2002 (1) CTC 769 between Ramnath Sao (a) Ramnath Sahu and others v.
Gobardhan Sao and others, and since Courts are to take a common pragmatic liberal view in
these matters because of the axiomatic fact that processual law always subservient and is in aid of
justice, the civil revision petition is dismissed by this Court for the reasons assigned in the
revision. Consequently the miscellaneous petition is closed.
24. Since the cost/compensation is the penalty for condoning delay (certainly not a
premium), this Court sitting in revision, however directs the respondents/petitioners/plaintiffs to
deposit a further sum of Rs.1,000/- (in addition to the sum of Rs.1,000/- already deposited in
lower Court) to the credit of the Suit O.S.No.6494/1997 on the file of the VI Assistant Judge, City
Civil Court, Chennai within three weeks from the date of receipt of copy of this order considering
the facts and circumstances of the case to prevent aberration of justice. It is open to the revision
petitioner/defendant to receive the costs by filing necessary payment out application in the trial
Court in the manner known to law. Having regard to the facts and circumstances of the case,
the parties are directed to bear their own costs in this revision.
Revision dismissed.

[2008 (1) T.N.C.J. 754 (Mad)]


MADRAS HIGH COURT
BEFORE:
A.C. ARUMUGAPERUMAL ADITYAN, J.
MANIMEKALAI ...Petitioner
Versus
CHINNAPONNU AND OTHERS ...Respondents
[C.R.P. (NPD) No. 345 of 2008 and M.P. No. 1 of 2008, decided on 25 February, 2008]
th

(A) Motor Vehicles Act, 1988—Section 166—Hindu Succession Act, 1956—Sections 8


and 10—Determination of compensation and apportionment—Compensation awarded to
injured—After award he died—Mother also claimed share in compensation—Court below
allowed petition—Legality of—Held, after award compensation becomes property of
injured who later died— Property of person died intestate to be divided among heirs—
Hence, Court below rightly allowed application of mother— Petition dismissed.
(Para 4)
(B) Civil Procedure Code, 1908—Section 11—Res-judicata—Issue not raised before
Court below—Hence, Revisional Court cannot go into this question.
(Para 5)
Case law.—AIR 1987 SC 1690.
Counsel.—Mr. N. Manoharan, Advocate, for the petitioner; Mr. M. Jaichandran,
Advocate, for the respondent 1.
JUDGMENT
A.C. ARUMUGAPERUMAL ADITYAN, J.—This revision has been preferred against the
order passed in I.A.No.686 of 2007 in M.C.O.P.No.377 of 1999 on the file of the Motor
Accidents Claim Tribunal/Chief Judicial Magistrate, Salem. M.C.O.P.No.377 of 1999 was
filed by one Ramasamy for compensation, for the injury, he had sustained in the accident
claiming a sum of Rs.7,00,000/-. In M.C.O.P.No.377 of 1999, an award was passed on 11.5.2004
for a sum of Rs.3,05,671/-. After passing of the award, the said Ramasamy died on 28.12.2004.
I.A.No.1275 of 2005 was filed by the legal representatives of the deceased Ramasamy i.e., wife
and children for impleading them as legal representatives of the deceased Ramasamy in
M.C.O.P.No.377 of 1999 and to array the mother of the deceased Ramasamy/revision petitioner
herein as 8th respondent in M.C.O.P.No.377 of 1999.
2. The first respondent herein had filed I.A.No.686 of 2007 claiming a sum of
Rs.1,13,607 towards her share as legal representative of the deceased Ramasamy, out of the total
deposit amount of Rs.4,54,428/-, while impleading the wife and children of the deceased
Ramasamy as respondents in I.A.No.686 of 2007. The said application was resisted by the other
legal representatives of the deceased Ramasamy contending that the petitioner in I.A.No.686 of
2007/the mother of the deceased Ramasamy is not entitled to claim a sum of Rs.1,13,607/- as that
of one of the legal representatives of the deceased Ramasamy. But as a dependent, she is entitled
to a sum of Rs.22,500/-(Rs.15,000 + Rs.7,500/-) only.
3. Negativing the contentions of the respondents in I.A.No.686 of 2007, the learned Motor
Accidents Claims Tribunal(Chief Judicial Magistrate) Salem had allowed the application filed
by the mother of the deceased Ramasamy, holding that as a Class I heir of the deceased
Ramasamy, the petitioner in I.A.No.686 of 2007- the mother of the deceased Ramasamy is
also entitled to a sum of Rs.1,13,607/- as that of the wife and children of the deceased Ramasamy.
Aggrieved by the findings of the learned Motor Accidents Claims Tribunal/Chief Judicial
Magistrate, Salem, the first respondent in I.A.No.686 of 2007 has preferred this revision.
4. When the civil revision petition was taken up for hearing, the learned counsel appearing
for the revision petitioner Thiru N.Manoharan, producing a Judgment reported in Gujarat State
Transport Corporation, Ahmedabad v. Ramanbhai Prabhatbhai, AIR 1987 SC 1690, contended
that in a case of death in a motor accident, all the legal representatives of the deceased are
entitled to a remedy for realisation of the compensation, as provided under Sections 110-A to
110-F of the Motor Vehicles Act and the learned counsel would contend that the petitioner in
I.A.No.686 of 2007 in M.C.O.P.No.377 of 1999 being the mother of the deceased Ramasamy is
not entitled to claim a share as a legal heir as that of the wife and children of the deceased
Ramasamy. The relevant observation in the said Judgment of the Honourable Apex Court
relevant for the purpose of deciding this revision runs as follows:
“Every legal representative who suffers on account of the death of a person due to a
motor vehicle accident should have a remedy for realisation of compensation and that is
provided by Section 110-A to 110-F of the Act. These provisions are in consonance with
the principles of law of torts that every injury must have a remedy. It is for the Motor
Vehicles Accidents Tribunal to determine the compensation which appears to it to be
just as provided in Section 110-B of the Act to specify the person or persons to whom
compensation shall be paid. The determination of the compensation payable and its
apportionment as required by Section 110-B of the Act amongst the legal representatives
for whose benefit an application may be filed under Section 110-A of the Act have to be
done in accordance with well-known principles of law. We should remember that in an
Indian family brothers, sisters and brothers’ children and sometimes foster children live
together and they are dependent upon the bread-winner of the family and if the bread
winner is killed on account of a motor vehicle accident, there is no justification to deny
them compensation relying upon the provisions of the Fatal Accidents Act,1855
which as we have already held has been substantially modified by the provisions
contained in the Act in relation to cases arising out of motor vehicles accidents.”
There cannot be two opinion with regard to the principles laid down in the above ratio. In
the abovesaid judgment, the legal representatives have filed the claim application , after the death
of the deceased whereas in the case on hand, the deceased Ramasamy had filed M.C.O.P.No.377
of 1999 claiming the compensation, for the injury, he had sustained in the accident. After an
award was passed in M.C.O.P.No.377 of 1999, Ramasamy died. So, after the death of
Ramasamy, all the legal heirs of the said Ramasamy are entitled to a share in the award passed
which has become the estate of Ramasamy, after his death. Under Section 8 of the Hindu
Succession Act, the property of a male Hindu dying intestate shall devolve according to the
provisions of this chapter:—
(a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives
specified in Class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the
deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
As per Section 10 of the Hindu Succession Act, 1956, the property of an intestate shall be
divided among the heirs in Class I of the Schedule in accordance with the following Rules:—
Rule 1. - The intestate’s widow, or if there are more widows than one, all the widows
together, shall take one share.
Rule 2.- The surviving sons and daughters and the mother of the intestate shall each take
one share.
Rule 3.- The heirs in the branch of each pre-deceased son or each pre-deceased daughter of
the intestate shall take between them one share.
Rule 4.- The distribution of the share referred to in Rule 3:—
(i) among the heirs in the branch of the pre-deceased son shall be so made that his
widow(or widow together) and the surviving sons and daughters get equal portions,
and the branch of his pre-deceased sons gets the same portion;
(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the
surviving sons and daughters get equal portions.”
So, the petitioner in I.A.No.686 of 2007 in M.C.O.P.No.377 of 1999 being the mother of
the deceased Ramasamy is entitled to a share to that of the wife and children of the deceased
Ramasamy as correctly held by the Court below.
5. The learned counsel appearing for the revision petitioner would contend that the
mother/the petitioner in I.A.No.686 of 2007 had filed I.A.No.36 of 2007 for the same relief which
was dismissed for non- prosecution and that I.A.No.686 of 2007 is hit by the principles of res
judicata. But the said contention was not raised before the Court below in his counter to
I.A.No.686 of 2007. Under such circumstances, in this revision, we cannot go into the question as
to whether I.A.No.686 of 2007 is barred under the principle of res judicata or not? Under such
circumstances, I do not find any reason to interfere with the findings of the learned Motor
Accidents Claims Tribunal(Chief Judicial Magistrate) Salem in I.A.No.686 of 2007 in
M.C.O.P.No.377 of 1999.
6. In fine, this civil revision petition is dismissed. No costs. Consequently, connected
M.P.No.1 of 2008 is also dismissed.
Petition dismissed.

[2008 (1) T.N.C.J. 758 (Mad)]


Madras High Court
Before:
S.J. MUKHOPADHAYA AND R. SUDHAKAR, JJ.
R.P. CHINNAMANI NADAR ...Appellant
Versus
L. THOMAS NADAR ...Respondent
[O.S.A. Nos. 21 and 22 of 2005, decided on 21 January, 2008]
st

Civil Procedure Code, 1908—Order II, Rule 2—Suit to include whole claim—Suit for
recovery of certain amount—No specific pleading was originally made with regard to
present claim in earlier suit—Both transactions appears to have taken place out of same
cause of action—If doubt has been raised and single Judge was of prima facie view that
subsequent suit attracted Order II, Rule 2, this Court not inclined to interfere with finding
—Appeal dismissed. (Paras 7 and 8)
Counsel.—Mr. S. Subbaiah, for the appellant; Mr. M.S. Krishnan, for M/s. Sarvabhauman
Associates, for the respondents.
JUDGMENT
S.J. MUKHOPADHAYA, J.—In these two appeals, the plaintiff/ appellant has
challenged common order dated 5th November, 2004, by which applications for temporary
injunction and for furnishing security were rejected by learned Judge.
2. Plaintiff/appellant has preferred the suit in question, C.S. No.479/03 directing the
defendant/respondent to pay plaintiff a sum of Rs. 30,81,500/- together with further interest on
Rs.20 lakhs at the rate of 18% per annum from the date of plaint till the date of realisation apart
from cost of the suit. In the said suit, O.A. No.619/03 was preferred by plaintiff/appellant for
interim injunction restraining the defendant/ respondent from alienating the property measuring
61 cents situate in No.15, Vadakarai Village, Saidapet Taluk and another application No.2911/03
was also filed by plaintiff/appellant for furnishing security to the tune of Rs.35 lakhs failing
which to attach property measuring 61 cents in No.15, Vadakarai Village, Saidapet Taluk. Both
the applications were rejected by learned single Judge, as stated above.
3. The plaintiff/appellant claimed that the respondent borrowed a sum of Rs.25 lakhs
promising to pay with interest at the rate of 36% per annum within one year from 23rd June,
1998. A deed of undertaking is stated to have been executed by the respondent on the said date,
i.e., 23rd June, 1998. Further sum of Rs.20 lakhs was also borrowed by respondent from him. A
letter of understanding stated to have been executed by respondent in this regard on 31st March,
2000 undertaking that the payment of Rs.20 lakhs would be paid on or before 10th June, 2000.
4. Before the trial Court, the plaintiff/appellant submitted that the respondent was
attempting to alienate the property in favour of other parties and if he is allowed to do so, the
plaintiff cannot enjoy the fruits of the decree as may be passed in the suit. It was further
submitted that the respondent had already transferred most of the properties in the names of the
members of his family with a view to defeat the rights of the plaintiff/applicant and,
therefore, unless interim order is passed, the plaintiff’s right would be defeated.
On the other hand, it was submitted on behalf of the respondent that the plaintiff/applicant
had chosen to file earlier a suit, C.S. No.904/00 before this Court in November, 2000 for recovery
of certain amounts. In the said suit, though the plaintiff/applicant had alleged default of Rs.20
lakhs during June, 2000 due and payable to the plaintiff/applicant, no statement was made with
regard to the present claim of Rs.25 lakhs as made in the suit. No details were furnished in the
said suit and, thereby, the present suit, C.S. No.479/03 itself is not maintainable under Order II,
Rule 2 of the Code of Civil Procedure, the plaintiff/applicant having not obtained leave of the
Court. It was also brought to the notice of the Court that the property in question had already
been mortgaged to Tamil Nadu Mercantile Bank by the respondent in respect of which a civil
suit, O.S. No.55/99 is pending on the file of Sub Court, Madurai.
5. In reply, it was contended on behalf of the plaintiff/applicant that the amount involved
in the suit preferred by Tamil Nadu Mercantile Bank is about Rs.4.5 lakhs only and,
thereby, there is every possibility on the part of the respondent to alienate the property. Learned
single Judge, having noticed the submission and on perusal of the plaint of C.S. No.904/00, came
to a conclusion that the present suit, C.S. No.479/03, prima facie not maintainable in view of
Order II, Rule 2 of the Code of Civil Procedure and that the plaintiff/applicant has come with
clean hands.
6. Similar argument was advanced by learned counsel for the parties before this Court.
We have also noticed the plaint of C.S. No.904/00, present suit, C.S. No.479/03 and C.S.
No.844/03, which has also been preferred by the plaintiff/appellant against the present respondent
claiming Rs.11 lakhs towards compensation for criminal complaint.
7. In the earlier suit, C.S. No.904/00, the parties are same with similar position, appellant
is the plaintiff therein and the respondent is the defendant. Though certain amendment in the
prayer has been made subsequently, it appears that no specific pleading was originally made with
regard to the present claim in the earlier suit. Both the transactions appears to have taken place
out of the same cause of action. In the aforesaid circumstances, if a doubt has been raised and
learned single Judge was of prima facie view that the subsequent suit attracted Order II, Rule 2 of
the Code of Civil Procedure, we are not inclined to interfere with such prima facie finding or to
give a specific finding in this regard at this stage as such issue has to be determined in the suit by
the trial Court.
We have also tried to find out whether a prima facie case is made out on behalf of the
plaintiff/appellant for interim injunction for furnishing security as claimed for in two applications
in question. We are of the view that no such ground has been made atleast before us to grant
temporary injunction or to direct the respondent to furnish security as sought for.
8. There being no merit, both the appeals are dismissed. But there shall be no order as to
costs.
Appeals dismissed.

[2008 (1) T.N.C.J. 760 (Mad)]


MADRAS HIGH COURT
BEFORE:
A.C. ARUMUGAPERUMAL ADITYAN, J.
NASEEMA BEGUM ...Petitioner
Versus
MOHD. AKBAR BADSHA ...Respondent
[C.R.P. (NPD) No. 401 of 2008 and M.P. No. 1 of 2008, decided on 26 February, 2008]
th

Tamil Nadu Buildings (Lease and Rent Control) Act, 1960— Section 10 (2)(ii) (a)
—Sub-letting—Eviction—Landlord let out premises to tenant—Tenant sub-let it to his
sister—Concurrent finding recorded against tenant—Hence this revision—Held, from
material on record there is nothing which could show that sub-tenant is in occupation
in building as sub-tenant—Thus finding liable to be interfered with—Petition allowed.
(Paras 8 and 9)
Case law.—1985 (1) MLJ 53; 1984 (1) MLJ 366; 1963 (1) MLJ 125—referred.
Counsel.—Mr. T.S. Sivagnanam, Advocate, for the petitioner; Mr. S.I. Samiullah,
Advocate, for the respondent.
Judgment
A.C. Arumugaperumal Adityan, J.—This revision has been preferred against the
concurrent findings of the learned Rent Controller (XV Judge) Court of Small Causes, Chennai in
R.C.O.P.No.298 of 2006 which was confirmed by the learned Rent Control Appellate Authority
(VIII Judge,) Court of Small Causes, Chennai in R.C.A.No.744 of 2006. The second respondent
in R.C.O.P.No.298 of 2006 is the revision petitioner herein. R.C.O.P.No.298 of 2006 was
filed by one Mohamed Akbar Badsha against one Noorul Islam and Naseema Begum/revision
petitioner herein under Section 10(2)(ii)(a) of Tamil Nadu Buildings (Lease and Rent
Control)Act(hereinafter referred to as “the Act”).
2. According to the landlord/respondent herein, the petition schedule building at Door
No.40/42, Venkatesa Naicken First Street, Mount Road, Chennai-2 was leased out by the
petitioner Mohamed Akbar Badsha to Noorul Islam for rent. It is the case of the petitioner that the
first respondent Noorul Islam had sub-let the said premises to the second respondent Naseema
Begum, who is none other then his own sister. The said petition was resisted by Naseema
Begum/revision petitioner/second respondent in R.C.O.P.No.298 of 2006 on the ground that even
in an earlier petition filed by the landlord Mohamed Akbar Badsha in R.C.O.P.No.501 of 2002
which was filed against her mother Fathima Bi and her son Noorul Islam (first respondent in
R.C.O.P.No.298/2006) for eviction and during the pendency of R.C.O.P.No.501 of 2002, the
mother of Noorul Islam and Naseema Begum viz., Mrs. Fathima Bi died on 7.12.2002 and the
second respondent Mrs. Naseema Begum and Mrs,Haseena were impleaded as legal
representatives of the deceased Fathima Bi in R.C.O.P.No.501 of 2002 and on contest, the said
R.C.O.P.No.501 of 2002 was dismissed. Against the findings in R.C.O.P.No.501 of 2002, an
appeal in R.C.A.No.116 of 2004 was preferred by the landlord Mohamed Akbar Badsha and the
said R.C.A.No.116 of 2004 was also dismissed on 13.11.2007. After the dismissal of the said
R.C.A.No.116 of 2004, the landlord Mohamed Akbar Badsha had filed the present
R.C.O.P.No.298 of 2006 claiming that the first respondent let out the premises to the second
respondent without the permission of the landlord and that he is liable to be evicted under Section
10(2)(ii)(a) of the Act which cannot be sustainable.
3. Before the Rent Controller, the landlord has examined himself as P.W.1 and Exs. P1 to
P4 were marked. The second respondent Naseema Begum had examined herself as R.W.1 and Ex
R1 was marked on her side. After going through the evidence and after hearing the submissions
made by both counsels, the learned Rent Controller has allowed the R.C.O.P. giving two months
time to the tenant to vacate and hand over the vacant possession to the landlord.Aggrieved by the
said order, the second respondent/revision petitioner has preferred an appeal in RCA No.744 of
2006 before the Rent Control Appellate Authority, who had also dismissed the appeal confirming
the order passed in R.C.O.P, which necessitated the second respondent in R.C.O.P.No.298 of
2006 to prefer this revision.
4. The only point to be decided in this revision is that whether the sub-tenancy in favour of
the second respondent by the first respondent Noorul Islam has been proved beyond any doubt.
The learned Rent Controller relying on the evidence of R.W.1 as to the effect that after her
marriage, she went and lived with her husband in her father-in-law’s house and after her mother-
in-law’s death, she came to the petition schedule building, since the first respondent had left
for abroad and his wife had also left for her mother’s house for delivery. She would admit that her
ration card stands for door No.40/42 at Venkatesa Naicken First Street, Second lane, Chennai-2.
The learned Rent Control Appellate Authority relying on the evidence of R.W.1 in
R.C.O.P/revision petitioner herein as to the effect that after the marriage , the revision petitioner
had left for her mother-in-law’s house at Door No.43 and after her demise, she came to the
petition schedule building since the first respondent’s wife had left for her mother’s house for
delivery. Only on the basis of the said piece of evidence as to the fact that the second
respondent is residing in the petition schedule building, both the Courts below have come to a
conclusion that the first respondent viz., Noorul Islam had sub let the premises to the second
respondent Naseema Begum/revision petitioner herein.
5. The learned counsel appearing for the revision petitioner would contend that even in the
earlier R.C.O.P.No.501 of 2002, the second respondent has been impleaded as the legal
representative of Fathima Bi, the first respondent therein as her daughter. Along with her, the first
respondent and other two sisters of the second respondents have also been impleaded as Legal
representatives of the deceased Fathima Bi in R.C.O.P.No.501/2002. R.C.O.P.No.501 /2002 was
also filed by the same landlord Mohamed Akbar Badsha in respect of the same building on the
ground of owner’s occupation. But the said R.C.O.P. was dismissed and an appeal preferred
against the order in R.C.O.P.No.501/2002 under R.C.A.No.116 of 2004 was also dismissed. The
learned counsel has relied on the said Judgment in R.C.O.P.No.501 of 2002 to show that both the
first respondent and the second respondent are the children of the deceased Fathima Bi and
that they are brother and sister respectively.
6. The learned counsel appearing for the respondent relying on a decision reported in
M.V.Swami v. Ameer Basha, 1985 (1) M.L.J. 53, would contend that if it is proved that the person
to whom the premises was let out was not residing there and in his place if it is shown that
another person is living, then the inference will be that the tenant had sub let the premises without
the permission of the landlord and on that score the tenant is liable to be evicted under Section
10(2)(ii)(a) of the Act. The facts of the said case in brief relevant for the purpose of deciding this
revision are that the alleged sub tenant second respondent, according to the landlord therein was
conducting a type-writing institute in the premises let out to the tenant/first respondent. There
was evidence like name board of the type writing Institute coupled with the admission of the
petitioner that the licence for the institute stands in the name of the wife of the second respondent
and the attachment proceedings under Ex.P5 clearly established that the premises let out to the
petitioner was under the occupation of the second respondent herein . So in that case, there was
material to show that the second respondent was running a type writing institute in the premises
which was originally let out to the first respondent. Since the sub-letting has been established by
overwhelming evidence, the learned Judge of this Court has held that the tenant is liable to be
evicted under Section 10(2)(ii)(a) of the Act. Further it is pertinent to note that the second
respondent in that case is no way related to the first respondent/original tenant. But in the case
on hand, the first respondent and the second respondent are own brother and sister
respectively and their mother was Mrs.Fathima Bi, the first respondent in R.C.O.P.No.501 of
2002. It is in evidence that the first respondent/revision petitioner’s brother viz., Noornul Islam is
in abroad and his wife had gone to her mother’s house for delivery. It is not in evidence that the
revision petitioner/second respondent in R.C.O.P.No.298 of 2006 is residing in the petition
schedule building with her husband. Admittedly, her husband’s house is at Door No.43/3,
Venkatesa Naicken First Street, Mount Road, Chennai-2. The petition schedule building is door
No.40/42 in the same Venkatesa Naicken First Street, Mount Road, Chennai-2.
7. The other dictum in Rupalochani Saraswathi Ammal v. Sundaranarayanan, 1984 (1)
M.L.J. 366, relied on by the learned counsel appearing for the respondent is also of no use to the
respondent because there was evidence to show that the building in question was let out to the
tenant for non-residential purpose i.e., to run a x-ray clinic. But the tenant had sub-let the
premises to the third parties for residential purpose. Only on that ground, eviction was
ordered under Section 10(2)(ii)(a) of the Act. But the case on hand, the property was let out to the
first respondent for residential purpose and there was no material to show that the second
respondent, who is none other than the sister of the first respondent is a tenant under the first
respondent and who was put in occupation of the petition schedule building without the
permission of the landlord.
8. The learned counsel appearing for the revision petitioner relying on a decision
reported in V.Venkatarama Chettiar v. M.Duraiswami Mudaliar and Co., by Managing Partner
Rathnavelu Mudaliar, 1963 (1) M.L.J.125, and contended that an order of eviction under sub-
letting shall be passed only if the sub-letting is established beyond any reasonable doubt. The
exact observation in the said Judgment runs as follows:
“It will be seen from the record that on the date when the application for eviction was
filed admittedly the respondent was not the owner of any business premises in Madras
City. It is alleged that he had entered into an agreement for purchasing the building in
which he is now carrying on his business of printer and publisher at the time when he
filed the application for eviction. The date when he filed the application for eviction was
21st November 1960. The date of agreement of purchase was 11th October,1960. The
sale deed was actually obtained on 26th November 1960. The order of eviction was
passed sometime after 26th November 1960. Mr.Venkatarama Iyer’s contention is that
before the Controller could order eviction of a tenant at the instance of a landlord, who
alleged that he did not own any non-residential building of his own in the City of Madras
for carrying on his business, the Controller ought to have been satisfied on the date
when he passed the order of eviction that that condition was continued to be fulfilled
by the petitioner. The point is not covered by any specific provision in the Madras
Buildings (Lease and Rent Control) Act. The section merely speaks of a right of a
landlord to apply for eviction on this ground and in defining this right it merely reads as
though he was entitled to this right provided he did not own a building of his own on the
date when he applied to the Controller for eviction. The requirement as to bona fides,—
Mr.Venkatarama Iyer’s contention was—implied that this condition must continue to
exist right down to the date when the order of eviction was passed.”
Relying on the above said decision, the learned counsel appearing for the revision
petitioner would contend that there is no bona fide on the part of the landlord. The landlord’s
intention is to get possession in one way or other. Having failed in the previous attempt in
R.C.O.P.No.501 of 2002, the landlord has come forward with the R.C.O.P.298 of 2006 with a
frivolous motive. It is a settled law that while exercising the power of revision, this Court
normally will not interfere with concurrent findings of the Courts below. But if it is proved that
the findings of the learned Rent Control Appellate Authority is perverse in nature and not based
on any acceptable evidence then this Court has got every power to interfere with the concurrent
findings too. Since there is no material to show that the revision petitioner is in occupation of
the petition schedule building as a sub tenant, this Court has necessarily to interfere with the
findings of the learned Rent Control Appellate Authority in R.C.A.No.744 of 2006.
9. In fine, this revision petition is allowed and the judgment in R.C.A.No.744 of 2006 on
the file of VIII Judge, Court of Small Causes/Rent Control Appellate Authority, Chennai is
hereby set aside and the R.C.O.P.No.298 of 2006 on the file of XV Judge, Court of Small
Causes/Rent Controller, Chennai is hereby dismissed. The parties are directed to bear their own
costs.
Petition allowed.

[2008 (1) T.N.C.J. 765 (Mad) (MB)]


MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE:
G. RAJASURIA, J.
ORIENTAL INSURANCE CO. LTD., KARAIKKUDI ...Appellant
Versus
MINOR KARTHIK AND ANOTHER ...Respondents
[C.M.A. (MD) No. 268 of 2008 and M.P. (MD) No. 1 of 2008, decided on 22 February, 2008]
nd

Motor Vehicles Act, 1988—Section 166—Compensation—Quantum of—Boy of seven


years sustained injuries—25% of permanent disability—Compensation of Rs. 96816/-
awarded by Tribunal—Validity of—Held, boy was minor hence no question of loss of
income arises—Compensation towards loss of income reduced which shall be towards
loss of education and anxiety—Compensation towards pain and sufferings also reduced—
Thus compensation modified to Rs. 81,816/-—Appeal partly allowed.
(Paras 8 to 11)
Counsel.—Mr. P. Ramani, for the appellants; Mr. K. Kumaravel, for the respondent No.
1, No appearance for the respondent No. 2.
JUDGMENT
G. RAJASURIA, J.—This appeal is focussed as against the judgment and decree dated
01.04.2005 passed in M.C.O.P.No.36 of 2004 by the learned Motor Accidents Claims Tribunal-
cum-the Subordinate Judge, Ramanathapuram.
2. Heard the learned counsel appearing for the appellant as well as the learned counsel for
the first respondent and notice to R2 is dispensed with as she remained ex-parte before the
Tribunal.
3. The Tribunal vide judgment dated 01.04.2005 awarded compensation to a tune of
Rs.96,816/- (Rupees ninety-six thousand eight hundred and sixteen only) under the
following sub-heads:
For transportation -Rs. 2,000/-
For extra nourishment -Rs. 2,000/-
For damage to dress -Rs. 200/-
For attendant charges -Rs. 500/-
For pain and sufferings -Rs.35,000/-
For permanent disability -Rs.25,000/-
For loss of income -Rs.30,000/-
For medical expenses -Rs. 2,116/-
Total -Rs.96,816/-
4. The challenge in this appeal is relating to the quantum of compensation awarded by
the Tribunal.
5. The appellant would take exception to the awarding of compensation under the sub
heads pain and sufferings, permanent disability and loss of income in a peculiar manner without
adhering to the well settled proposition of law relating to the awarding of compensation under
those sub heads.
6. The point for consideration is as to whether the Tribunal awarded ‘just compensation’?
On point:
7. The learned counsel for the appellant/Insurance Company by reiterating the grounds of
appeal, would develop his arguments to the effect that the Tribunal awarded under the sub-heads
loss of income a sum of Rs.30,000/- (Rupees thirty thousand only) for a boy of seven years old,
who was studying second standard at the relevant time of the accident. He would also narrate
that under the sub-head pain and sufferings a sum of Rs.35,000/- (Rupees thirty-five
thousand only) was awarded and then once again for permanent disability of 25% a sum of
Rs.25,000/- (Rupees twenty-five thousand only) was awarded. In respect of other sub-heads he is
having no objection.
8. The learned counsel for the first respondent/ claimant convincingly and correctly,
appositely and appropriately would argue that a boy of seven years old, who was studying second
standard, because of the injury sustained by him, lost his education for a period of one year. I
could see considerable force in the submission made by the learned counsel for the first
respondent/claimant because though compensation could not be awarded under the sub-head loss
of income for a minor boy of seven years old, for loss of education and the resultant anxiety
involved, sum of Rs.15,000/- (Rupees fifteen thousand only) could be awarded and accordingly
the compensation under the sub-head loss of income in a sum of Rs.30,000/- (Rupees thirty
thousand only), shall stand reduced to Rs.15,000/- (Rupees fifteen thousand only) which shall be
towards loss of education and compensation for anxiety. Permanent disability to an extent of
25% was sustained by the claimant, over which there is no controversy, considering the fact that
the claimant sustained injuries during the year 2004, awarding a sum of Rs.2000/- (Rupees two
thousand only) for each percentage of permanent disability would meet the ends of justice and
accordingly if worked out, for 25% permanent disability, it comes to Rs.50,000/- (Rupees fifty
thousand only).
9. Towards pain and sufferings, an enormous sum of Rs.35,000/- (Rupees thirty five
thousand only) was awarded and it could be reduced to Rs.10,000/- (Rupees ten thousand only)
considering the nature of injuries.
10. In respect of other sub heads, appropriate amounts have been awarded, which require
no interference. Accordingly, the compensation is modified as under:
For transportation -Rs. 2,000/-
For extra nourishment -Rs. 2,000/-
For damage to dress -Rs. 200/-
For attendant charges -Rs. 500/-
For pain and sufferings -Rs.10,000/-
For permanent disability -Rs.50,000/-
For loss of education
and anxiety -Rs.15,000/-
For medical expenses -Rs. 2,116/-
Total -Rs.81,816/-
11. The Tribunal awarded 6% interest p.a.; considering the prevailing rate at that
time, the interest awarded is enhanced to 7.5% p.a.
12. In the result, this civil miscellaneous appeal is partly allowed and the award of the
Tribunal is reduced from Rs.96,816/- (Rupees ninety-six thousand eight hundred and
sixteen only) to Rs.81,816/- (Rupees eighty-one thousand eight hundred and sixteen only)
which shall carry interest at the rate of 7.5% from the date of M.C.O.P. till deposit. No costs.
Consequently, the connected M.P. is closed.
Appeal partly allowed.

[2008 (1) T.N.C.J. 768 (Mad) (MB)]


MADRAS HIGH COURT
(MADURAI-BENCH)
BEFORE:
G. RAJASURIA, J.
THE DIVISIONAL MANAGER, THE ORIENTAL
INSURANCE CO., LTD., TIRUNELVEL ...Appellant
Versus
KARUTHAPANDI AND ANOTHER ...Respondents
[C.M.A. (MD) Nos. 1071 and 1072 of 2007, decided on 21 February, 2008]
st

(A) Motor Vehicles Act, 1988—Section 166—Compensation—Liability of pay—


Driver of offending vehicle not having valid licence—Insurance Company not liable to pay
compensation—However in facts of case Insurance Company is directed to pay award at
first instance and recover it from owner of vehicle.
(Para 8)
(B) Motor Vehicles Act, 1988—Section 166—Compensation—Quantum of—Medical
expenses unsupported by medical bill reduced—Taking of nutritious food is also on
higher side which in also reduced—Thuse award reduced from Rs. 85,000/- to 75,000/-—
Appeal partly allowed. (Para 12)
Case law.—2004 (1) AJR 320 (SC); 2004 ACJ 1—relied on.
Counsel.—Mr. K. Bhaskaran, for the appellant; Mr. T. Selvakumar, for the respondent 1.
JUDGMENT
G. RAJASURIA, J.—This appeal is focussed as against the judgment and decree dated
13.03.2007, passed in M.C.O.P.No.691 and 694 of 2005, on the file of the Motor Accidents
Claims Tribunal cum Additional District Judge, (Fast Track Court No.II), Tirunelveli.
2. Heard both sides. At the time of admission, both sides agreed to argue the matter on
merits. Accordingly, the matter is taken up for disposal. The Tribunal awarded the
compensation in the aforesaid two cases as under:
M.C.O.P.No.691 of 2005 (C.M.A.No.1071 of 2007):
(i) For pain and sufferings =Rs.15,000.00
(ii) For Medical Expenses = Rs.10,000.00
(iii) For Permanent Disability = Rs.50,000.00
(iv) For Nutritious Food and
Transport charges = Rs.10,000.00
Rs. 85,000.00
M.C.O.P.No.694 of 2005 (C.M.A.No.1072 of 2007):
(i) For Permanent Disability and
Loss of Income = Rs. 80,000.00
(ii) For Medical Expenses = Rs. 10,000.00
(iii) For Pain and Sufferings = Rs. 15,000.00
(iv) For Transport Charges and
Nutritious Food = Rs. 10,000.00
Rs.1,15,000.00
3. The challenge in this civil miscellaneous appeal is against the liability fixed on the
insurance company despite the fact that the driver of auto had no proper badge to drive the auto at
the time of accident. The quantum of compensation awarded by the Tribunal is also under
challenge.
4. During trial, on the side of the claimant P.W.1 to P.W.3 were examined and Exs.P.1 to
P.10 were marked and on the side of the respondents R.W.1 was examined and Exs.R.1 and R.2
were marked.
5. The points for consideration are:
(i) Whether the insurance company can disown its liability on the ground that the driver
of the insured auto had no proper batch to drive it at the time of accident?
(ii) Whether the quantum of compensation arrived at by the Tribunal is just and proper?
Point No:(i)
6. The learned counsel for the appellant/insurance company would contend that the
Tribunal gave a clear finding to the effect that at the relevant time of accident, the driver of the
auto was not having proper badge to it, based on the evidence of the R.W.1 (the official of the
R.T.O. Office); however, it fell into error in simply assuming as though the possibility of the
driver who might have had the opportunity of obtaining a badge from some other R.T.O. It is a
far-fetched finding by the tribunal. The official of the R.T.O. concerned clearly spoke about the
driving licence given to the petitioner without badge in such a case the burden got shifted on
the owner to prove that his driver had proper badge. But the owner of the auto remained ex parte
and in such a situation the Tribunal ought not to have held as set out supra.
7. The learned counsel for the appellant insurance company placing reliance on the
decision of this Court in Oriental Insurance Co. Ltd. v. Sivammal and others in C.M.A.(MD
Nos.8 to 12 of 2007, and C.M.A.(MD) No. 1163 of 2005 would develop his argument to the
effect that once he is not having proper driving licence, then the insurance company should be
exonerated from the liability. In this connection I would like to cite the decision of the Hon’ble
Apex Court in National Insurance Co., Ltd. v. Swaran Singh and others reported in 2004 ACJ 1.
An excerpt from it would run thus:
“Where on adjudication of the claim under the Act the Tribunal arrives at a conclusion
that the insurer has satisfactorily proved its defence in accordance with the provisions of
Section 149(2) read with sub-section (7), as interpreted by this Court above, the Tribunal
can direct that the insurer is liable to be reimbursed by the insured for the compensation
and other amounts which it has been compelled to pay to the third party under the award
of the Tribunal. Such determination of the claim by the Tribunal will be enforceable and
the money found due to the insurer from the insured will be recoverable on a certificate
issued by the Tribunal to the Collector in the same manner under Section 174 of the Act
as arrears of land revenue. The certificate will be issued for the recovery as arrears of
land revenue only if, as required by sub-section (3) of Section 168 of the Act the
insured fails to deposit the amount awarded in favour of the insurer within thirty days
from the date of announcement of the award by the Tribunal”.
8. The perusal of the aforesaid decision would highlight the fact that if the driver of the
offending vehicle had no proper driving licence, the insurer of the offending vehicle could disown
his liability. However, in the aforesaid case the Honourable Apex Court taking into consideration
the pathetic conditions of the claimants carved out an exception and made the insurance company
to pay at the first instance the award amount and recover the same from the owner of the vehicle.
Here, the claimant sustained injury and it is obvious that he happens to be a poor ‘Thalayari’ and
he may should be driven from pillar to post to obtain the award amount from the owner. In such
a case the insurance company should pay the compensation to the claimants at the first instances
and get it reimbursed from the owner of the offending vehicle for which no separate proceedings
need be taken but the insurance company is at liberty to initiate E.P. proceedings in the Court
and get the amount reimbursed.
9. The learned counsel for the appellant insurance company also cited the decision of the
Honourable Apex Court in Oriental Insurance Co. Ltd. v. Shri. Nanjappan and others reported in
2004(1) AJR 320 (SC). No doubt the last para of the said decision could be adhered to while
incorporating the pay and recovery theory. An excerpt from it, would run thus:
“Therefore, while setting aside the judgment of the High Court we direct in terms of what
has been stated in Baljit Kaur’s case (supra) that the insurer shall pay the quantum of
compensation fixed by the Tribunal, about which there was no dispute raised, to the
respondent-claimants within three months from today. For the purpose of recovering the
same from the insured, the insurer shall not be required to file a suit. It may initiate a
proceeding before the concerned Executing Court as if the dispute between the insurer
and the owner was the subject-matter of determination before the Tribunal and the issue
is decided against the owner and in favour of the insurer. Before release of the amount to
the insured, owner of the vehicle shall be issued a notice and he shall be required to
furnish security for the entire amount which the insurer will pay to the claimants. The
offending vehicle shall be attached, as a part of the security. If necessary arises the
Executing Court shall take assistance of the concerned Regional Transport authority. The
Executing Court shall pass appropriate orders in accordance with law as to the manner in
which the insured, owner of the vehicle shall make payment to the insurer. In case
there is any default it shall be open to the Executing Court to direct realization by
disposal of the securities to be furnished or from any other property or properties of the
owner of the vehicle, the insured. The appeal is disposed of in the aforesaid terms, with
no order as to costs.”
10. Accordingly, this point is decided that the Insurance Company shall pay the award
amount subject to the terms and conditions as envisaged in Nanjappan’s case and get it
reimbursed from the owner of the vehicle.
Point No:(ii)
11. C.M.A.No.1071 of 2007: The learned counsel for the appellant would submit that the
Tribunal assessed the permanent disability at 25%, for which a sum of Rs.50,000/- was awarded,
which in my opinion could be confirmed as for each percentage of permanent disability a sum of
Rs.2,000/- was awarded taking into consideration the nature of the injuries as under:
“1. Alacerateen 12 x 0.5 cm over R1 shoulder.
2. Contusion 5 x 6 cm over R1 shoulder.
3. Crush injury invoking middle finger (R) hand.
4. Abrasion 5 x 7 cm over (L) elbow.
L/E of (R) Hand Swelling + Tenderness of 4th, 5th MC lacuald wound (R)
middle finger.
Fracture 4th, 5th Meta carpal bone Rt. Injury No.1,2 and 4 are simple, injury
No.3 is grievous.”
12. There is nothing to find fault with the assessment of permanent disability at 25%. The
Tribunal also awarded a sum of Rs.15,000/- towards pain and sufferings, which also appears to be
proper, taking into consideration of the seriousness of the injury. However, the Tribunal awarded
a sum of Rs.10,000/- towards medical expenses, unsupported by medical bills and hence it could
be reduced to Rs.5,000/- (Rupees Five Thousand only) as it is common knowledge that he might
have incurred expenses for taking treatment, despite the fact that he might have taken treatment in
the Government Hospital. The Tribunal also awarded a sum of Rs.10,000/- towards transport
expenses and for taking nutritious food, which appears to be on the higher side, which could be
reduced to Rs.5,000/- (Rupees Five Thousands only). Accordingly, the compensation awarded
shall stand modified thus:
(i) For Permanent Disability - Rs. 50,000.00
(ii) For Pain and Sufferings - Rs. 15,000.00
(iii) For Transport expenses and
for taking nutritious food - Rs. 5,000.00
(iv) For Medical Expenses - Rs. 5,000.00
Total - Rs. 75,000.00
13. In C.M.A.No.1022 of 2007, the Tribunal assessed 40% permanent disability, for
which a sum of Rs.80,000/- was awarded, which in my opinion requires no interference.
14. In the result, C.M.A.(MD) No.1071 of 2007 is partly allowed and the compensation
awarded by the Tribunal is reduced from Rs.85,000/-(Rupees Eighty-Five Thousand only) to
Rs.75,000/- (Rupees Seventy-Five Thousand only) and the award is modified to the effect that the
insurance company shall pay the compensation to the claimants at the first instance subject to
adhering to Nanjappan’s case as decided by the Honourable Apex Court and get it reimbursed
from the owner of the offending vehicle for which no separate proceedings need be taken but the
insurance company is at liberty to initiate E.P. proceedings in the Court concerned and get the
amount recovered. In other aspects the award shall hold good. No costs.
15. Accordingly, C.M.A.(MD) No.1072 of 2007 is partly allowed and the award is
modified to the effect that the insurance company shall pay the compensation to the claimants at
the first instance subject to Nanjappan’s case as decided by the Honourable Apex Court and get it
reimbursed from the owner of the offending vehicle for which no separate proceedings need be
taken but the insurance company is at liberty to initiate E.P. proceedings in the Court concerned
and get the amount recovered. In other aspects the award shall hold good. No costs.
Appeals partly allowed.

[2008 (1) T.N.C.J. 773 (Mad)]


MADRAS HIGH COURT
BEFORE:
A.C. ARUMUGAPERUMAL ADITYAN, J.
K. SELVARAJ ...Petitioner
Versus
J. NARAYANAN AND ANOTHER ...Respondents
[C.R.P. (NPD) Nos. 787 and 788 of 2006 and CMP No. 6583 and V.C.M.P. No. 380 of 2006,
decided on 28th January, 2008]
Tamil Nadu Buildings (Lease and Rent Control) Act, 1960—Section 10 (2)(i)—
Eviction—Default in payment of rent—Concurrent finding recorded against tenant and
eviction ordered—Hence, this petition by tenant—Tenant asserting that he deposited
advances Rs. 20,000/- and in case of default that amount was to be adjusted—Held, no
evidence or material placed on side of tenant to show that he had already paid rent for 19
months—Further after admitting rent it is not open to tenant to ask landlord to adjust with
advance amount—Hence order call for no interference—Petition dismissed.
(Paras 8, 10, 11, 14 and 15)
Case law.—2003 (3) CTC 348; 1969 MLJ Reports 137; 1998 (3) LW 159—referred.
Counsel.—Mr. S. Parthasarathy, Senior Advocate, for the petitioner; Mr. Chandra Bose,
Advocate, for the respondent.
JUDGMENT
A.C. ARUMUGAPERUMAL ADITYAN, J.—These two C.R.P.NPDs. had arisen against the
common Judgment of the learned Rent Control Appellate Authority (VIII Judge), Court of Small
Causes, Chennai in R.C.A.No.994 of 2003 and 1496 of 2003. R.C.A.No.994 of 2003 had arisen
against the fair and decretal order in R.C.O.P.No.2227 of 2002 on the file of the XIV Judge,
Court of Small Causes, Chennai and R.C.A.No.1496 of 2003 had arisen against the fair and
decretal order in R.C.O.P.No.871 of 2003 on the file of the learned XII Judge, Court of Small
Causes, Chennai.
2. R.C.O.P.No.2227 of 2002 was filed by the landlord under Section 10(2)(i) of the
Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (hereinafter referred to as ‘the Act’)
for eviction on the ground that 19 months’ rent for the petition scheduled building is in arrears
and that the tenant had committed wilful default in payment of rent. Learned Rent Controller after
hearing the submissions made by the learned counsel for the petitioners as well as the
respondent and also after taking into consideration Ex.R.1 the sole document filed in the Rent
Control Proceedings on behalf of the respondent therein, had come to a conclusion that the
tenant/revision petitioner had committed wilful default in payment of rent for 19 months and
accordingly allowed the petition, ordering eviction of the tenant/revision petitioner from the
petition schedule building, giving two months’ time to vacate and hand over vacant
possession of the petition schedule property. Aggrieved by the findings of the learned Rent
Controller (XII Judge, Court of Small Causes), Chennai, the tenant had preferred an appeal before
the Rent Control Appellate Authority (VIII Judge, Court of Small Causes), Chennai in
R.C.A.No.994 of 2003 who, after finding no merits for interference in the findings of the learned
Rent Controller, had dismissed the R.C.A.No.994 of 2003 thereby confirming the order of the
learned Rent Controller in R.C.O.P.No.2227 of 2002. The Rent Control Appellate Authority had
given a month’s time for the tenant to vacate and hand over vacant possession to the landlord.
Aggrieved by the findings of the learned Rent Control Appellate Authority, C.R.P.No.787 of
2006 has been preferred by the revision petitioner/tenant.
3. R.C.O.P.No.871 of 2003 was filed by the tenant under Section 8(5) of the Act for
permitting him to deposit the arrears of rent from January, 2003. The learned Rent Controller,
after giving a definite finding to the effect that the arrears of rent is from May, 2001, has
come to the conclusion that there is no ground for permitting the tenant to deposit rent from
January, 2003 and accordingly dismissed the petition filed by the tenant in R.C.O.P.No.871 of
2003. Aggrieved by the findings of the learned Rent Controller, the tenant had preferred
R.C.A.No.1496 of 2003 on the file of the VIII Judge, Court of Small Causes, Chennai who after
hearing both the R.C.A.Nos.994 of 2003 and 1496 of 2003 jointly, in his common judgment, had
dismissed both the appeals. Against the findings of the learned Rent Control Appellate
Authority in R.C.A.No.1496 of 2003 the tenant had preferred C.R.P.No.788 of 2006.
4. The findings of the Courts below in both the R.C. As. are concurrent in nature. Unless it
is shown before this Court that the findings of the Rent Control Appellate Authority is perverse
and the findings have been given against evidence, this Court, sitting in exercising the powers of
revision, cannot interfere with the findings of the Courts below, which is concurrent in nature.
5. Learned counsel for the revision petitioner relying on the decision reported in 2003
(3) CTC 348 (P.M.Punnose v. K.M.Munneruddin and others) would contend that in the absence
of any demand by way of legal notice as contemplated under the proviso to Section 10(2) (i) of
the Act, both the Courts below have erroneously come to the conclusion that the default
committed by the tenant as wilful default, which is not permissible under law.
6. The facts of the case in 2003 (3)CTC 348 decided by the Hon’ble Supreme Court are as
follows:
The petition was filed under Section 10(2)(i) of the Tamil Nadu Buildings (Lease and Rent
Control) Act, 1960 for eviction. The learned Rent Controller had allowed the petition evicting the
tenant on the ground that he had committed wilful default in payment of rent. The tenant
preferred an appeal which was allowed by the Rent Control Appellate Authority. The landlord
preferred a revision under Section 25 of the Act which has been allowed, setting aside the
judgment of the learned Rent Control Appellate Authority, restoring the orders of the learned
Rent Controller. Against which, Civil Appeal No.3121 of 2000 was preferred before the Apex
Court.
7. The landlord in that case had purchased the suit property from the predecessor-in-title
under a sale deed dated 09.01.1987. The appellant/tenant was residing in the building as a tenant
from the date of purchase of the building by the landlord on 09.01.1987 for a monthly rent of
Rs.400/-. After the purchase of the property by the respondents/landlords, the appellant/tenant
was paying rent to the respondents/landlords. The rent for the month January, 1987 was remitted
by the appellant/tenant to the landlords who are five in numbers under five money orders at
Rs.80/- each. Thereafter, the appellant/tenant was paying the rent to the respondents/landlords
through money order at the rate of Rs.400/- to the first respondent. There was some controversy
in respect of the exact rent. Even after January, 1987 that is, the purchase of the petition
schedule property therein, the tenant was regularly paying the rent to the landlords/respondents
through money orders for 17 months. The rent due for September, 1988 was also paid by the
appellant/tenant and received by the respondents/landlords. Thereafter, the dispute arose
between the parties regarding fixation of rent. Before the appellate authority, it was contended
on behalf of the tenant that the landlords in that case had not demanded the rent by way of notice
and hence the default made by the appellant/tenant in payment of rent cannot be construed as
wilful default, since the tenant has all along been paying the admitted rent to the landlords even
after their purchase in January, 1987. Only under such context it has been held by the Hon’ble
Apex Court as follows:
“14. The explanation appended to sub-section (2) of Section 10 of the Act enacts a
rule of evidence. After the issuance of two months’ notice claiming the rent, the
default by tenant shall be construed as wilful raising a presumption in that
regard and it will be for the tenant to show availability of sufficient cause or
circumstances beyond his control to escape from the consequence of default. The
landlord is not prevented from initiating proceedings for eviction on the ground
of default under Section 10(2)(i) of the Act, without serving a notice under the
explanation but in that case it will be for the landlord to make out a case of wilful
default by tenant failing which the controller may exercise his discretion under
the proviso giving the tenant a reasonable time, not exceeding fifteen days for
payment or tender.”
8. But in the case on hand, it is the definite case of the landlord/respondent herein that
appellant/tenant is in default of payment of rent from May, 2001 to November, 2002 that is for 19
months. It was contended on behalf of the revision petitioner/tenant herein, before the
Court below on the basis of Ex.R.1 notice dated 22.02.2003 that the tenant was in arrears only
from December, 2002. But a reading of Ex.R.1 notice would go to show that the tenant had
demanded that the arrears of rent is to be adjusted towards the advance amount of Rs.20,000/-
already paid by the tenant to the landlord at the time of entering into the agreement of
tenancy. Only after adjusting the arrears of rent towards the advance amount of Rs.20,000/-,
according to the tenant, the arrears of rent will commence from December, 2002. So, inference
which can be drawn from Ex.R1 is that there was arrears of rent for a period of 19 months to the
tune of Rs.19,000/- and according to the tenant it is to be adjusted towards advance amount of
Rs.20,000/- paid by the tenant to the landlord. As correctly observed by the Court below that
there is absolutely no evidence or material placed on the side of the tenant to show that he
had already paid rent for 19 months i.e., from May, 2001 to November, 2002.
9. The other judgment relied upon by the revision petitioner in 1969 M.L.J. Reports 137
[S.Venkataramanaswami Ayyar v. S.Abdul Wahab (No.2)] will not be applicable to the present
facts of the case.
10. After admitting the arrears of rent for 19 months, it is not open to the tenant to ask the
landlord to adjust the same with the advance amount he had paid, until he vacates and hand over
vacant possession of the building to the landlord. Even in Ex.R.1 notice, the stand taken by the
tenant is that he is willing to vacate and hand over vacant possession to the landlord.
11. Learned counsel for the respondent/landlord in both the revisions would state that
even during the pendency of the appeal, the tenant had paid Rs.8000/- towards eight months
arrears of rent upto 22.09.2003, on 22.10.2005. For the subsequent period, that is from
November, 2003 to September, 2005 for 23 months, the tenant had paid Rs.23,000/-. But the
tenant had not paid the arrears of rent for 19 months from May, 2001 to November, 2002.
12. It is brought to the notice of this Court that as per the order passed by this Court in
C.M.P.No.6583 of 2006 in C.R.P. NPD No.787 of 2006 dated 09.01.2008, the tenant had not
chosen to deposit the arrears of rent of Rs.19,000/- before the learned Rent Controller to the
credit of R.C.O.P.No.2227 of 2002.
13. Learned counsel for the respondent/landlord relying upon the decision reported in 1998
(3) LW, 159 (B.Anraj Pipada v. V.Umayal) would submit that if the tenant fails to pay rent
regularly even during the pendency of the eviction proceedings, then the default is to be
considered as wilful default. The exact observation of the learned Judge of this Court in the
above said dictum relevant for the purpose of deciding this case runs as follows:
“When the eviction proceedings have been initiated on the ground of wilful default, one
would expect the tenant to pay the rent regularly every month at least after the
initiation of the proceedings. When the tenant has failed to pay the rent regularly even
during the pendency of the proceedings, then there is no doubt that his conduct in paying
the rent as he likes, will amount to wilful default”. [1997 2 LW 501 (Sundaram Steel Co.
etc. v. S.Lakshmi) and 1997 II MLJ, 467 (Poorman’s Depot Registered Firm v. Krishnan)
have been referred to].
14. After the Courts below have come to a definite conclusion under Section 10(2)(i) of
the Act in R.C.O.P.No.2227 of 2002 that there is wilful default in payment of rent for 19 months,
they have rightly dismissed the application filed by the tenant in R.C.O.P.No.871 of 2003
under Section 8(5) of the Act.
15. I do not find any perverseness, or irregularity or illegality in the findings of the Courts
below, warranting any interference in these revision petitions by this Court.
16. In fine, C.R.P.NPD Nos.787 and 788 of 2006 are dismissed confirming the Judgment
in R.C.A.Nos.994 of 2003 and 1496 of 2003, respectively on the file of the VIII Judge, Court of
Small Causes, Chennai. No costs.
Learned counsel for the revision petitioner/tenant submits that the tenant may be given
three months’ time to vacate and hand over vacant possession. Learned counsel for the
respondent/landlord has no objection for granting one month’s time for the tenant to vacate and
hand over possession of the petition schedule building. Accordingly, the revision
petitioner/tenant is given a month’s time from today to vacate and hand over vacant possession of
the petition schedule building, along with arrears of rent, to the respondent/landlord.
Revisions dismissed.

[2008 (1) T.N.C.J. 778 (Mad)]


MADRAS HIGH COURT
BEFORE:
A.C. ARUMUGAPERUMAL ADITYAN, J.
A. THIRUNAVUKKARSU ...Petitioner
Versus
T. SREEDEVI ...Respondent
[C.R.P. (NPD) No. 86 of 2008, decided on 22 January, 2008]
nd

Tamil Nadu Court-fees and Suits Valuation Act—Section 25(a), 25(d)—Court-fee—


Payment—Suit for declaration—Though there is no specific relief for recovery of
possession, plaintiff under suit has sought for relief of declaration that suit property
belong to him under three sale deeds which stood in name of his daughter (defendant)—In
such circumstances court-fee is to be paid under Section 25 (a) and not under Section 25 (d)
—Hence, order of Court below not call for interference. (Paras 2 to 4)
Case law.—2006 (4) MLJ 924.
Counsel.—Mr. K. Balakrishnan, Advocate, for the petitioner.
JUDGMENT
A.C. ARUMUGAPERUMAL ADITYAN, J.—Heard the learned counsel for the revision
petitioner. The revision emanates from the order passed by the learned District Munsif,
Tambaram, in an unnumbered suit in O.S.SR.No.3833 of 2007 dated 08.10.2007. The suit was
filed by the plaintiff/revision petitioner for declaration of his title. The plaintiff has valued
the suit under Section 25(d) of the Tamil Nadu Court-fees and Suits Valuation Act, which was
questioned by the office returning the plaint stating that the plaintiff is liable to pay the court-fees
under Section 25(a) or under Section 25(b) of the Tamil Nadu Court-fees and Suits Valuation
Act (herein after referred to as ‘the Act’). The learned District Munsif had taken up the issue on
the representation made by the learned counsel appearing for the plaintiff in the Court and had
passed the impugned order that there is no reason to exclude the relief sought for by the plaintiff
under Section 25(a) or 25(b) of the Act and accordingly returned the plaint for representing the
same after paying the necessary court-fees under Section 25(a) of the Act. Aggrieved by the
order of the learned District Munsif, the present revision has been preferred by the revision
petitioner.
2. The learned counsel for the revision petitioner relying on 2006(4) MLJ 924 ( Siddha
Construction (P) Ltd., rep. by its Power Agent Anjay Sharma, Chennai v. M.Shanmugam and
others), would contend that in a suit for declaration the court-fee is to be paid under Section 25(d)
of the Act. The fact of the said case is that:—
“The plaintiff had filed the suit for declaration that the sale-deed executed by the first
defendant in favour of the third defendant is null and void and not binding on him.
The learned Judge of this Court who had disposed of the said revision petition had
observed that the plaintiff in O.S.No.13 of 2002/revision petitioner therein is not a
signatory to the impugned sale-deed and he has not asked for any cancellation of the
same and the relief sought for under the plaint is a declaration that the sale-deed dated
31.10.2001 executed by the first defendant in favour of the third defendant is null and
void.
It is pertinent to note that the plaintiff/revision petitioner therein has not asked for a
declaration of title in respect of the property in dispute, but he sought for a declaration
that the sale-deed executed by the first defendant in favour of the third defendant is
null and void.
Only under such circumstances, it has been held by the learned Judge of this Court in the
above said ratio that the court-fee paid by the plaintiff under Section 25(d) of the Act is
correct.”
But that is not the case on hand. The plaintiff/revision petitioner herein has filed the suit
for declaration that the suit property belongs to him and that the plaintiff had purchased the suit
property in the name of the defendant and the sale consideration was paid by him for the
impugned three sale-deeds of the year 2002, which are standing in the name of the defendant.
Under Section 25 of the Act if a suit for declaratory decree or order is filed and the prayer is for
declaration and for possession of the property the court-fee is to be paid under Section 25(a), and
if the suit is for a declaration and for consequential injunction the court-fee is to be paid under
Section 20(b), and if the suit is for plaintiff’s exclusive right to use, sell, print or exhibit any
mark, name, book, picture, design or other thing the court-fee is to be paid under Section
25(c), and in other cases the court-fee is to be paid under Section 25(d) of the Act.
3. The learned counsel for the revision petitioner would contend that since the plaintiff had
filed the suit only for declaration it will come only under the category of Section 25(d) of the Act
and the plaintiff need not pay court-fee under Section 25(a) or 25(b) of the Act as directed by the
Court below. But I am of the view that even though there is no specific relief for recovery of
possession, the plaintiff under the suit has sought for the relief of declaration that the suit property
belongs to him under the impugned three sale-deeds of the year, 2002 which stood in the name of
his daughter, the defendant in the suit. Under such circumstances, as rightly held by the learned
District Munsif, the court-fee is to be paid only under Section 25(a) of the Act and not under
Section 25(d) of the Act.
4. In fine, the civil revision petition is dismissed confirming the order passed in
unnumbered suit in O.S.SR.No.3833 of 2007 on the file of the Court of District Munsif,
Tambaram. For representation of the plaint after paying the necessary court-fee under Section
25(a) of the Tamil Nadu Court-fees and Suits Valuation Act one month time from this date is
granted to the revision petitioner. No costs.
Revision dismissed.

[2008 (1) T.N.C.J. 781 (SC)]


SUPREME COURT
BEFORE:
S.B. SINHA AND V.S. SIRPURKAR, JJ.
COMMISSIONER OF CENTRAL EXCISE, T.N. ...Appellant
Versus
M/S. VINAYAGA BODY BUILDING INDUSTRIES LTD. ...Respondent
[Civil Appeal No. 2833 of 2006, decided on 4 March, 2008]
th

Central Excise Act, 1944—Section 11-A—Central Excise Rules, Rule 4 (1)—Maxi


cabs—Classification of—Investigation—Manufacturer had built maxi cabs with seating
capacity of 12 Plus 1—Applicability of sub-heading—Tribunal classified under SH 8702.90
—Chassis used was classified by its manufacturer under SH 8706.29 vide invoice of M/s.
Tata Motors Ltd.—Tariff entry clearly indicates that chassis falling thereunder is meant
for motor vehicles of SH 8702.90—No question of product being classified under SH
8702.10—Demand of NCCD set aside— Legality of—Body building of chassis amounts
to manufacturing—Falls under Heading 87.06—Question as to whether a maxi cab should
be classified under the respective tariff heads i.e., 87.02 to 87.05 of Central Excise Tariff
Act, 1985 or under the Chapter Heading 87.07—NCCD imposed at the rate of 1% ad
valorem on the goods falling under sub-heading 8702.10, 8703.90 and 8704.90—Seating
capacity of maxi cabs manufactured is 12 Plus 1 only—Sub- heading 8702.10 would be
applicable—Only because the manufacturers of chassis had classified them under sub-
heading 8702.90, the same having regard to the independent manufacturing activities
carried on by the respondent was not decisive— Payability of duty would depend upon
the registration certificate in respect vehicle in question—On a chassis classifiable under
sub-heading 8706.29 the manufacturer can make a body thereupon having regard to the
nature of orders placed by their customers—Seating capacity for which the registration
certificate had been granted is relevant—Not the opinion of the manufacturer of the chassis
—Judgment and order passed by Tribunal set aside.
(Paras 14 to 20)
Counsel.—Mr. Mohan Parasaran, Addl. Solicitor General, for the appellant; Mr. S.
Nanda Kumar, for the respondent.
JUDGMENT
S.B. SINHA, J.—Classification of the motor cabs manufactured by the respondent is the
question involved in this appeal, which arises out of a judgment and order dated 22.09.2005
passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai
in Appeal No. E/616 of 2005.
2. Respondent is engaged in body building on duty paid chassis. Indisputably, it amounts
to manufacture within the meaning of Note 3 of Chapter 87 of Central Excise Act, 1944 (for
short “the Act”), which is in the following terms:
“3. For the purposes of this chapter, building a body or fabrication or mounting or
fitting of structures or equipment on the chassis falling under heading No. 87.06
shall amount to ‘manufacturer’ of a motor vehicle.”
3. For carrying out its manufacturing activities, the respondent purchased duty paid chassis
from Tata Motors Ltd. The seating capacity of the cabs for which the body building activity was
being carried out by the respondent is 12 Plus 1 (i.e. 12 passengers and one driver).
4. Indisputably, National Calamity Contingency Fund was created by Finance Act, 2003
wherefor inter alia it was proposed to impose one per cent duty on motor cars and multi-utility
vehicles.
5. The manufacturers of chassis in their invoices placed the said goods under sub-heading
8706.29.
Appellant, however, classified the said motor cabs under Sub- Heading 8702.90 which
has been specified for payment of National Calamity Contingency Duty (NCCD) at one per
cent for the period 1.03.2003 to 30.09.2003. Admittedly the said duty was not paid.
6. A show-cause notice was issued calling upon the respondent to show cause as to why an
amount of Rs. 4,42,823/- should not be recovered from them in terms of Section 11-A of the
Central Excise Act read with Rule 4(1) of the Central Excise Rules towards NCCD at one per
cent on the motor vehicles with seating capacity of more than 6 but less than 12, excluding
driver’s seat as also a penalty and interest thereupon. Cause was shown to the said notice by the
respondent.
7. By an order dated 29.11.2004, the assessing authority confirmed the demand of Rs.
4,42,823/-. A penalty for an amount of Rs. 5000/- was also imposed at the prescribed rate. It was
furthermore directed that on the said amount of duty interest shall be payable.
8. An appeal was preferred thereagainst by the respondent contending that the job
cards issued by them indicate that the orders were for fabrication of more than 16 seats in the cab
and as such thereby the ‘goods’ manufactured by them should be classified under sub-heading
8702.90 wherefor no NCCD was payable.
The said contention was rejected by the appellate authority in terms of its judgment dated
18.04.2005 holding:
“The evidences of job cards produced at the time of personal hearing cannot be
relied upon by them as the same are new evidences in the form of new plea which
were not produced before the Lower Authority that cannot be entertained at this stage as
held by the Hon’ble Supreme Court in the case of Naharwar Engg. Works v. UOI
reported in 2002 (143) ELT 34(SC). Further the Hon’ble Apex Court in the case of
Krishna Steel Industries v. CCE Patna reported in 2004 (172) ELT 305 Authority or
Tribunal, the same cannot be allowed to be relied upon”. Applying the ratio of the above
decision, I, therefore, reject this fresh plea/ evidences put forth for the first time by the
appellants.
10.3 Even presuming without admitting that these job cards are fresh evidences, these
cannot be relied upon in the matter of classification of said vehicles in the CETA 1985
inasmuch as the heading No. 87.02 and 87.03 have been aligned on the basis of Motor
Vehicles Act, 1988 based on passenger carrying designed for the transport of 12 Plus 1
persons” by the State Transport Authorities as discussed in para 8 supra.”
9. As noticed hereinbefore, an appeal preferred thereagainst by the respondent before the
Tribunal has been allowed stating:
“3. It is not disputed that the seating capacity of the vehicles manufactured by the
appellants was more than 12, excluding the driver. Hence the vehicles were
classifiable under SH 8702.90 only. The chassis (from M/s Tata Motors
Limited) used by the appellants was classified by its manufacturer under SH
8706.29 vide invoices of M/s. Tata Motors Limited. The Tariff entry (8706.29)
also clearly indicates that chassis falling thereunder is meant for motor
vehicles of SH 8702.90. Hence there is no question of the appellants’ product
being classified under SH 8702.10 and demanded NCCD is set aside. The appeal
is allowed.”
10. Mr. Mohan Parasaran, learned Additional Solicitor General appearing on behalf of the
appellant, would submit that the Tribunal committed a serious error in passing the impugned
judgment insofar as it proceeded to determine the issue relying only on or on the basis of the
invoice issued by the manufacturer of chassis, which is impermissible in law.
11. Mr. S. Nanda Kumar, learned counsel appearing on behalf of the respondent, on
the other hand, submitted that not only the manufacturer of chassis; even the job cards
produced by the respondent would clearly show that NCCD was not payable.
12. Chapter 87 of the Act as applicable in the year 2003 contains the heading “Vehicles
other than Railway or Tramway Rolling Stock and Parts and Accessories thereof”. Sub-headings
8702.10, 8702.90 and 8706.29 thereof read as under:
“Heading No. Sub-heading No. Description of goods Rate of duty
87.02 8702.10 Motor vehicles principally 16%
esigned for the transport
of more than six persons,
excluding the driver,
including station wagons.
8702.90 Motor vehicles principally 16%
designed for the transport
of more than six persons,
but not more than twelve
persons, excluding the
driver, including station
wagons
Other
87.06 8706.29 Chassis fitted with engines, 16%
for the motor vehicles of Rs. 10,000/-
heading Nos. 87.01 to 87.05 per chassis”
For the vehicles of sub
heading 8702.90
13. A “maxi cab” has been defined in Section 2(22) of the Motor Vehicles Act, 1988 to
mean:
“(22) “maxi cab” means any motor vehicle constructed or adapted to carry more than six
passengers, but not more than twelve passengers, excluding the driver, for hire or
reward;”
14. Indisputably, body building of chassis amounts to manufacturing. It falls under
Heading 87.06. The question, therefore, which arises for consideration is as to whether a maxi
cab should be classified under the respective tariff heads, i.e., 87.02 to 87.05 of Central Excise
Tariff Act, 1985 or under the Chapter Heading 87.07?
15. Indisputably, again NCCD was imposed at the rate of one per cent advalorem on the
goods falling under Sub-Headings 8702.10, 8703.90 and 8704.90. Respondent during the period
in question allegedly manufactured 87 numbers of maxi cabs. An investigation in regard to
the number of seats of the said vehicle was carried out. Statements of two of the officers of the
respondent, viz., S. Balamurugan and P.V. Subbaraj were recorded wherefrom it appeared that the
respondent had built maxi cabs with seating capacity of 12 Plus 1 and not 16 Plus 1.
Documentary evidences were also collected by the revenue from various customers.
16. Respondent inter alia contended that NCCD is paid on the chassis supplied by the
owners of the motor vehicles and the intention of the Revenue was to collect the same from the
manufacturers of the chassis and not independent body builders.
17. The said contention of the respondent was rejected inter alia on the premise that the
seating capacity of maxi cabs manufactured by the respondent is 12 Plus 1 only.
18. Sub-heading 8702.10 would, therefore, be applicable.
19. Sub-heading 8702.90 no doubt provides for the residuary whereas sub-heading
8706.29 refers to the vehicles falling under sub-heading 8702.90. Sub-heading 8702.10
specifies for a vehicle designed for the transport of more than six persons but not more than
twelve persons excluding the driver. It is also a ‘cab’ within the meaning of the provisions of the
Motor Vehicles Act.
For good and sufficient reasons, in our opinion, the contention raised on behalf of the
respondent with reference to the job-work prepared by them had been rejected.
The finding that they manufacture bodies for user thereof for maxi cabs with seating
capacity of 12 persons excluding the driver is a finding of fact. Only because the manufacturers
of chassis had classified them under sub-heading 8702.90, the same having regard to the
independent manufacturing activities carried on by the respondent, was not decisive.
The question in regard to the payability of duty would furthermore depend upon the
registration certificates in respect of the vehicle in question. It is a statutory document granted
under the provisions of the Motor Vehicles Act, 1988. Such a certificate is issued upon an
inspection of the vehicle by the authorities of the transport department. What is relevant was the
terms of the contract entered into by and between the respondent and their customers. On a
chassis classifiable under sub-heading 8706.29, the manufacturer can make a body
thereupon having regard to the nature of orders placed by their customers. In a given case, it
may be of sixteen seating capacity but it may be more or less than the same in some other cases.
What is, therefore, relevant is the seating capacity for which the registration certificates had been
granted and not the opinion of the manufacturer of the chassis.
20. For the reasons aforementioned, the impugned judgment cannot be upheld, which is
set aside accordingly.
21. The appeal is allowed. However, in the facts and circumstances of this case, there shall
be no order as to costs.
Appeal allowed.

[2008 (1) T.N.C.J. 786 (SC)]


SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.
NATIONAL INSURANCE CO. LTD. ...Petitioner
Versus
PREMA DEVI AND OTHERS ...Respondents
[Civil Appeal No. 1667 of 2008 (Arising out of SLP (C) No. 7058 of 2004), decided on 29 th
February, 2008]
Motor Vehicles Act, 1988—Sections 2 (14), 2 (35), 2 (40), 2(47) and 147—
Compensation—Liability to pay—Accident occurred on 1-6-1996—Claimant was travelling
in a goods carriage as a gratuitous passenger—She was not travelling in goods
carriage in the capacity of owner of goods or representative of owner of goods being
transported in the goods carriage—Owner of the goods carriage had not taken any policy
for such passenger—No requirement under law for obtaining a policy for passenger—
Insurer not duty bound to indemnify the claimant and the owner of the of offending vehicles
—Tribunal and High Court were not justified in holding that the insurer had the liability to
satisfy the award—Order impugned unsustainable—Set aside—Claimant given liberty
to recover the amount awarded from the owner of the offending vehicles.
(Paras 3, 4, 8 and 9)
Case law.—2007 (3) Scale 397.
Important Point
Provisions of Motor Vehicles Act, 1988 do not enjoin any statutory liability on the owner
of vehicle to get his vehicle insured for any passenger travelling in a goods carriage and the
insurer would have no liability.
JUDGMENT
DR. ARIJIT PASAYAT, J.—Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single Judge of the
Allahabad High Court, Lucknow Bench dismissing the appeal filed by the appellant.
3. Background facts in a nutshell are as follows:
The accident in the instant case took place on 1.6.1996. The claimant was travelling
in a goods carriage, as a gratuitous passenger. Undisputedly she was not travelling in the goods
carriage in the capacity of owner of goods or representative of owner of goods being transported
in the goods carriage. This aspect was also accepted by the claimant in the claim petition.
4. Stand of the appellant was that the owner of the goods carriage had not taken any policy
for such passenger and there was no requirement under law for obtaining a policy for passenger.
5. Learned counsel for the appellant submitted that the claimant could not claim
indemnification by the appellant and the owners of the offending vehicles were to indemnify the
award.
6. Learned counsel for the claimant and the owners of the offending vehicles
supported the order of the High Court.
7. In New India Assurance Co. Ltd. v. Vedwati and Ors., 2007 (3) Scale 397, it was held as
under:
“6. This Court had occasion to deal with cases of passengers travelling in goods
vehicles which met accident resulting in death of such person or bodily injury.
Such cases belong to three categories i.e. (1) those covered by the old Act, (2)
those covered by the Act; and (3) those covered by amendment of the Act
in 1994 by the Motor Vehicles (Amendment) Act. 1994 (hereinafter referred to
as the ‘Amendment Act’).
7. The present appeals belong to the second category.
8. In Satpal Singh’s case (supra) this Court proceeded on the footing that provisions
of Section 95(1) of the old Act are in pari materia with Section 147(1) of the Act
as it stood prior to the amendment in 1994.
9. On a closer reading of the expressions “goods vehicle”. “public service
vehicle”, “stage carriage” and “transport vehicle” occurring in Sections 2(8),
2(25), 2(29) and 2(33) of the old Act with the corresponding provisions i.e.
Section 2(14), 2(35) 2(40) and 2(47) of the Act, it is clear that there are
conceptual differences. The provisions read as follows:
Old Act:
“2 (8) “goods vehicle” means any motor vehicle constructed or adapted for use for the
carriage of goods, or any motor vehicle not so constructed or adapted when used for the
carriage of goods solely or in addition to passengers”
“2(25) “public service vehicle” means any motor vehicle used or adapted to be used for
the carriage of passengers for hire or reward and includes a motor cab contract
carriage, and stage carriage.”
“2(29) “stage carriage” means a motor vehicle carrying or adapted to carry more than six
persons excluding the driver which carries passengers for hire or reward at separate fares
paid by or for individual passengers either for the whole journey or for stages of the
journey:”
“2(33) “transport vehicle” means a public service vehicle or a goods vehicle:”
The Act (New Act):
“2(14) “goods carriage” any motor vehicle constructed or adapted for use solely for the
carriage of goods or any motor vehicle not to constructed or adapted when used for the
carriage of goods:”
“2(35) “public service vehicles” means any motor vehicles used or adapted to be used for
the carriage of passengers for hire or reward, and includes a maxi cab a motor cab,
contract and stage carriage:”
“ 2(40) “stage carriage” means a motor vehicle constructed or adapted to carry more than
six passengers excluding the driver for (sic) or reward at separate fares paid by or for
individual passengers either for the whole journey or for stages of the journey:”
“2(47) “transport vehicle” means a pubic services vehicle a goods carriage an educational
institution bus or a private service vehicle:”
(Underlined for emphasis)
10. “Liability” as defined in Section 145(c) of the Act reads as follows:
“Liability”, wherever used in relation to the death of or bodily injury to any person,
includes liability in respect thereof under Section 140.”
11. Third party risks in the background of vehicles which are subject-matter of
insurance are dealt with in Chapter VIII of the old Act and Chapter XI of the Act.
Proviso to Section 147 of the Act (sic) is to be (sic) with Section 96 of the old
Act. Proviso to Section 147 of the Act reads as follows:
Provided that a policy shall not be required—
(i) to cover liability in respect of the death arising out of and in the course of his
employment of the employee of a person insured by the policy or in respect of
bodily injure sustained by such an employee arising out of and in the course of his
employment other than a liability arising under the Workmen’s Compensation Act,
1993 (8 of 1923) in respect of the death of or bodily injury to, any such employee—
(a) engaged in driving the vehicle, or
(b) if it is a public service vehicle engaged as conductor of the vehicle or in
examining tickets on the vehicles, or
(c) if it is a good carriage, being carried in the vehicle, or
(ii) to cover any contractual liability.”
12. It is of significance that proviso appended to Section 95 of the old Act contained
Clause (ii) which does not find place in the Act. The same reads as follows:—
“except where the vehicle is a vehicle in which passengers are carried for hire or reward
or by reason of or in pursuance of a contract of employment to cover liability in respect
of the death of or bodily injury to persons being carried in or upon or entering or
mounting or alighting from the vehicle at the time of the occurrence of the event out
of which a claim arises.”
13. The difference in the language of “goods vehicle” as appear in the old Act and
“goods carriage” in the Act is of significance. A bare reading of the provisions
makes it clear that the legislative intent was to prohibit goods vehicle from
carrying any passenger. This is clear from the expression “in addition to
passengers” as contained in definition of “good vehicle” in the old Act. The
position becomes further clear because the expression used is “good carriage” is
solely for the carriage of goods. Carrying of passengers in a goods carriage is not
contemplated in the Act. There is no provision similar to Clause (ii) of the
proviso appended to Section 95 of the old Act prescribing requirement of
insurance policy. Even Section 147 of the Act mandates compulsory coverage
against death of or bodily injury to any passenger of “public service vehicle”.
The proviso makes it further clear that compulsory coverage in respect of
drivers and conductors of public service vehicle and employees carried in
goods vehicle would be limited to liability under the Workmen’s
Compensation Act, 1923 (in short ‘WC Act”). There is no reference to any
passenger in “goods carriage”.
14. The inevitable conclusion, therefore, is that provisions of the Act do not enjoin
any statutory liability on the owner of a vehicle to get his vehicle insured for any
passenger travelling in a goods carriage and the insurer would have no liability
therefor.
15. Our view gets support from a recent decision of a three-Judge Bench of this
Court in New India Assurance Company Limited v. Asha Rani and Ors.,
2002 (8) Supreme 594, in which it has been held that Satpal Singh’s case (supra)
was not correctly decided. That being the position, the Tribunal and the High
Court were not justified in holding that the insurer had the liability to satisfy
the award.
16. This position was also highlighted in Oriental Insurance Co. Ltd. v. Devireddy
Konda Reddy and others, 2003 (2) SCC 339. Subsequently also in National
Insurance Co. Ltd. v. Ajit Kumar and others, 2003 (9) SCC 668, in National
Insurance Co. Ltd. v. Baljit Kaur and others, 2004 (2) SCC 1 and in National
Insurance Co. Ltd. v. Bommithi Subbhayamma and others, 2005 (12) SCC 243,
the view in Asha Rani’s case (supra) was reiterated.”
8. Above being the position, the impugned order of the High Court is not sustainable and is
set aside. It is open to the claimant to recover the amount awarded from the owners of the
offending vehicles.
9. The appeal is allowed with no order as to costs.
Appeal allowed.

[2008 (1) T.N.C.J. 790 (SC)]


SUPREME COURT
BEFORE:
TARUN CHATTERJEE AND HARJIT SINGH BEDI, JJ.
PURAN RAM ...Petitioner
Versus
BHAGURAM AND ANOTHER ...Respondents
[Civil Appeal No. 1673 of 2008 (Arising out of SLP (C) No. 17637 of 2005), decided on 29 th
February, 2008]
(A) Amendment in plaint—Allowed by the trial Court— Interference made by the
High Court in exercise of writ jurisdiction—Competency of—In a suit for specific
performance of contract for sale, it is permissible to amend a part of the description of
the suit property not only in the plaint but also in the agreement—High Court ought not to
have interfered with the order of the trial Court when the order of the trial Court was
passed on sound consideration of laws and facts—And when it cannot be said that the order
of the trial Court was either without jurisdiction or perverse or arbitrary.
(Paras 11 and 14)
(B) Specific Relief Act, 1963—Section 26—Scope of—When through fraud or a
mutual mistake of the parties, the agreement in writing does not express their real
intention, it is open to the parties to apply for amendment of the instrument—Situations
highlighted. (Para 11)
(C) Amendment—Impleading—Discretion of Court to allow an application for
amendment of the plaint even where the relief sought to be added by amendment is
allegedly barred by limitation.
(Para 15)
Case law.—AIR 1921 Mad 664; 2004 (6) SCC 415; AIR 1969 SC 1267.
Important Point
The Court may in its discretion allow an application for amendment of the plaint even
where relief sought to be added by amendment is allegedly barred by limitation.
JUDGMENT
TARUN CHATTERJEE, J.—Leave granted.
2. This appeal relates to rejection of an application for amendment of plaint in a suit for
specific performance of the agreement for sale passed by the High Court of Rajasthan at Jodhpur
by which the High Court, in the exercise of its power under Article 227 of the Constitution, had
reversed the order of the Second Additional District Judge, Bikaner allowing the application
for amendment of the plaint.
3. On 18th of December, 1997, the plaintiff/appellant had filed a suit for specific
performance of a contract to sell relating to 25 bighas of irrigated agricultural land in Chak No. 3
SLM, being Square No. 112/63, Colonization Tehsil Pungal, District Bikaner, Rajasthan
(hereinafter called as “the suit property”) and for permanent injunction.
4. The case made out by the appellant in the plaint is to the following effect:—
5. The appellant had entered into an agreement for sale to purchase the suit property
for a sum of Rs. 2,00,000/-. On 12th of April, 1991, he paid a sum of Rs. 50,000/- to the vendor
Bhaguram. By virtue of the payment, Bhaguram, the respondent No.1, has put the appellant in
possession of the suit property and has also agreed to receive a further sum of Rs.1,50,000/- from
the appellant within a period of 30 days and thereafter execute the sale deed in favour of the
appellant. On 12th of April, 1991, Bhaguram received the balance consideration money of
Rs.1,50,000/- from the appellant and executed an agreement to sell and a power of attorney in his
favour. Since the respondent No.1 had failed to execute the sale deed after receiving the balance
consideration money of Rs.1,50,000/-, the appellant was constrained to file the suit for specific
performance of contract for sale and for permanent injunction in respect of the suit property. It is
to be noted that the appellant in his plaint has described the suit property as falling in Chak No.3
SSM, Tehsil Pungal, District Bikaner.
6. When the description of a part of the suit property was found to be a mutual mistake, the
appellant filed an application for amendment of the plaint under Order VI, Rule 17 of the Code of
Civil Procedure on 20th of March, 1998 seeking to amend the plaint and give the description of
the suit property as Chak No.3 SLM instead of Chak No. 3 SSM. Initially, the application for
amendment of the plaint was filed seeking to correct a part of the description of the suit property
only in the plaint. The application for amendment of the plaint was contested by the respondent
No.1. However, by an order dated 29th of August, 1998, the prayer for amendment of the plaint
was rejected by the trial Court on the ground that the plaint was filed on the basis of the
agreement to sell dated 12th of April, 1991 and since no prayer was made for getting the
agreement amended, the application for amendment of the plaint could not be allowed. Feeling
aggrieved, a revision petition was filed, but later on, the same was rejected as withdrawn with
liberty to raise the question in appeal against the final judgment, if such occasion arose. Since the
agreement entered into by the parties contained a wrong description relating to the suit property,
the appellant filed another application for amendment of the plaint seeking amendment this time
not only of the plaint but also the agreement to sell dated 12th of April, 1991 so as to describe the
suit property as Chak No.3 SLM, later on converted to Chak No. 3 SWM in place of Chak No.3
SSM. In the said application for amendment, the appellant sought amendment of the agreement
on the ground that under Section 26 of the Specific Relief Act, 1963, he was entitled to seek
amendment in the plaint as well as in the agreement by which the nature of the suit, which is a
suit for specific performance of the contract for sale could not be said to have been changed. This
application for amendment of the plaint was also contested by the respondent No.1 contending,
inter alia, that if such amendment was allowed, the nature and character of the suit would be
changed and also that the appellant cannot be permitted to amend the agreement in question in a
suit for specific performance of contract for sale. By an order dated 25th of February, 2005, the
Second Additional District Judge, Bikaner, allowed the application for amendment of the plaint.
Feeling aggrieved by the aforesaid order of the Second Additional District Judge, Bikaner, the
respondent No.2, who has purchased the suit property from the respondent No.1, filed a
petition under Article 227 of the Constitution challenging the aforesaid order allowing the
application for amendment of the plaint.
7. By an order dated 16th of May, 2005, which is now impugned in this appeal, the High
Court allowed the petition and set aside the order of the trial Court, inter alia, on the following
grounds:—
(i) Relief sought for by the appellant by way of amendment of the plaint could not be
allowed in view of the expiry of the period of limitation;
(ii) If such amendment was allowed, the nature of the suit would change from a suit for
specific performance of contract for sale to a suit for declaration which was not
permissible;
8. On the aforesaid findings, the High Court, as noted herein earlier, had rejected the
application for amendment of the plaint by passing the impugned judgment. The said order
is now under challenge before us by way of a special leave petition in respect of which leave has
already been granted. It may be stated at this juncture that the trial Court in its discretion had
allowed the application for amendment of plaint. In that situation, it needs to be seen whether it
was open to the High Court in the exercise of its power under Article 227 of the Constitution to
reverse the said order and reject the application for amendment of plaint. We will come to this
question later after we deal with the question whether the application for amendment of
plaint in the facts and circumstances of the case and on the allegations made in the plaint could be
rejected.
9. Heard the learned counsel for the parties and examined the impugned order and the
order of the trial Court as well as the application for amendment of the plaint and other materials
on record. After hearing the learned counsel for the parties and considering the nature of
amendment sought for, we are not in agreement with the order passed by the High Court rejecting
the application for amendment of the plaint. The learned counsel appearing on behalf of the
appellant has contended that in view of the nature of amendment sought for in the plaint as well
as in the agreement, the High Court was not justified in rejecting the prayer for amendment of the
plaint and the agreement. He further contended that in view of Section 26 of the Specific Relief
Act, 1963, it was open to the appellant to apply for amendment of the agreement for sale. The
learned counsel for the appellant also contended that since the prayer for amendment of the plaint
was only to correct a part of the description of the suit property in the agreement for sale as well
as in the plaint, the Court was not justified in rejecting the application for amendment of the
plaint and the agreement. Further, by such amendment of the plaint, neither the nature and
character of the suit would be changed nor the question of limitation could arise. According to the
learned counsel for the appellant, the suit would remain a suit for specific performance of the
contract for sale and only a part of the description of the suit property would be changed, as noted
herein earlier, by way of such amendment. The learned counsel appearing for the respondent,
however, sought to argue that the amendment of the agreement, even so far as a part of the
description of the suit property is concerned, cannot be allowed in a suit for specific performance
of the contract for sale. According to him, Section 26 of the Specific Relief Act clearly
expresses the intention that if the description of the suit property needs to be corrected, it can only
be corrected by instituting a suit for correction or rectification of the deed. He has also drawn our
attention to sub-section (4) of Section 26 and submitted that no relief for rectification of an
instrument should be granted to any party under Section 26 of the Act unless it has been
specifically claimed. So far as the prayer for amendment of the plaint is concerned, the learned
counsel for the respondent contended that the prayer for amendment of the plaint would be barred
by limitation as the agreement was entered into on 12th of April, 1991 and the amendment of the
plaint was sought on 9th of May, 2003. Accordingly, neither the prayer for amendment of the
agreement, nor the prayer for amendment of the plaint could be allowed even though the said
amendment relates only to the change of a part of the description of the suit property.
10. Keeping the arguments advanced by the learned counsel for the parties in mind, let us
now consider whether the prayer for amendment of the plaint and the agreement, in the facts and
circumstances of the case, could be allowed or not. So far as the prayer for correcting or
rectifying the agreement in respect of a part of the description of the suit property is concerned, it
would be appropriate to look into the provisions made in Section 26 of the Specific Relief Act,
1963. Chapter 3 of the Specific Relief Act, 1963 specifically deals with rectification of
instruments. Section 26 provides as to when an instrument may be rectified and reads as
under:—
“26. When instrument may be rectified.—(1) When, through fraud or a mutual mistake
of the parties, a contract or other instrument in writing (not being the articles of
association of a company to which the Companies Act, 1956, applies) does not
express their real intention, then—
(a) either party or his representative in interest may institute a suit to have the
instrument rectified; or
(b) the plaintiff may, in any suit in which any right arising under the instrument is in
issue, claim in his pleading that the instrument be rectified; or
(c) a defendant in any such suit as is referred to in clause (b), may, in addition to any
other defence open to him, ask for rectification of the instrument.
(2) If, in any suit in which a contract or other instrument is sought to be rectified
under sub-section (1), the Court finds that the instrument, through fraud or
mistake, does not express the real intention of the parties, the Court may, in its
discretion, direct rectification of the instrument so as to express that intention, so
far as this can be done without prejudice to rights acquired by third persons in
good faith and for value.
(3) A contract in writing may first be rectified, and then if the party claiming
rectification has so prayed in his pleading and the Court thinks fit, may be
specifically enforced.
(4) No relief for the rectification of an instrument shall be granted to any party under
this section unless it has been specifically claimed;
Provided that where a party has not claimed any such relief in his pleading, the Court
shall, at any stage of the proceeding, allow him to amend the pleading on such terms as
may be just for including such claim.”
11. After closely examining the provisions made under Section 26 of the Specific Relief
Act, 1963, we do not find any difficulty to hold that in a suit for specific performance of contract
for sale, it is permissible to amend a part of the description of the suit property not only in the
plaint but also in the agreement. Section 26 clearly says as to when a contract or other instrument
can be rectified and provides that when through fraud or a mutual mistake of the parties, the
agreement in writing does not express their real intention, it is open to the parties to apply for
amendment of the instrument. It provides that when such a situation arises, then—
(a) either party or his representative in interest may institute a suit to have the instrument
rectified, or
(b) the plaintiff may, in any suit in which any right arising under the instrument is in
issue, claim in his pleading that the instrument be rectified.
12. A reading of these two conditions made under Section 26 of the Act would amply
show that either party may institute a suit to have the instrument rectified or a party who has
already filed a suit in which any right arising under the instrument is in issue may claim in his
pleading that the instrument be rectified. So far as the facts of the present case are concerned, it
cannot be doubted that the main issue in the suit for specific performance of the contract for
sale was relating to the agreement for sale in which a part of the description of the suit property
was wrongly given by mutual mistake and therefore, needed to be amended. Section 26, of
course, says that it would be open to a party to institute a suit for correcting the description of the
suit property, but the proviso to Section 26 clearly permits that where a party has not claimed any
such relief in his pleading, the Court shall at any stage of the proceeding allow him to amend the
plaint on such terms as may be just for including such claim. From a plain reading of the
provisions under Section 26 of the Act, there is no reason why the prayer for amendment of the
agreement to correct a part of the description of the suit property from Chak No. 3 SSM to Chak
No. 3 SLM, later on converted to Chak No. 3 SWM could not be granted. In our view, it is only a
correction or rectification of a part of the description of the suit property, which cannot involve
either the question of limitation or the change of nature of suit. In our view, the suit shall remain a
suit for specific performance of the contract for sale and a separate independent suit is not
needed to be filed when the proviso to Section 26 itself clearly permits either party to correct or
rectify the description of the suit property not only in the plaint but also in the agreement
itself. So far as the question of limitation is concerned, the agreement was entered into on 12th of
April, 1991 and the suit, admittedly, was filed within the period of limitation. Therefore,
even if the amendment of plaint or agreement is allowed, that will relate back to the filing of the
suit which was filed within the period of limitation. So far as the submission of the learned
counsel for the respondent that the rectification of the agreement cannot be permitted is
concerned, we are of the view that Section 26(4) of the Act only says that no relief for
rectification of instrument shall be granted unless it is specifically claimed. However,
proviso to Section 26, as noted herein earlier, makes it clear that when such relief has not been
claimed specifically, the Court shall at any stage of the proceeding allow such party to amend the
pleading as may be thought fit and proper to include such claim. Therefore, we are not in
agreement with the learned counsel for the respondent that Section 26 would stand in the way
of allowing the application for amendment of the agreement. The views expressed by us find
support in a decision of the Madras High Court in Raipur Manufacturing Co., Ltd v.
Joolaganti Venkatasubba RaoVeerasamy & Co., AIR 1921 Mad 664, wherein it was held that
where in the course of a suit for damages for breach of contract, the plaintiff contends that there is
a clerical error in the document embodying the contract, it is not always necessary that a separate
suit should have been brought for rectification of the document and it is open to the Court in a
proper case to allow the plaintiff to amend the plaint and ask for the necessary rectification. As
noted herein earlier, the learned counsel for the respondent contended before us that the
appellant could not get specific performance of the contract for sale unless he sued for
rectification of the agreement for sale. We are unable to accept this contention of the learned
counsel for the respondent for the simple reason that in this case, by filing the application for
amendment in the suit for specific performance of the contract for sale, the appellant had sought
the rectification of the agreement also. It is sufficient to observe that it was not necessary for
the appellant to file a separate suit for that purpose as contended by the learned counsel for the
respondent. It is open to the appellant to claim the relief of rectification of the instrument in the
instant suit. The amendment, in our view, in the agreement was a formal one and there was no
reason why such amendment could not be allowed.
13. The other ground on which the High Court has refused to permit the appellant to
amend the plaint is that if the amendment is allowed, the suit shall be converted into a suit for
declaration. We are unable to accept this view of the High Court. In our view, the suit is a suit for
specific performance of the contract for sale simplicitor and only a part of the description of the
suit property in the agreement as well as in the plaint was sought to be corrected or amended by
the appellant by filing the application for amendment of the plaint. If we are permitted to look
into the description of the suit property from the original plaint as well as from the application for
amendment, it would be clear that the description of the suit property has been kept intact
excepting that instead of Chak No. 3 SSM, Chak No. 3 SLM, later on converted to Chak No. 3
SWM, has been sought to be replaced. Therefore, it is difficult to conceive that by such
amendment, that is, instead of Chak No.3 SSM, if Chak No.3 SLM, later on converted to SWM is
substituted, either the description of the suit property or the nature of the suit would change. This
is only a change in a part of the description of the suit property, which was wrongly described by
mutual mistake. Therefore, in our view, this change in a part of the description of the suit
property in the plaint cannot convert the suit for specific performance of the contract to a suit for
declaration. In any view of the matter, the relief claimed in the suit remained the same i.e. a
decree for specific performance of the contract for sale and by amendment, no declaration has
been sought for in respect of the instrument.
14. We may now take into consideration as to whether the High Court, in the exercise of
its power under Article 227 of the Constitution, was justified in rejecting the application for
amendment of the plaint, which, in the discretion of the trial Court, was allowed. We are of the
view that the High Court ought not to have interfered with the order of the trial Court when the
order of the trial Court was passed on sound consideration of law and facts and when it cannot be
said that the order of the trial Court was either without jurisdiction or perverse or arbitrary.
15. Before parting with this judgment, we may deal with the submission of the learned
counsel for the respondent that the application for amendment could not be allowed inasmuch as
the same was barred by limitation. We are unable to accept this contention of the learned counsel
for the respondents. In this regard, we may observe that the Court may, in its discretion, allow an
application for amendment of the plaint even where the relief sought to be added by amendment
is allegedly barred by limitation. This view was also expressed by this Court in Pankaja & Anr. v.
Yellappa (Dead) by LRs. & Ors., (2004) 6 SCC 415. In that decision, it was held that there is no
absolute rule that in such a case, the amendment should not be allowed and the discretion of the
court in that regard depends on the facts and circumstances of the case and such discretion has to
be exercised on a judicious evaluation thereof. It was further held in that decision that an
amendment, which subserves the ultimate cause of justice and avoids further litigation, should be
allowed. It is well-settled by a catena of decisions of this Court that allowing and rejecting an
application for amendment of a plaint is really the discretion of the Court and amendment of the
plaint also should not be refused on technical grounds. In this connection reliance can be placed
on a decision of this Court in Jai Jai Ram Manohar Lal v. National Building Material Supply,
Gurgaon, AIR 1969 SC 1267. In paragraph 8 of the said decision this Court observed that “since
the name in which the action was instituted was merely a misdescription of the original
plaintiff, no question of limitation arises; the plaint must be deemed on amendment to have
been instituted in the name of the real plaintiff on the date on which it was originally instituted.”
A reading of this observation would amply clear the position that no question of limitation shall
arise when mis-description of the name of the original plaintiff or mis-description of the suit
property arose in a particular case. Apart from that in the present case, although, the relief
claimed before as well as after the amendment remained the same i.e. a decree for specific
performance of the contract for sale, even then, in the facts and circumstances of the present case,
as noted herein earlier, we do not find why the High Court should have interfered with the
discretion used by the trial Court in allowing the application for amendment of the plaint.
16. For the reasons aforesaid, we are unable to sustain the impugned order of the High
Court. Accordingly, the impugned order of the High Court is set aside and that of the Second
Additional District Judge, Bikaner is restored. The application for amendment of the plaint, as
prayed for, is thus allowed. It will be open to the respondents to file their written statement if the
same has not yet been filed and if the same has been filed, it will be open to them to file an
additional written statement within a period of one month from the date of supply of a copy
of this order to the trial Court.
17. The appeal is thus allowed to the extent indicated above. There will be no order as to
costs.
Appeal allowed.

[2008 (1) T.N.C.J. 799 (SC)]


SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT, P. SATHASIVAM
AND AFTAB ALAM, JJ.
KASHMIR SINGH ...Petitioner
Versus
HARNAM SINGH AND ANOTHER ...Respondents
[Civil Appeal No. 1036 of 2002, decided on 3rd March, 2008]
(A) Second appeal—Interference under—High Court will however interfere, where it
is found that the conclusions drawn by the lower appellate Court were erroneous being
contrary to the mandatory provisions of law applicable or its settled position on the basis of
pronouncements made by the Apex Court or was based upon inadmissible evidence or
arrived at by ignoring material evidence.
(Para 10)
(B) Words and phrases—“Substantial question of law”—Means—Arising of—
Depend on the facts and circumstances of each case—Paramount overall consideration
being the need for striking a judicious balance between the indispensable obligation to
do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.
(Para 15)
(C) Civil Procedure Code, 1908—Section 100—Principles relating to—Exceptions to
general rule. (Para 17)
Case law.—2000 (1) SCC 434; 2000 (3) SCC 708; JT 2002 (10) SC 98; AIR 1962 SC
1314; 1999 (3) SCC 722; 1976 (1) SCC 803; AIR 1928 P.C. 172; AIR 1951 Mad 969; AIR 1953
SC 521; 2001 (3) SCC 179.
Important Point
In a case where from a given set of circumstances two inferences of fact are possible, one
drawn by the lower appellate Court will not be interfered by the High Court in second
appeal.
JUDGMENT
DR. ARIJIT PASAYAT, J.—Challenge in this appeal is to the judgment of a learned
Single Judge of the Punjab and Haryana High Court allowing the second appeal filed by
respondent No.1. The second appeal was filed under Section 100 of the Code of Civil Procedure,
1908 (in short the ‘Code’). Though many points were urged in support of the appeal it was
primarily submitted that no substantial question of law was formulated and second appeal would
not have been allowed without formulating any such question.
2. In view of Section 100 of the Code the memorandum of appeal shall precisely state
substantial question or questions of law involved in the appeal as required under sub-section (3)
of Section 100. Where the High Court is satisfied that in any case any substantial question of law
is involved it shall formulate that question under sub-section (4) and the second appeal has to be
heard on the question so formulated as stated in sub-section (5) of Section 100.
3. Section 100 of the Code deals with “second appeal”. The provision reads as
follows:
“Section 100.—(1) Save as otherwise expressly provided in the body of this Code or by
any other law for the time being in force, an appeal shall lie to the High Court from every
decree passed in appeal by any Court subordinate to the High Court, if the High Court is
satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely
state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is
involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall,
at the hearing of the appeal, be allowed to argue that the case does not involve
such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the
power of the Court to hear, for reasons to be recorded, the appeal on any other substantial
question of law, not formulated by it, if it is satisfied that the case involves such
question.”
4. A perusal of the impugned judgment passed by the High Court does not show that any
substantial question of law has been formulated or that the second appeal was heard on the
question, if any, so formulated. That being so, the judgment cannot be maintained.
5. In Ishwar Dass Jain v. Sohan Lal, 2000 (1) SCC 434, this Court in para 10, has stated
thus:
“10. Now under Section 100, after the 1976 Amendment, it is essential for the High
Court to formulate a substantial question of law and it is not permissible to
reverse the judgment of the first appellate Court without doing so.”
6. Yet again in Roop Singh v. Ram Singh, 2000 (3) SCC 708, this Court has expressed that
the jurisdiction of a High Court is confined to appeals involving substantial question of law.
Para 7 of the said judgment reads:
“7. It is to be reiterated that under Section 100 jurisdiction of the High Court to
entertain a second appeal is confined only to such appeals which involve a
substantial question of law and it does not confer any jurisdiction on the High
Court to interfere with pure questions of fact while exercising its jurisdiction
under Section 100. That apart, at the time of disposing of the matter the High
Court did not even notice the question of law formulated by it at the time of
admission of the second appeal as there is no reference of it in the impugned
judgment. Further, the fact findings Courts after appreciating the evidence held
that the defendant entered into the possession of the premises as a batai, that is to
say, as a tenant and his possession was permissive and there was no pleading or
proof as to when it became adverse and hostile. These findings recorded by
the two Courts below were based on proper appreciation of evidence and the
material on record and there was no perversity, illegality or irregularity in those
findings. If the defendant got the possession of suit land as a lessee or under a
batai agreement then from the permissive possession it is for him to establish by
cogent and convincing evidence to show hostile animus and possession
adverse to the knowledge of the real owner. Mere possession for a long time
does not result in converting permissive possession into adverse possession
(Thakur Kishan Singh v. Arvind Kumar, 1994 (6) SCC 591. Hence the High
Court ought not to have interfered with the findings of fact recorded by both
the Courts below.”
7. The position has been reiterated in Kanahaiyalal and Ors. v. Anupkumar and Ors., JT
2002 (10) SC 98
8. After the amendment, a second appeal can be filed only if a substantial question of
law is involved in the case. The memorandum of appeal must precisely state the substantial
question of law involved and the High Court is obliged to satisfy itself regarding the existence of
such a question. If satisfied, the High Court has to formulate the substantial question of law
involved in the case. The appeal is required to be heard on the question so formulated. However,
the respondent at the time of hearing of the appeal has a right to argue that the case in the Court
did not involve any substantial question of law. The proviso to the section acknowledges the
powers of the High Court to hear the appeal on a substantial point of law, though not
formulated by it with the object of ensuring that no injustice is done to the litigant where such a
question was not formulated at the time of admission either by mistake or by inadvertence.
9. It has been noted time and again that without insisting for the statement of such a
substantial question of law in the memorandum of appeal and formulating the same at the time of
admission, the High Courts have been issuing notices and generally deciding the second appeals
without adhering to the procedure prescribed under Section 100 of the Code. It has further been
found in a number of cases that no efforts are made to distinguish between a question of law and
a substantial question of law. In exercise of the powers under this section in several cases, the
findings of fact of the first appellate Court are found to have been disturbed. It has to be kept
in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation.
Being a substantive statutory right, it has to be regulated in accordance with law in force at the
relevant time. The conditions mentioned in the section must be strictly fulfilled before a second
appeal can be maintained and no Court has the power to add or to enlarge those grounds. The
second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts
will not be disturbed by the High Court in exercise of the powers under this section. Further, a
substantial question of law has to be distinguished from a substantial question of fact. This
Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd., AIR 1962 SC
1314, held that :
“The proper test for determining whether a question of law raised in the case is
substantial would, in our opinion, be whether it is of general public importance or
whether it directly and substantially affects the rights of the parties and if so whether it is
either an open question in the sense that it is not finally settled by this Court or by the
Privy Council or by the Federal Court or is not free from difficulty or calls for discussion
of alternative views. If the question is settled by the highest Court or the general
principles to be applied in determining the question are well-settled and there is a mere
question of applying those principles or that the plea raised is palpably absurd the
question would not be a substantial question of law.”
10. It is not within the domain of the High Court to investigate the grounds on which the
findings were arrived at, by the last Court of fact, being the first appellate Court. It is true that the
lower appellate Court should not ordinarily reject witnesses accepted by the trial Court in
respect of credibility but even where it has rejected the witnesses accepted by the trial Court,
the same is no ground for interference in second appeal when it is found that the appellate Court
has given satisfactory reasons for doing so. In a case where from a given set of
circumstances two inferences of fact are possible, one drawn by the lower appellate Court will not
be interfered by the High Court in second appeal. Adopting any other approach is not
permissible. The High Court will, however, interfere where it is found that the conclusions
drawn by the lower appellate Court were erroneous being contrary to the mandatory
provisions of law applicable or its settled position on the basis of pronouncements made by the
Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material
evidence.
11. The question of law raised will not be considered as a substantial question of law, if it
stands already decided by a larger Bench of the High Court concerned or by the Privy Council or
by the Federal Court or by the Supreme Court. Where the facts required for a point of law have
not been pleaded, a litigant should not be allowed to raise that question as a substantial question
of law in second appeal. Mere appreciation of facts, the documentary evidence or the meaning of
entries and the contents of the documents cannot be held to be raising a substantial
question of law. But where it is found that the first appellate Court has assumed jurisdiction
which did not vest in it, the same can be adjudicated in the second appeal, treating it as a
substantial question of law. Where the first appellate Court is shown to have exercised its
discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure
requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna
Govind Morey, 1976 (1) SCC 803, held that whether the trial Court should not have exercised its
jurisdiction differently is not a question of law justifying interference. [See: Kondiba
Dogadu Kadam v. Savitribai Sopan Gujar and others, 1999 (3) SCC 722].
12. The phrase “substantial question of law”, as occurring in the amended Section 100 is
not defined in the Code. The word substantial, as qualifying “question of law”, means—of
having substance, essential, real, of sound worth, important or considerable. It is to be understood
as something in contradistinction with—technical, of no substance or consequence, or academic
merely. However, it is clear that the Legislature has chosen not to qualify the scope of
“substantial question of law” by suffixing the words “of general importance” as has been done in
many other provisions such as Article 133(1)(a) of the Constitution. The substantial question of
law on which a second appeal shall be heard need not necessarily be a substantial question of law
of general importance. In Guran Ditta v. T. Ram Ditta, AIR 1928 PC 172, the phrase ‘substantial
question of law’ as it was employed in the last clause of the then existing Section 100 (since
omitted by the Amendment Act, 1973) came up for consideration and their Lordships held that it
did not mean a substantial question of general importance but a substantial question of law
which was involved in the case. In Sri Chunilal’s case (supra), the Constitution Bench
expressed agreement with the following view taken by a full Bench of the Madras High Court in
Rimmalapudi Subba Rao v. Noony Veeraju, AIR 1951 Mad 969:
“When a question of law is fairly arguable, where there is room for difference of opinion
on it or where the Court thought it necessary to deal with that question at some
length and discuss alternative views, then the question would be a substantial
question of law. On the other hand if the question was practically covered by the
decision of the highest Court or if the general principles to be applied in determining
the question are well-settled and the only question was of applying those principles to the
particular facts of the case it would not be a substantial question of law.”
13. This Court laid down the following test as proper test, for determining whether a
question of law raised in the case is substantial as quoted in Sir Chunilal’s case (supra).
14. In Dy. Commnr. Hardoi v. Rama Krishna Narain, AIR 1953 SC 521, also it was held
that a question of law of importance to the parties was a substantial question of law entitling the
appellant to a certificate under (the then) Section 100 of the CPC.
15. To be “substantial” a question of law must be debatable, not previously settled by law
of the land or a binding precedent, and must have a material bearing on the decision of the case, if
answered either way, insofar as the rights of the parties before it are concerned. To be a question
of law “involving in the case” there must be first a foundation for it laid in the pleadings and the
question should emerge from the sustainable findings of fact arrived at by Court of facts and
it must be necessary to decide that question of law for a just and proper decision of the case. An
entirely new point raised for the first time before the High Court is not a question involved in the
case unless it goes to the root of the matter. It will, therefore, depend on the facts and
circumstance of each case whether a question of law is a substantial one and involved in the case,
or not; the paramount overall consideration being the need for striking a judicious balance
between the indispensable obligation to do justice at all stages and impelling necessity of
avoiding prolongation in the life of any lis. (See: Santosh Hazari v. Purushottam Tiwari
(deceased) by LRs., (2001) 3 SCC 179.
16. The principles relating to Section 100, relevant for this case, may be summarized thus:

(i) An inference of fact from the recitals or contents of a document is a question of
fact. But the legal effect of the terms of a document is a question of law. Construction
of a document involving the application of any principle of law, is also a
question of law. Therefore, when there is misconstruction of a document or wrong
application of a principle of law in construing a document, it gives rise to a
question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of
law, and not a mere question of law. A question of law having a material bearing on
the decision of the case (that is, a question, answer to which affects the rights of
parties to the suit) will be a substantial question of law, if it is not covered by any
specific provisions of law or settled legal principle emerging from binding
precedents, and, involves a debatable legal issue. A substantial question of law will
also arise in a contrary situation, where the legal position is clear, either on account
of express provisions of law or binding precedents, but the Court below has
decided the matter, either ignoring or acting contrary to such legal principle. In
the second type of cases, the substantial question of law arises not because the law is
still debatable, but because the decision rendered on a material question, violates the
settled position of law.
17. The general rule is that High Court will not interfere with concurrent findings of the
Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i)
the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have
drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the Courts
have wrongly cast the burden of proof. When we refer to ‘decision based on no evidence’, it not
only refers to cases where there is a total dearth of evidence, but also refers to any case, where the
evidence, taken as a whole, is not reasonably capable of supporting the finding.
18. In view of the aforesaid position, we set aside the impugned judgment of the High
Court and remit the matter to it for fresh consideration. The second appeal can be only
maintained after formulating substantial question of law, if any and not otherwise. We make
it clear we have not expressed any opinion on the question as to whether any substantial question
of law is involved or not.
19. The appeal is allowed to the aforesaid extent without any order as to costs.

[2008 (1) T.N.C.J. 806 (SC)]


SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.
NATIONAL INSURANCE COMPANY LTD. ...Petitioner
Versus
SEHTIA SHOES ...Respondent
[Civil Appeal No. 1602 of 2008 (Arising out of SLP (C) No. 12953 of 2005), decided on 26 th
February, 2008]
(A) Consumer Protection Act, 1986—Interest—Award of—Competency of the forum
—In appropriate cases the forum and the Commission under the Act are authorised to
grant reasonable interest under the facts and circumstance of the case. (Para 7)
(B) Consumer Protection Act, 1986—Section 14—Deficiency of service—Claim
preferred—Deemed to be based upon the insurance policy—Covered under Section 14
of the Act—Claim petition after settlement of the dispute on the ground that earlier
settlement was obtained under coercion and was not on account of free will—Maintainable
—Not barred—But it has to be proved that agreement to accept a particular amount was on
account of coercion—Discharge voucher was signed by the claimant—Whether it was
signed voluntarily or under coercion—Matter needs investigation—Matter remitted before
the District Forum for fresh consideration. (Paras
7 to 9)
Case law.—1999 (6) SCC 400.
JUDGMENT
DR. ARIJIT PASAYAT, J.—Leave granted.
2. Challenge in this appeal is to the order passed by the National Consumer Redressal
Commission, New Delhi (in short ‘National Commission’). The National Commission by
the impugned order dismissed the revision petition filed by the appellant questioning correctness
of the order passed by the Consumer District Forum, Hissar (in short ‘District Forum’) and State
Consumer Disputes Redressal Commission, Haryana (in short ‘State Commission’).
3. The controversy lies within a very narrow compass. Claim was lodged by the
respondent who had obtained a shopkeeper insurance policy of the appellant company on
15.7.2001. A claim was lodged with the appellant stating that on account of fire insured articles
got destroyed. The surveyors and loss assessors assessed the net loss at Rs.2,82,301/-. It is the
case of the appellant that respondent without demur accepted the sum of Rs.2,72,301/- in full and
final settlement and accordingly payment of Rs.2,72,301/- was made. Thereafter, a
complaint was lodged before the District Forum claiming that his claim was Rs.9 lacs and he
should be indemnified to the extent of Rs.9 lacs less Rs.2,72,301/- which had been received by
him. Appellant objected to the complaint stating that since the respondent had accepted the
amount without any protest no further claim survives and the complaint was not maintainable.
4. The District Forum noted the rival stand including the stand of the respondent that the so
called settlement was signed by him under coercion and, therefore, the claim petition was
maintainable. The District Forum awarded a sum of Rs.4,95,000/-. In appeal, the State
Commission dismissed the appeal after noticing the rival stands which were reiteration of the
stands taken before the District Forum. A revision, as noted above, was filed before the
National Commission which dismissed the same holding as follows:
“In our view, the impugned order passed by the State Commission does not call for any
interference. The District Forum as well as State Commission considered the various
statements including Income-tax and Sales Tax returns as well as statements submitted to
the bank and also surveyor’s report. In our view, the assessment by the surveyor in
the present case cannot be accepted because surveyor has observed that even though the
shoes were affected by water and smoke, yet the loss would be only 30% and, thereafter,
reduced the assessment of loss, in our view this was unjustified. Hence revision petition
is dismissed.”
5. Learned counsel for the appellant submitted that though a claim can be entertained even
when there is a settlement to receive a particular amount, yet the same is subject to the condition
that the earlier settlement was obtained under coercion and/or was not on account of free
will. In the instant case it is submitted this vital aspect has been lost sight of by the District
Forum, the State Commission and the National Commission.
6. In response, learned counsel for the respondent submitted that immediately after the so
called settlement was arrived at grievance, was lodged with the authority stating that settlement
was not free and fair.
7. In United India Insurance v. Ajmer Singh Cotton & General Mills and Ors., 1999 (6)
SCC 400, it was, inter alia, observed as follows:
“4. We have heard learned counsel for the parties and perused the record. It is true
that the award of interest is not specifically authorised under the Consumer
Protection Act, 1986 (hereinafter called “the Act”) but in view of our
judgment in Sovintorg (India) Ltd. v. State Bank of India, Civil Appeal No. 82 of
1992 decided on 11.8.1999, we are of the opinion that in appropriate cases the
forum and the commissions under the Act are authorised to grant reasonable
interest under the facts and circumstances of each case. The mere execution of
the discharge voucher would not always deprive the consumer from preferring
claim with respect to the deficiency in service or consequential benefits arising
out of the amount paid in default of the service rendered. Despite execution of
the discharge voucher, the consumer may be in a position to satisfy the Tribunal
or the Commission under the Act that such discharge voucher or receipt had
been obtained from him under the circumstances which can be termed as
fraudulent or exercise of undue influence or by misrepresentation or the like. If in
a given case the consumer satisfies the authority under the Act that the
discharge voucher was obtained by fraud, misrepresentation, undue influence or
the like, coercive bargaining compelled by circumstances, the authority before
whom the complaint is made would be justified in granting appropriate relief.
However (sic so), where such discharge voucher is proved to have been obtained
under any of the suspicious circumstances noted hereinabove, the Tribunal
or the Commission would be justified in granting the appropriate relief under
the circumstances of each case. The mere execution of the discharge voucher and
acceptance of the insurance claim would not estop the insured from making
further claim from the insurer but only under the circumstances as noticed earlier.
The Consumer Disputes Redressal Forums and Commissions constituted under
the Act shall also have the power to fasten liability against the insurance
companies notwithstanding the issuance of the discharge voucher. Such a claim
cannot be termed to be fastening the liability against the insurance companies
over and above the liabilities payable under the contract of insurance envisaged
in the policy of insurance. The claim preferred regarding the deficiency of
service shall be deemed to be based upon the insurance policy, being covered
by the provisions of Section 14 of the Act.
5. In the instant cases the discharge vouchers were admittedly executed voluntarily and
the complainants had not alleged their execution under fraud, undue influence, misrepresentation
or the like. In the absence of pleadings and evidence the State Commission was justified in
dismissing their complaints. The National Commission however granted relief solely on the
ground of delay in the settlement of claim under the policies. The mere delay of a couple of
months would not have authorised the National Commission to grant relief particularly when the
insurer had not complained of such a delay at the time of acceptance of the insurance amount
under the policy. We are not satisfied with the reasoning of the National Commission and
are of the view that the State Commission was justified in dismissing the complaints though on
different reasonings. The observations of the State Commission in Jivajeerao Cotton Mills Ltd. v.
New India Assurance Co. Ltd., OP No. 52 of 1991 decided on 28.11.1991, shall always be
construed in the light of our findings in this judgment and the mere receipt of the amount without
any protest would not always debar the claimant from filing the complaint.”
8. Filing of a complaint is, therefore, not barred; but it has to be proved that agreement to
accept a particular amount was on account of coercion. In the instant case, this relevant factor
has not been considered specifically by the District Forum, State Commission and the National
Commission. Though plea of coercion was taken by claimant-respondent, same was refuted by
the appellant. There is no dispute that the discharge voucher had been signed by the respondent.
There has to be an adjudication as to whether the discharge voucher was signed voluntarily or
under coercion. We remit the matter to the District Forum for fresh consideration. It would do
well to dispose of the matter as early as practicable, preferably by the end of September, 2008.
9. The appeal is allowed to the aforesaid extent. No costs.
Appeal allowed.

[2008 (1) T.N.C.J. 810 (Mad)]


MADRAS HIGH COURT
BEFORE:
A.C. ARUMUGAPERUMAL ADITYAN, J.
M/S. SRI BALAJI INTERCONTINENTAL REP. BY
ITS PARTNER ASHOK KUMAR MORARKA ...Petitioner
Versus
THE MADRAS PURASAWALKAM HINDU
JANOBAKARA SASWATH NIDHI LTD.,
REP. BY ITS MANAGING DIRECTOR ...Respondent
[C.R.P. (NPD) No. 550 of 2008 and M.P. No. 1 of 2008, decided on 21 February, 2008]
st

Court-fee—Court-fee is to be paid only on basis of relief asked in plaint.


(Paras 2 to 5)
Case law.—AIR 1987 SC 1947; 1985 (2) SCC 54—relied on.
Counsel.—Mr. V. Bhiman Advocate, for M/s. Sampath Kumar Associates, for the
petitioner.
JUDGMENT
A.C. ARUMUGAPERUMAL ADITYAN, J.—This revision petition has been directed against
the Judgment in C.M.A.No.50 of 2007 in O.S.No.1168 of 2003 which had arisen out of the
Judgment and decree in O.S.No.1168 of 2003 on the file of XV Assistant Judge,City Civil Court,
Chennai. The learned XV Assistant Judge, City Civil Court, Chennai while answering the issue
No.5 in O.S.No.1168 of 2003 had returned the plaint holding that from the averment in the
written statement and also on the basis of the evidence let in on the side of the defendant, it is
seen that a sum of Rs.2,40,47,259 is the amount due under the mortgages to the defendant and on
that score, the plaintiff has to pay the additional court-fee and to present the plaint before the
proper forum. Aggrieved by the findings of the learned XV Assistant Judge, City Civil Court,
Chennai , the plaintiff in O.S.No.1168 of 2003 had preferred an appeal in C.M.A.No.50 of 2007
before the Additional District and Sessions Judge/Fast Track Court-V, Chennai. The learned
Additional District and Sessions Judge/Fast Track Court-V, Chennai concurred with the view
of the learned District Munsif, had dismissed C.M.A.No.50 of 2007 which necessitated the
plaintiff to prefer this revision.
2. It is a well settled principle that court-fee is to be paid only on the basis of the relief
asked for in the plaint by the plaintiff. The plaintiff has filed the suit in O.S.No.1168 of 2003 on
the basis of three mortgages dated 30.8.1995,14.2.1996 and 12.6.1996 for redemption of the said
mortgages. On the basis of the mortgage dated 30.8.1995, the mortgage money is for
Rs.6,00,000/-, under the mortgage dated 14.2.1996, the mortgage amount is for Rs.3,00,000/-
and as per the mortgage dated 12.6.1996, the mortgage amount is for Rs.3,00,000/-. According to
the plaintiff, he had already paid the mortgage amount under the three mortgages to the tune
of Rs.11,35,296/- and only a sum of Rs.3,30,507.48 remains to be paid.
3. The learned XV Assistant Judge, City Civil Court, Chennai while answering issue
No.5, has observed that as per the contentions of the defendant in the written statement, the
plaintiff has to pay a sum of Rs.2,40,47,259/- and hence the plaintiff has to pay the additional
court-fee and to present the plaint before the proper forum. The learned Additional District
Judge, after observing that the plaintiff has filed the suit under Order XXXIV, Rule 1 of CPC
under the three mortgages dated 30.8.1995, 14.2.1996 and 12.6.1996 and since the trial Court has
come to a conclusion that it has no pecuniary jurisdiction to try the suit has returned the plaint
as per the provisions under Order VII, Rule 10 of CPC. But the first appellate Court has not
considered as to whether the plaintiff is liable to discharge the mortgage debt of Rs.2,40,47,259/-
as stated by the learned XV Assistant Judge, City Civil Court, Chennai in O.S.No.1168 of 2003.
For the relief asked for in the plaint, the plaintiff has paid the court-fee as per the provisions
contemplated under the Tamil Nadu Court-fees and Suits Valuation Act. On the basis of the
pleadings in the written statement, I am of the view that the Court cannot direct the plaintiff to
pay the additional court-fee for the relief which the plaintiff has not asked for in the plaint.
The defendant has also not raised any counter claim for the said amount of Rs.2,40,47,259/- in his
written statement because that is not the amount due under the suit mortgages dated 30.8.1995,
14.2.1996 and 12.6.1996.
4. The learned counsel appearing for the revision petitioner in support of his contention
has placed his reliance in the ratio decidenti in Smt. Nandita Bose v. Ratanlal Nahata, AIR 1987
SC 1947, wherein the following principle has been enumerated :
“Under Section 15 of the Code every plaint should be instituted in the Court of the lowest
grade competent to try it and if the value of the suit was Rs.42,000/- only it had to be
filed in the City Civil Court of Calcutta and not on the Original Side of the High Court.
The principles which regulate the pecuniary jurisdiction of Civil Courts are well settled.
Ordinarily, the valuation of a suit depends upon the reliefs claimed therein and the
plaintiff’s valuation in his plaint determines the Court in which it can be presented.
It is also true that the plaintiff cannot invoke the jurisdiction of a Court by either
grossly over valuing or grossly under-valuing a suit.”
For the same proposition of law, the learned counsel appearing for the revision petitioner
would rely on a dictum in Abdulla Bin Ali v. Galappa, (1985) 2 SCC 54, wherein the relevant
observation of the Honourable Apex Court runs as follows:
“There is no denying the fact that the allegations, made in plaint decide the forum. The
jurisdiction does not depend upon the defence taken by the defendants in the written
statement. On a reading of the plaint as a whole it is evident that the plaintiffs- appellants
had filed the suit giving rise to the present appeal treating the defendants as
trespassers as they denied the title of the plaintiffs-appellants. Now a suit against the
trespasser would lie only in the Civil Court and not in the Revenue Court.”
Under such circumstances, I am of the view that the Judgment C.M.A.No.50 of 2007
passed by the learned Additional District and Sessions Judge/Fast Track Court-V,Chennai , is
liable to be set aside.
5. In fine, the civil revision petition is allowed and the judgment made in C.M.A.No.50 of
2007 passed by the learned Additional District and Sessions Judge/Fast Track Court-V, Chennai
is hereby set aside. The trial Court is directed to dispose of O.S.No.1168 of 2003, after
restoring the same on his file, on the basis of the available evidence, on merits, within a period of
one month from the date of receipt of a copy of this order. No costs. Consequently, connected
M.P.No.2 of 2008 is closed.
Petition allowed.
[2008 (1) T.N.C.J. 813 (SC)]
SUPREME COURT
BEFORE:
H.K. SEMA AND MARKANDEY KATJU, JJ.
M.M.T.C. LTD. ...Petitioner
Versus
M/S. H.J. BAKER AND BROTHERS INC ...Respondent
[Civil Appeal No. 1301 of 2002 with C.A.No. 1290 of 2002, decided on 27 February, 2008]
th

Arbitration Act, 1940—Sections 30 and 33—Objection—Against award for making


the same rule of the Court—Rejection of—Appeal against—Disposal of, by short order—
Legality—32 grounds raised in the memo of appeal as to why the award made be not set
aside—None of the grounds raised in the memo of appeal has been considered—Courts
are to consider and answer all the issues raised before it—Not done—Order impugned is
unsustainable in law—Set aside—Appeal restored to the file of High Court with request to
dispose of the same within three months.
(Paras 3, 4 and 6)
JUDGMENT
H.K. SEMA, J.—Heard the parties.
2. We propose to dispose of these appeals by a short order. Therefore, the facts leading to
the filing of these appeals may not be recited.
3. The award was made on 3/2/1996 by three arbitrators. The award was filed before the
learned single Judge for making it the rule of the Court. The appellant filed objections under
Sections 30 and 33 of the Arbitration Act, 1940 (hereinafter ‘the Act’, for short) taking various
grounds. It appears that the learned single Judge by a lengthy judgment rejected the objections
filed by the appellant and by the same order the award was made the rule of the Court. Aggrieved
thereby, the appellant preferred an appeal before the Division Bench.
4. In the appeal memo, the appellant has taken as many as 32 grounds as to why the award
made by the arbitrators be not set aside as the same has been improperly procured or is otherwise
invalid. The learned Division Bench, after hearing the counsel on both the sides, disposed of the
appeal, the relevant portion of which reads as under:—
“We are of the view that the approach adopted by the learned Single Judge while
considering the objections to the award is in consonance with the principles laid down by
Supreme Court. Parties have chosen the forum of their choice. Scope of interference by
the Court is limited one and learned single Judge was perfectly justified in saying that no
ground was made out to interfere with the award.”
5. A reading of the relevant portion of the judgment clearly shows that none of the grounds
raised by the appellant in the appeal memo has been considered. By now, it is well-settled
principles of law that the Courts are to consider and answer all the issues raised before it. This
has not been done in the present case.
6. The order of the Division Bench is, therefore, unsustainable in law. The order dated
21/11/2001 passed in FAO(OS)477/01 is hereby set aside. FAO(OS)477/01 is restored to the file
of the High Court. As the award has been made as far back on 3/2/1996, we request the High
Court to dispose of the appeal within three months from today after considering all the issues
raised in the appeal memo.
7. Appeals are disposed of in the above terms. No costs.
Appeals disposed of.

[2008 (1) T.N.C.J. 814 (Mad) (MB)]


MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE:
G. RAJASURIA, J.
N. MUTHUSWAMY AND OTHERS ...Appellants
Versus
CHANDRA AMMAL ...Respondents
[A.S.No. 250 of 1994, decided on 29 February, 2008]
th

Civil Procedure Code, 1908—Section 96—Suit for partition—Deceased died leaving


plaintiff and defendants as heirs— Plaintiff is daughter of deceased—First defendant is
wife and others are sons—Deceased working in Railways and earning at relevant time—
From sale consideration it could be safely concluded that in all probabilities he could
have purchased those properties—Sons were not working—Deceased purchased
property out of his own source of income and suit property is not co-parcenary property—
Hence, trial Court rightly held plaintiff being a daughter of deceased is obviously entitled to
1/8 share alongwith defendants 2 to 7—Thus, appeal dismissed.
(Paras 11 and 13)
Counsel.—Mr. R. Nandakumar, for the appellants; Mr. M.V. Krishnan, for the respondent
No. 1; No appearance, for the respondents 3 to 5.
JUDGMENT
G. RAJASURIA, J.—This appeal is focussed as against the Judgment and decree
dated 16.09.1993 passed in O.S.No.351 of 1989 on the file of the learned Principal Subordinate
Judge, Dindigul.
2. Heard the Advocates on both sides.
3. The parties are referred to hereunder in the same order as they were arrayed before the
trial Court.
4. Pithily and precisely the case of the plaintiff as stood exposited from the plaint could be
portrayed thus:
The plaintiff viz., Chandra Ammal and the defendants 2 to 7 are the children of the
deceased Nagaiah Thevar and the first defendant, Meenakshi Ammal. The said Nagaiah Thevar
during his lifetime purchased the suit properties from out of his own source of income as he
was working in Railways and also cultivating lease hold lands. He died on 14.10.1987, leaving
behind the plaintiff and the defendants who are class I heirs within the meaning of the Hindu
Succession Act. Since, the plaintiff’s request for amicable partition was not responded to
positively by some of the defendants, the suit was came to be filed for partition and for allotment
of one eighth (1/8) share in the suit properties.
5. Per contra, the third defendant filed the written statement, which was adopted by the
defendant Nos. 2 and D-5; the gist and kernel of it would run thus:
The deceased Nagaiah Thevar was owning ancestral properties and from out of the income
derived from the ancestral properties, he purchased the suit properties. As such, there was
co-parcenary among the deceased Nagaiah Thevar and his sons viz., D-2 to D-5. Consequent
upon the death of the deceased Nagaiah Thevar, his one fifth (1/5) share alone should be divided
among the eight persons viz., the plaintiff and the defendants and accordingly the plaintiff is
entitled to 1/40th share in the suit properties. Accordingly, they prayed for the dismissal of the
suit.
6. The trial Court framed the relevant issues and during trial, the plaintiff examined
himself as P.W.1 and Exs.A-1 to A-3 were marked. On the side of the defendants, the third
defendant examined himself as D.W.1 and Exs.B-1 to B-15 were marked.
7. The trial Court ultimately decreed the suit and passed a preliminary decree declaring
one-eighth (1/8) share of the plaintiff in the suit properties negativing the claim of the contesting
defendants that they existed coparcenary among the deceased Nagaiah Thevar and his sons.
8. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court,
the third defendant filed this appeal on the following main grounds among others:
The judgment and decree of the trial Court is against law and weight of evidence. The trial
Court failed to consider that the deceased Nagaiah Thevar owned ancestral properties and from
out of the income derived from the ancestral properties alone he purchased the suit properties.
The deceased Nagaiah Thevar was getting only Rs.12/- (Rupees twelve only) per month as salary
and hence he might not have had sufficient source of income to purchase the suit properties. Even
though the plaintiff contended that one house was sold by all, but no evidence had been
produced. Accordingly, he prayed for setting aside the Judgment and decree of the trial Court
and for the dismissal of the suit.
9. The points for consideration are (i) whether the suit properties were purchased by the
deceased Nagaiah Thevar from out of the income derived from the ancestral properties? and (ii)
whether there is any infirmity in the Judgment and decree passed by the trial Court?
10. On points:
The learned counsel for the appellant/third defendant by placing reliance on the
memorandum of appeal would develop his arguments to the effect that admittedly the said
Nagaiah Thevar got his share in the ancestral property in the partition effected among himself and
his brothers as revealed by Ex.A-3 and that he purchased the suit properties under Exs.B-4 to
B-7 only from out of the income derived from those ancestral properties, whereas the learned
counsel for the first respondent/plaintiff would torpedo the arguments of the learned counsel for
the appellants/2, 3, 5 defendants on the ground that it is an admitted fact that even on 07.08.1936
and 03.11.1941, those ancestral properties, which he got in the partition effected among the
deceased Nagaiah Thevar and his brothers, were sold. Exs.B-4 to B-7 are dated 17.06.1946,
17.06.1946, 07.07.1953 and 01.09.1962 respectively. It is therefore crystal clear that long after
the sale of those ancestral properties, Nagaiah Thevar purchased those suit properties.
11. The indisputable facts are that Nagaiah Thevar was working in Railways and earning at
the relevant time. Taking into consideration the sale considerations contemplated in Ex.B-4 to B-
7, as Rs.300/-, Rs.300/-, Rs.500/- and Rs.3000/- respectively, it could safely be concluded that in
all probabilities he could have purchased those properties as in those sale deeds the sale
considerations were. Absolutely there is no iota or shred of evidence to show that his sons were
working and earning and contributed for the purchase of the suit properties. Hence, in such a
case, there is considerable force in the contention of the learned counsel for the first respondent/
plaintiff that the suit properties were purchased by Nagaiah Thevar from out of his own source of
income and the trial Court considering all these facts in detail arrived at a factual conclusion that
the suit properties are not coparcenary properties, but only self acquired properties of the
deceased Nagaiah Thevar.
12. The case of the plaintiff is borne by records. To the risk of repetition without being
tautologous, I would highlight that Exs.B4 to B7 would clearly indicate that the properties were
purchased by the deceased Nagaiah Thevar. However, it is the plea of the contesting
defendants as though there was a Hindu coparcenary.
13. Trite, the proposition of law is that the person, who pleads coparcenary should prove
it. But in this case absolutely there is no evidence in that record. In such a case, I could see no
infirmity in the conclusion arrived at by the trial Court, which had the opportunity of hearing the
parties in person and also analysing the documents. The deceased Nagaiah Thevar died only in
the year 1987, when the Hindu Succession Act had already came into vogue. Accordingly, the
plaintiff being the daughter of the deceased Nagaiah Thevar is obviously entitled to one-eighth
(1/8) share along with the defendants 2 to 7. Accordingly, I could see no infirmity in the
Judgment and decree passed by the trial Court, which deserves to be confirmed and there is no
substance in this appeal and the points are answered in favour of the plaintiff and against the
defendants.
14. In the result, the appeal is dismissed by confirming the judgment and decree
dated 16.09.1993 in O.S.No.351 of 1989 on the file of the learned Principal Subordinate Judge,
Dindigul. In the facts and circumstances of this case, there is no order as to costs.
Appeal dismissed.

[2008 (1) T.N.C.J. 818 (Mad) (MB)]


MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE:
G. RAJASURIA, J.
S. BABU ...Appellant/Defendant
Versus
M/S. J.K. INDUSTRIES LTD. ...Respondent/Plaintiff
[A.S. No. 157 of 2007 and M.P. No. 1 of 2007, decided on 28 February, 2008]
th

(A) Evidence Act, 1872—Section 34—Proof of document—Suit for recovery of


amount due—Defendant in reply only stated that he only issued blank cheque by way of
security—Plaintiff in support of his case produced witness who not entered any
information in accounts books—In fact he was appointed subsequently—No person
produced to prove entries—Person who wrote entries could only prove contents which has
not been done in this case—Further certified copy of cheque also not produced in Court—
Hence Court below erred in decreeing suit—Appeal allowed.
(Paras 13 to 20)
(B) Civil Procedure Code, 1908—Order XLI, Rule 23-A— Remand of matter—
Owing to misconception evidentiary value of document plaintiff could not process his claim
—Hence matter can be remanded. (Para 25)
Case law.—1992 (1) LW 262—relied on; AIR 1967 SC 1058; 2001 (2) CPC 736—
referred.
Counsel.—Mr. S.V. Jeyaraman Senior Counsel for Mr. A. Jayaramachandran, for the
appellant; Mr. C. Ramachandran, for the respondent.
JUDGMENT
G. RAJASURIA, J.—This appeal has been filed as against the judgment and decree
dated 16.08.2007 in O.S.No.21 of 2005 on the file of the Additional District and Sessions Judge,
(F.T.C.No.I), Madurai.
2. The parties, for convenience sake, are referred to hereunder according to their litigative
status before the trial Court.
3. The facts in nutshell which are absolutely necessary and germane for the disposal of
this appeal would run thus.
4. The gist and kernel of the case of the plaintiff could be portrayed thus:
There were business transactions between the plaintiff and the defendant. The goods were
supplied at intermediate intervals and payments were also made and regular accounts were
maintained in the course of such business transactions. Subsequently, it so happened that there
was default in payment of dues by the defendant. Thereupon, in acknowledgement of the liability
to the tune of Rs.4,22,056/- (Rupees Four Lakhs Twenty-Two Thousand and Fifty-Six only), the
defendant issued cheque on 23.05.1995. The last entry in the book of account was made on
12.01.1995. Since there was default, the plaintiff filed the suit for recovery of the amount due.
5. Per contra, denying and disputing the allegations/averments, the defendant filed the
refutatory written statement, the nitty-gritty of it would run thus:
The accounts relied on by the plaintiff are not revealing the true state of affairs and the
defendant only issued a blank cheque by way of security. Accordingly, he prayed for the
dismissal of the suit.
6. The trial Court framed the appropriate issues.
7. During trial, P.W.1 was examined and Ex.A.1 was marked on the side of the plaintiff.
Neither oral nor documentary evidence was let in on the side of the defendant.
8. Ultimately, the trial Court decreed the suit.
9. Being aggrieved by and dissatisfied with, the judgment and decree of the trial Court,
this appeal has been filed by the defendant on the grounds inter alia thus:
The trial Court committed error in relying upon Ex.A.1 which is nothing but a copy of the
accounts and as per Section 34 of the Indian Evidence Act, it was inadmissible in evidence.
P.W.1 was not the competent person to speak about such accounts as admittedly he was a
new entrant under the plaintiff’s service. Ignoring the well settled proposition of law based on the
Honourable Apex Court’s judgment, the trial Court decreed the suit.
10. The point for consideration are:
(i) Whether the trial Court was justified in relying upon Ex.A.1, the copy of the
statement of accounts and the deposition of P.W.1 in decreeing the suit?
(ii) Whether there is any infirmity in the judgment and decree of the trial Court?
11. Both the points are taken together for discussion as they are interlinked and interwoven
with each other.
Point Nos:(i) and (ii)
12. The learned senior counsel for the defendant would draw the attention of this Court to
Ex.A.1 and develop his argument to the effect that mere Ex.A.1, the statement of accounts should
not have been taken for gospel truth by the trial Court for rendering its judgment. There should
have been independent evidence in support of Ex.A.1. By way of fortifying and buttressing his
plea, he cited the following decisions:
(i) Chandradhar v. Gauhati Bank reported in AIR 1967 SC 1058. An excerpt from it,
would run thus:
“6. ... No person can be charged with liability merely on the basis of entries in
books of account, even where such books of account are kept in the regular
course of business. There has to be further evidence to prove payment of the
money which may appear in the books of account in order that a person may be
charged with liability thereunder, except where the person to be charged accepts
the correctness of the books of account and does not challenge them. The original
entries alone under Section 34 of the Evidence Act would not be sufficient to
charge any person with liability and as such copies produced under Section 4
of the Bankers’ Books Evidence Act obviously cannot charge any person with
liability.”
(ii) Deluxe Road Lines v. S.K.Palani Chetty reported in 1992 (1) LW 262. An excerpt
from it, would run thus:
“9. Significantly, the person who wrote the accounts has not been examined. The
person who is said to have made the payments mentioned in the accounts has not
been examined. It is only the Manager, who had nothing to do with either
the payment or the writing of the accounts, who has been examined. There is no
explanation for not examining the others. It is a well settled proposition of law
that mere production of accounts will not be sufficient to charge any person with
any liability. The requirements of Section 34 of the Evidence Act will not be
satisfied by the production of accounts simplicitur. In Chandi Ram Deka v.
Jamini Kanta Deka, AIR 1952 Assam 92, it has been held that where the books
produced are merely the ledger not supported by any book or containing no
entries of transactions as they took place, the books do not fulfil the
requirements of Section 34 of the Evidence Act. In Chandradhar Goswami and
others v. Gauhati Bank Ltd., AIR 1967 SC 1058, it is held that no person can be
charged with liability merely on the basis of entries in books of account, even
where such books of account are kept in the regular course of business and there
has to be further evidence to prove payment of the money which may
appear in the books of account in order that a person may be charged with
liability thereunder, except where the person to be charged accepts the
correctness of the books of account and does not challenge them. In
V.K.Abraham v. N.K.Abraham, 1990 LW 686 : AIR 1978 Mad 56, a
Division Bench of this Court has, after referring to all the authorities on the
subject, held that the accounts books by themselves are not sufficient to charge
any person with liability and the party has to show by some independent
evidence that the entries in his books represented real and honest transactions and
that the moneys paid or the transactions took place, in accordance with
those entries. In Zonna Sorabji and others v. Mirbella Hotel Co. (Pvt) Ltd., and
others, AIR 1981 Bom 446, the Bombay High Court held that in order that a
document could be relied upon as a book of accounts, it must have the
characteristic of being fool-proof, and the ledger by itself could not be a book of
account of the character contemplated by Section 34 of the Evidence Act. The
learned Judge held that the corresponding journal or Rojmal or day-book should
be produced in order to place reliance on the ledger.”
(iii) Mettur Beardsell Limited v. Salem Textiles Limited reported in 2001 (2) CTC 736.
13. The perusal of the aforesaid three decisions would leave no doubt in the mind of the
Court that even if the original account books are produced, it would not constitute reliable
evidence within the meaning of Section 34 of the Indian Evidence Act. In support of the
statement of accounts, there should be some evidence to prove that the entries are reflecting the
genuineness and honesty of the transactions concerned.
14. Whereas the learned counsel for the plaintiff would strenuously canvass the case of the
plaintiff by drawing the attention of this Court to paragraph No.7 of the written statement which
is to the effect that the cheque was issued by the defendant in recognition and by way of
acknowledging his liability as set out in the plaint and that over and above that no more evidence
is contemplated.
15. The learned senior counsel for the defendant would draw the attention of this Court to
the deposition of P.W.1 who would candidly without any reservation, depose that he entered the
service of the plaintiff only three years anterior to the date of his deposition before the
Court, whereas the suit transactions are anterior to three years. In other words, he had no
personal knowledge about those entries of account.
16. In such a case, I am of the considered opinion that the decision of this Court in Deluxe
Road Lines v. S.K.Palani Chetty reported in 1992 (1) LW 262, is squarely applicable in the facts
and circumstances of this case. In fact, in the said decision, this Court specifically contemplated
this contingency which is involved in this case. A person who wrote the entries or a person who
have knowledge of them, should appear and depose before the Court. Then only, it could be
held to have been proved. But, in this case, it was not done so.
17. Coming to the question of alleged admission in paragraph No.7 of the written
statement, I would like to point out that the admission as per the Indian Evidence Act as
contemplated under various sections thereof, must be clear and categorical one.
18. Here, the averments in paragraph No.7 of the written statement can only be
taken as an admission that the defendant issued a blank cheque. Whether that much piece of
evidence would prove the entries as found set out in Ex.A.1. The answer is at once an emphatic
‘no’.
19. The learned senior counsel for the defendant would submit that not even a certified
copy of the cheque was produced before the trial Court and based on that, evidence should have
been adduced that it was issued only on a particular day for a particular sum of money.
20. Hence, considering all these facts, I am of the firm view that the plaintiff owing to
some misconception of evidentiary value of Ex.A.1, the plaintiff refrained from adducing further
evidence. As such, one more opportunity could be given to the plaintiff to prove his case. It is
not the case of filling up the lacuna, but it is a case where there is misconception on the part of
the plaintiff about Ex.A.1.
21. Adhering to the ratio decidendi of the decisions cited supra, the plaintiff will have to
adduce proper additional evidence.
22. The learned counsel for the plaintiff submitted his argument that in the absence of
defendant’s evidence so to say, in view of the defendant having not got himself examined as a
witness, adverse inference could be drawn.
23. I am of the view that since the burden did not get shifted on the defendant, the non-
examination of the defendant cannot be taken as a significant flaw on his part.
24. In view of my discussions supra, at present I need not decide on the limitation point.
On proving such entries, the question of analysing and adjudicating the issue of limitation would
arise.
25. I am fully aware of the fact that Order XLI, Rule 23-A of the Code of Civil Procedure
contemplates that there should not be any unnecessary remand of the matter, but here, the
remand is necessitated, because owing to misconception of the evidentiary value of Ex.A.1, the
plaintiff could not process his claim. Hence, one more opportunity should be given to the
plaintiff.
26. Accordingly, both the points are decided.
27. In the result, this appeal is allowed, setting aside the judgment and decree of the trial
Court and the matter is remitted back to the trial Court for taking additional evidence and the
learned trial Judge shall dispose of the matter in accordance with law untrammelled and
uninfluenced by the observations made by this Court while disposing of this matter.
Consequently, connected miscellaneous petition is closed. No costs.
Appeal allowed.

[2008 (1) T.N.C.J. 823 (Mad) (MB)]


MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE:
G. RAJASURIA, J.
S.M. VENKATESH ...Appellant
Versus
THE SPECIAL DEPUTY COLLECTOR
(STAMPS) AND OTHERS ...Respondents
[C.M.A. (MD) No. 109 of 2008 and M.P. (MD) No.1 of 2008, decided on 21 February, 2008]
st

Appeal—Delay in filing—Condonation of—Deficiency in stamp duty—Appeal filed


against order—Appellate Court expected separate application for condoning delay—
Legality of—Held, appellate authority had inherent power to condone delay without
specific petition—Yet appellant directed to file separate petition alongwith necessary
documents—Appeal allowed.
(Paras 6 and 7)
Counsel.—Mr. A. Sivaji, for the appellant; Mr. So. Paramasivam, Government Advocate
(CS), for the respondents.
JUDGMENT
G. RAJASURIA, J.—This appeal is focussed as against the order of the third respondent
dated 12.10.2007, passed in Proceedings No. MU. MU. No. 45394/N4/07.
2. Heard both sides. At the time of admission, both sides agreed to argue the matter on
merits. Accordingly, the matter is taken up for disposal.
3. A re’sume’ of facts absolutely necessary and germane for the disposal of this civil
miscellaneous petition would run thus:
The appellant herein filed a petition dated 06.09.2007, praying the Inspector General of
Registration to condone the delay in filing the appeal and to entertain the appeal, which was
filed as against the order dated 28.03.2007 directing him to pay additional stamp duty. The
appellate authority in the cryptic order dated 12.10.2007, dismissed the appeal and an excerpt
from the order is extracted hereunder:
“2. tpjp 9(3)(b)d;go Mtz efy; nizf;fg;gltpy;iy.
3. Bky;KiwaPl;L kDt[ld; gjpt[j;Jiwj;jiyth;foj vz;.49233/vz;3/2006,
ehs;.18.05.2007d;go, fhy jhkjj;jpw;fhd fhuz]A;fs; kw;Wk; MjhuA;fs; kDt[ld;
nizf;fg;gltpy;iy.”
4. Being aggrieved by and dissatisfied with the said order, this civil miscellaneous petition
is focussed on the main ground that the appellate authority was not justified in dismissing the
appeal in such a manner as stated supra without considering the records already enclosed along
with the appeal and that his expectation for separate application for condone the delay is not
tenable.
5. The point for consideration is as to whether there is any infirmity in the order
passed by the third respondent in Proceedings No.MU. MU.No. 45394/N4/07, dated 12.10.2007?
6. Point: The perusal of the records and the hearing the arguments would clearly highlight
that the appellate authority did not state that it had no powers to condone the delay and what the
appellate authority highlighted was to the effect that necessary documents were not enclosed and
separate petition stating the reasons for condoning the delay was not filed. There is some force in
the submission made by the learned counsel for the petitioner, that even though there is no
specific provision to get the delay condoned, the appellate authority had inherent power to
condone the delay in matters of this nature, without a specific petition nonetheless there will be
no harm in filing separate application as expected by the appellate authority. Hence, I am of
the considered opinion that filing of a separate petition for getting the delay condoned
enclosing necessary documents as expected by the appellate authority would not in any way
prejudice the petitioner.
7. Hence, this civil miscellaneous appeal is disposed of with the following direction:
The petitioner is given an opportunity to file necessary application to get the delay
condoned by enclosing necessary documents within one months from the date of receipt of a
copy of this order taking the earlier date of appeal as cut-off date to compute the number of days
delay in filing appeal and thereupon the appellate authority shall consider it on merits as
expeditiously as possible. Consequently, connected M.P.(MD) No.1 of 2008 is closed. No costs.
Appeal disposed of.

[2008 (1) T.N.C.J. 825 (Mad) (MB)]


MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE:
G. RAJASURIA, J.
PADMAVATHY AND OTHERS ...Appellants
Versus
NARASIMMAN AND OTHERS ...Respondents
[C.M.A. (MD) No. 866 of 2007 and MP (MD) Nos. 1 and 2 of 2007, decided on 26 th February,
2008]
Motor Vehicle Act, 1988—Section 166—Compensation— Determination of—Death
of deceased in accident—Deceased aged about 48 years—Deceased working as Manager in
Hotel and earning Rs. 3000/- p.m.—Pay slip produced and owner himself deposed in
Court that deceased was earning Rs. 3,000/-—After deduction of 1/3 and multiplier of 13
chosen and compensation determined at Rs. 3,12,000/-—Loss of love, transport expenses,
funeral expenses also added to compensation—Order of Tribunal modified—Appeal partly
allowed. (Paras 8, 9, 14 and 15)
Case law.—2004 (1) LW 1; 2004 (1) TN MAC 337.
Counsel.—Mr. U. Minnavadi, for the appellants; Mr. A.S. Mathiyalagan, for the
respondent 2; no appearance for the respondent 1.
JUDGMENT
G. RAJASURIA, J.—This appeal is focussed as against the judgment and decree dated
29.01.2007 passed in M.C.O.P.No.86 of 2006 by the learned Motor Accidents Claims Tribunal-
cum-the Chief Judicial Magistrate, Thoothukudi.
2. Heard the learned counsel appearing for the appellants as well as the learned counsel for
the second respondent and notice to R1 is dispensed with as he remained ex-parte before the
Tribunal.
3. The Tribunal vide Judgment dated 29.01.2007 awarded compensation to a tune of
Rs.1,80,500/- (Rupees one lakh eighty thousand and five hundred only) under the following sub-
heads:
For death of the deceased
(loss of dependency) -Rs.1,56,000/-
For funeral expenses -Rs. 2,000/-
For loss of consortium -Rs. 5,000/-
For loss of love and
affection -Rs. 10,000/-
For loss of estate -Rs. 2,500/-
For transport of dead body -Rs. 5,000/-
Total -Rs.1,80,500/-
4. The challenge in this appeal is relating to the inadequacy of compensation awarded by
the Tribunal. The grievance of the appellants/claimants as found set out in the memorandum of
appeal is that despite the fact that the deceased died at the age of 48, working as manager in a
hotel, earning a sum of Rs. 3,000/- (Rupees three thousand only), for which necessary pay
certificate also filed, which remains unchallenged and unimpugned, the Tribunal fell into error in
simply taking the monthly income of the deceased as Rs. 1,500/- (Rupees one thousand and five
hundred only), which by any standard cannot be countenanced as correct or appropriate; under
other sub heads also, the Tribunal awarded only meagre amounts, which warrants interference of
this Court.
5. The point for consideration is as to whether the Tribunal awarded ‘just compensation’?
6. On point:
The learned counsel for the appellants/ claimants would convincingly and correctly
highlight the fact that before the Tribunal Ex.P-9, the pay certificate was marked and in order to
prove it, the owner of the hotel concerned viz., the employer of the deceased also deposed as
P.W.2; but ignoring all these clinching facts, the Tribunal simply of its own accord without any
basis arrived at the conclusion that the deceased was earning only a sum of Rs.1500/- (Rupees
one thousand and five hundred only) per month, whereas the learned counsel for the second
respondent/Insurance Company would try to torpedo the arguments of the learned counsel for the
appellants/claimants by pointing out that there was no clinching evidence to show that the
deceased was actually earning a sum of Rs.3000/- (Rupees three thousand only) and he was also
taking free meals under his employer.
7. Be that as it may, even assuming that there is no clinching evidence to the satisfaction
of the respondent/Insurance Company, yet the following decisions of the Hon’ble Apex Court as
well as this Court would come to the rescue of the appellants/ claimants:
(i) State of Haryana and another v. Jasbir Kaur and others reported in 2004 (1) LW
1.
(ii) Tamil Nadu State Road Transport Corporation Limited v. Mayilathal and others,
reported in 2004 (1) TN MAC 337.
8. It is therefore clear that during the year 2002, the deceased, a healthy man of 48 years
old, might have certainly worked and earned not less than Rs. 3,000/- (Rupees three thousand
only) per month, at the rate of Rs.100/- (Rupees hundred only) per day. Taking into account the
cost of living prevailing during the year 2003, without earning a sum of Rs.100/- (Rupees one
hundred only) per day, the deceased could not have maintained his wife, two children and his
parents. Hence, the Tribunal fell into error in choosing the monthly income of the deceased in a
sum of Rs.1,500/- (Rupees one thousand and five hundred only). I am having no hesitation to
hold that the deceased, at the relevant time of the accident, was earning a sum of Rs. 3,000/-
(Rupees three thousand only) per month and accordingly the calculation has to be computed. It is
a trite proposition of law that 1/3 of the income should be deducted towards the expenditure
which the deceased would have incurred for maintaining himself had he been alive irrespective of
the fact whether the deceased lead the life of a Bohemian or that of a Spartan.
9. The learned counsel for the appellants/ claimants would have no grievance relating to
the multiplier 13 chosen by the Tribunal. The deceased at the relevant time of his death was 48
years old. Taking a cue from the Second Schedule appended to the Motor Vehicles Act, the
multiplier 13 chosen is correct. I am fully aware of the fact that in all cases the multiplier as
found suggested in the Second Schedule appended to the Motor Vehicles Act cannot be taken as
conclusive. But in this case, I am of the considered opinion that the multiplier 13 is the
appropriate one because the widow, the unmarried daughter and the young son are the claimants
along with the parents of the deceased. As such unless multiplier 13 is chosen significant
compensation cannot be computed, which would be of some succour to the claimants. Hence, the
compensation under the head ‘loss of income’ shall be re-fixed at Rs.3,12,000/- [3000 X 12 X 13
X 2/3 =3,12,000/-] (Rupees three lakhs and twelve thousand only).
10. The learned counsel for the appellants/ claimants would also convincingly submit that
for loss of consortium only a sum of Rs.5000/- was awarded, which in my opinion is meagre and
at least a sum of Rs.15,000/- (Rupees fifteen thousand only) could be awarded under that caption.
11. Towards loss of love and affection, the Tribunal awarded totally a sum of
Rs.10,000/- (Rupees ten thousand only), even though as many as four other claimants are there.
For 2, 3-claimants a sum of Rs.10,000/- (Rupees ten thousand only) each could be awarded and
relating to the parents a sum of Rs.5000/- (Rupees five thousand only) each could be awarded.
As such under the caption loss of love and affection totally a sum of Rs.30,000/- (Rupees
thirty thousand only) could be awarded.
12. Towards transport expenses, a sum of Rs.5,000/- (Rupees five thousand only) was
awarded, which in my opinion, could be confirmed, as there is no evidence to prove that over and
above much amount, the claimants might have been incurred expenditure for transporting the
dead body from Bavani to the place of the deceased.
13. Towards funeral expenses, only a sum of Rs.2,000/- (Rupees two thousand only) was
awarded, which could be enhanced to Rs.5,000/- (Rupees five thousand only) as during the
year 2002, certainly that much amount would be required for performing the funeral ceremonies.
14. Towards loss of estate, the Tribunal awarded a sum of Rs.2,500/- (Rupees two
thousand and five hundred only), which in my opinion has to be deleted as there is no evidence to
prove the same. Accordingly, the compensation is modified as under:
For death of the deceased
(loss of dependency) -Rs.3,12,000/-
For funeral expenses -Rs. 5,000/-
For loss of consortium -Rs. 15,000/-
For loss of love and
affection -Rs. 30,000/-
For transport of dead body -Rs. 5,000/-
Total -Rs.3,67,000/- 15. In
the result, this civil miscellaneous appeal is partly allowed and the award of the Tribunal is
enhanced from Rs.1,80,500/- (Rupees one lakh eighty thousand and five hundred only) to
Rs.3,67,000/- (Rupees three lakhs and sixty-seven thousand only), which shall carry interest at
the rate of 7.5% as directed by the Tribunal from the date of M.C.O.P. till deposit.
Proportionately there will be variation in the allotments in favour of each of the claimants
depending upon the variation in the total compensation awarded herein. No costs.
Consequently, connected miscellaneous petitions are closed.
Appeal partly allowed.

[2008 (1) T.N.C.J. 829 (Mad) (MB)]


MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE:
G. RAJASURIA, J.
C. ARUMUGAM ...Appellant/Plaintiff
Versus
C. AYYAVU ...Respondent/Defendant
[S.A. No. 813 of 2003, decided on 22 February, 2008]
nd

Civil Procedure Code, 1908—Section 100—Second appeal—Suit for permanent


injunction—Suit deceased by Trial Court and affirmed by first appellate Court—Hence this
appeal—Held, it is not representative suit filed by villagers claiming right over pathway
—But brothers are parties here who locked themselves in litigation—No explanation from
defendant’s side justifying such encroachment into plaintiff’s property, hence whatever
construction situated in that area should be removed—Both Courts below fell into error in
not ordering for removal of such encroachment—Ordered to remove encroachment—
Order upheld with this modification—Appeal dismissed. (Paras 27 to 31)
Counsel.—Mr. V. Ramakrishnan, for the appellant; Mr. N.R. Murugesan, for the
respondent.
JUDGMENT
G. RAJASURIA, J.—This second appeal is focussed as against the judgment and decree
dated 20.10.1999 passed in A.S.No.204 of 1999 by the learned I Additional District Judge-cum-
Chief Judicial Magistrate, Thiruchirappalli, in confirming the judgment and decree dated
30.06.1999 passed in O.S.No.1092 of 1989 by the learned II Additional District Munsif,
Thiruchirappalli.
2. Broadly but briefly, narratively but precisely, the case of the plaintiff as stood exposited
from the records could be portrayed thus:
(i) The plaintiff and the defendant are the brothers. Their father namely Chinnaia
Moopan as per Ex.A.6 sale-deed dated 15.07.1928, purchased the property measuring
an extent of 21 European ft from south to north and 36 European feet from east to
west direction. Subsequently, he mortgaged that property as revealed by Ex.A.7,
the mortgage deed dated 25.04.1929, by specifying the same measurements.
(ii) The said Chinnaian’s sister had one other property nearby the aforesaid property
measuring similar extent. According to the plaintiff, there was a pathway of about 10
feet in between the plaintiff’s father’s property and his sister’s property and that
pathway has been used as a public pathway. The said Chinnaian’s sister executed a
settlement deed in favour of the defendant who in turn as per Ex.A.1, dated
06.06.1985, sold the property in favour of the plaintiff. The said pathway between
the aforesaid two properties was attempted to be encroached by the defendant on
15.05.1989. Hence, the suit for permanent injunction so as to restrain the defendant
from encroaching the pathway and also the plaintiff’s property.
3. Per contra, denying and disputing, the allegations/averments, the defendant filed the
refutatory written statement with the averments inter alia thus:
The plaintiff executed as per Ex.B.1, dated 06.06.1985 the release deed in respect of the
aforesaid Chinnaian’s property in favour of the defendant after receiving a sum of Rs.10,000/-
from him. In that sale deed, the extent of the property was mentioned as 31 1/4 feet from north to
south direction and there is no pathway found specified as the one existing between the erstwhile
areas belonged to his father and his sister. Without any manner of right, the plaintiff was
objecting to the defendant’s enjoyment of the property as envisaged in Ex.B.1.
Accordingly, he prayed for the dismissal of the suit.
4. The trial Court framed the relevant issues.
5. During trial, P.W.1 to P.W.3 were examined and Exs.A.1 to A.7 were marked on the
side of the plaintiff. D.W.1 was examined and Exs.B.1 to B.3 were marked on the side of the
defendant. Exs.C.1 to C.6 were marked as Court documents.
6. Ultimately, the trial Court while dismissing the claim of the plaintiff over the alleged
suit pathway and also rejecting the contention of the plaintiff that there was a pathway in between
the two properties, granted injunction as against the defendant so as to restrain him from
interfering with the plaintiff’s property only.
7. Challenging the judgment and the decree of the trial Court, the appeal in A.S.No.204 of
1999 was filed before the I Additional District Judge-cum-Chief Judicial Magistrate,
Thiruchirappalli, which Court confirmed the same.
8. Being aggrieved by and dissatisfied with, the judgments and decrees of both the Courts
below, the plaintiff has preferred this second appeal on the following main grounds among others:
Exs.A.6 and A.7, the ancient documents clearly and categorically envisaged an extent of
only 21 European feet which belonged to Chinnaian the father of the plaintiff and the defendant
and to the north of that property, a pathway (vazhi nadai pathai) was contemplated therein. While
executing Ex.B.1, the plaintiff was not informed of the measurement being 31 1/4 feet from
south to north direction specified in it. The Commissioner’s report and sketches are erroneous and
they failed to consider the existing lane which is on ground. Even though the Commissioner
gave a finding that there exists a lane physically on ground, nonetheless both the Courts
below neglected it and rejected the contention of the plaintiff. Accordingly, he prayed for setting
aside the judgments and decrees of both the Courts below and for decreeing the original suit
in toto.
9. At the time of admitting this second appeal, my learned predecessor framed the
following substantial question of law:
“Whether the judgments and decrees of the Courts below are sustainable in law, as the
entire evidence which is relevant to decide the issue and the relevant provision of law
applicable to the facts of the case were not taken into consideration?”
10. Heard both sides.
11. A re’sume’ of facts absolutely necessary and germane for the disposal of this second
appeal could be portrayed in a nutshell as under:
The plaintiff’s contention is mainly based on Exs.A.6 and A.7 which are ancient
documents obviously contemplating a pathway to the north of the said Chinnaian’s property. The
plaintiff would contend that the ‘vazhi nadai pathai’ so to say the pathway as contemplated under
Exs.A.6 and A.7 should be restored ignoring the subsequent developments which allegedly took
place by bringing about Ex.B.1.
12. Whereas the defendant’s contention is that as revealed by Ex.B.1, dated 06.06.1985,
the plaintiff himself, an educated man working in Railways relinquished his share in the said
Chinnaian’s property in favour of the defendant after receiving a sum of Rs.10,000/- (Rupees Ten
Thousand only) and in that deed, south to north direction was mentioned as 31 1/4 feet from
south to north direction which obviously includes the alleged pathway even though there is no
pathway.
13. When the matter was pending before the trial Court, one and the same Commissioner
was directed to visit twice the suit properties and submit report. To say the least, it is surprising to
note that on both the occasions, the learned Commissioner fell into error in specifying the
directions and that contributed a lot for creating obfuscations. The trial Court could have very
well resorted to the well recognised practice in rectifying such mistakes, but it failed to do so.
14. Be that as it may, now then, the learned counsel appearing on both sides, in all fairness
would submit that the directions have been interchanged by the Commissioner and however, this
Court could understand the physical features after hearing the enlightened arguments on both
sides.
15. The plaintiff’s property is situated to the north of the defendant’s property. It is the
grievance of the plaintiff that the defendant encroached into the alleged lane contemplated in
Exs.A.6 and A.7 and over and above that, he also encroached some portion in the plaintiff’s
exclusive property.
16. The main thrust of the arguments on the plaintiff’s side is that Ex.B.1 is not a reliable
document and that both the Courts below have not appreciated the facts properly and that too,
they ignored the description as found in Exs.A.6 and A.7 in addition to belittling the Revenue
Divisional Officer’s report which reveals that he intervened and cleared and restored the pathway.
17. The perusal of the revenue record namely Ex.C.4, the extract of the Town Survey Field
Register and Ex.C.3, the Survey sketch, would clearly demonstrate that as per the revenue
documents, no pathway much less a public pathway is recognised to be in existence.
18. The core question arises as to what about the description as found set out in the
ancient documents Exs.A.6 and A.7 relating to vazhi nadai pathai.
19. No doubt, due importance has to be attached to such description in ancient documents,
Exs.A.6 and A.7. While holding so, one should not forget the fact that there is no presumption
that the said pathway continued to be in existence ever since 1920 till 1980’s.
20. Here, there is no representative suit filed by the villagers claiming right over the
pathway. But, the brothers are the parties here who locked themselves in litigation. The plaintiff
would assert that there is a public pathway or at least a pathway in between the said two
properties whereas, the defendant would refute and deny the existence of such pathway at all.
21. The onus of proof is on the plaintiff to confute the contention of the defendant and
positively prove that there is such a pathway which continued to exist unabated ever since 1926.
By way of giving a death knell to the plaintiff’s contention, Ex.B.1 emerged into the picture. In
fact, both the plaintiff and the defendant were parties to it and that alone cuts at the very root of
the plaintiff’s case.
22. The learned counsel for the plaintiff would contend that even though the plaintiff is a
Railway servant, nonetheless having faith in his brother without reading the description of the
property simply signed Ex.B.1 and only belatedly he came to know that the defendant schemingly
and clandestinely without the knowledge of the plaintiff, specified the measurement as 31 1/4 feet
from north to south in Ex.B.1.
23. The learned counsel for the plaintiff would further develop his argument by pointing
out as has been already envisaged supra that the defendant sold the property which he got from
his aunt in favour of the plaintiff on the same day of emergence of Ex.B.1 and as such, the
plaintiff had no occasion to meticulously scrutinize the description as found set out in Ex.B.1.
24. No doubt, such an argument could be countenanced, if an illiterate or a
pardhanisian woman, or persons suffering from any disability was made to sign a deed. It is
a well known jurisprudential principle that the law should be jealous in safeguarding the interest
of certain persons having some disabilities. Whereas the plaintiff herein is an educated person and
the transactions were relating to the said two properties and the defendant executed the sale deed
as per Ex.A.1 in respect of one property in favour of the plaintiff and the plaintiff
relinquished his right in another property in Ex.B.1 in favour of the defendant. In such case, I
am at a loss to understand as to how the plaintiff could contend that he was not conscious enough
in reading the description of property in Ex.B.1. There is also nothing to indicate that he took
steps to correct Ex.B.1. As such, he filed the suit as though there is a pathway in existence and in
support of it, he barely relied on Exs.A.6 and A.7.
25. To the risk of repetition, without being tautologous, I would like to record here that but
for Ex.B.1, the plaintiff would have a good case. But, by virtue of Ex.B.1, he got his own death
warrant of his case signed by him and so, there is no point in contending that Ex.B.1 has to be
ignored and that this Court should rely only on Exs.A.6 and A.7.
26. The learned counsel for the plaintiff would convincingly and correctly highlight the
fact that even as per the Commissioner’s reports and sketches, it is clear that over and above the
pathway, the defendant also encroached into the plaintiff’s property. He would elaborate by
pointing out that the defendant is entitled to an extent of 25 feet from south to north direction and
the lane is measuring 2 feet and 1 inch as per the Commissioner’s report and the bathroom is
measuring 6 feet; putting all these measurements together, the total south to north direction
comes to 33 feet 1 inch’ whereas as per Ex.B.1, the north to south direction was only 31 1/4 feet
and as such, there is encroachment by the defendant in the plaintiff’s property.
27. I am of the considered opinion that absolutely there could be no explanation from the
defendant’s side justifying such encroachment into the plaintiff’s property to the extent of 1 feet
10 inches and whatever construction situated in that area should be removed by him. Both
the Courts below fell into error in not ordering for removal of such encroachment.
28. The learned counsel for the plaintiff would also submit that despite injunction the
defendant is attempting to prevent the plaintiff from raising construction in his own plot which he
got as per Ex.A.1.
29. Hence, in this view of the matter, I would like to make it clear that the defendant is
having no right over the area covered under Ex.A.1 and both the Courts below correctly
restrained the defendant from interfering with it.
30. Hence, except the aforesaid modification, I could see no other infirmity in the
judgment and decree of both the Courts below and the substantial question of law is answered
that except to the aforesaid extent, both the Courts below correctly dealt with the matter after
scanning the entire evidence.
31. In the result, the second appeal is partly allowed and the judgments and decrees of
both the Courts below shall stand modified thus:
The defendant is hereby ordered to remove the construction put up by him to an extent of 1
feet 10 inches in the plaintiff’s property as observed supra. The defendant is restrained from
interfering with the plaintiff’s property as in Ex.A.1. However, in the facts and circumstances of
the case, the parties are directed to bear their respective costs.
Appeal partly allowed.
[2008 (1) T.N.C.J. 835 (Mad) (MB)]
MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE:
G. RAJASURIA, J.
TAMILNADU STATE TRANSPORT CORPORATION ...Appellant
Versus
ISAKKIAMMAL AND OTHERS ...Respondents
[C.M.A. No. 269 of 2000, decided on 19 February, 2008]
th

Motor Vehicles Act, 1988—Section 166—Compensation— Determination of liability


—Head on collision—Tribunal however recorded that appellant’s bus caused damage to
lorry from behind and fixed responsibility on appellant—Claimant withdrew 50%
amount—From material on record it is clear that it is head on collision, hence insurance
company is directed to deposit 50% of the compensation—Appeal disposed of.
(Paras 10 and 11)
Counsel.—Mr. Rajnish Pathiyil, for the appellant; Mr.T.S.R. Venkataramana, for the
respondents 1 to 6; No appearance for the respondent 7; Mr. B. Vijay Karthikeyan, for Mr.
S. Manohar, for the respondent 8.
JUDGMENT
G. RAJASURIA, J.—This appeal is focussed as against the judgment and decree dated
13.08.1999 passed in M.C.O.P.No.143 of 1994 by the learned Motor Accidents Claims Tribunal-
cum-the Principal Subordinate Judge, Tenkasi.
2. Heard the learned counsel appearing for the appellant, the learned counsel appearing for
the respondent Nos.1 to 6 and the learned counsel appearing for the respondent No.8. Despite
printing the name of R7, he has not entered appearance.
3. The Tribunal vide judgment dated 13.08.1999 awarded compensation to a tune of
Rs.90,000/- (Rupees ninety thousand only) under the following sub-heads:
For loss of income -Rs.60,000/-
For pain and disability -Rs.30,000/-
Total -Rs.90,000/-

4. The gist and kernel of the contention of the appellant/Tamil Nadu State Transport
Corporation as stood exposited from the memorandum of appeal could be set out thus:
The Tribunal fixed the entire responsibility on the driver of the appellant/Tamil Nadu State
Transport Corporation bus, even though on the middle of the Tirunelveli-Tenkasi road the
accident occurred due to the collision of two vehicles viz., the vehicle belonging to the
appellant/Tamil Nadu State Transport Corporation and the lorry belonging to R7. The contention
of the appellant/Tamil Nadu State Transport Corporation is that but for the rash and negligent
driving of the driver of the lorry, the accident would not have happened.
5. The point for consideration is as to whether the drivers of both the vehicles contributed
for the accident or it occurred due to the rash and negligent driving of anyone of the drivers only?
6. On point:
Heard the learned counsel appearing for the appellant as well as the learned counsel
appearing for the respondent Nos.1 to 6/claimants.
7. The learned counsel for the appellant/Tamil Nadu State Transport Corporation by
drawing the attention of this Court to the First Information Report, the rough sketch and the
relevant portion of the judgment of the Tribunal would develop his arguments to the effect that
the Tribunal fell into error in understanding as though the lorry was proceeding in front of the bus
and that the bus dashed the lorry from behind and accordingly in assessing 100% responsibility
on the driver of the appellant/Tamil Nadu State Transport Corporation, even though the fact
remains that the bus was proceeding from east to west and the lorry was proceeding from west to
east in the same road.
8. As such according to the learned counsel for the appellant/Tamil Nadu State Transport
Corporation, this is a case of head on collision even though damage to the lorry was at its rear
portion and the damage to the bus was on its right portion.
9. The learned counsel for the respondent Nos.1 to 6/claimants is having no much say in
the matter in view of the fact that the appellant/Tamil Nadu State Transport Corporation is not
questioning the quantum of compensation awarded by the Tribunal.
10. Ex.P-1 the copy of the First Information Report and Ex.P-5 the copy of the rough
sketch would clearly demonstrate that the accident had occurred only in the way that the learned
counsel for the appellant/ Tamil Nadu State Transport Corporation detailed and delineated supra.
The Tribunal at paragraph No.8 of its judgment misunderstood as though the lorry was
proceeding in front of the bus and at that time alone owing to the rash and negligent driving of the
bus driver, the accident occurred by hitting the lorry from behind. I am of the considered opinion
that the Tribunal simply assumed as though the driver of the bus was at fault because of the
damage was caused to the rear portion of the lorry. In fact, it so happened that the lorry and the
bus were proceeding in opposite directions; and that the accident occurred in the middle of the
said highway. Now it has become the run of the mill proposition that each of the drivers in
such circumstances should be fixed with the responsibility at the rate of 50% and accordingly the
liability of the Tamil Nadu State Transport Corporation on the one side and the owner of the lorry
along with the insurer of the lorry should bear the responsibility.
11. The learned counsel for the appellant/ Tamil Nadu State Transport Corporation
made an extempore submission that the entire award amount was deposited before the Tribunal
and out of that 50% was already withdrawn by the claimants. In such a case, I am of the
considered opinion that the Tamil Nadu State Transport Corporation is entitled to withdraw the
remaining 50% of the award amount, however the eighth respondent Insurance Company is
directed to deposit relating to its liability, 50% of the award amount with necessary accrued
interest within a period of two months.
12. With the above observations, this civil miscellaneous appeal is disposed of. No costs.
Appeal disposed of.

[2008 (1) T.N.C.J. 837 (Mad) (MB)]


MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE:
G. RAJASURIA, J.
M. MUTHIAH ...Appellant
Versus
MASILAMANI AND OTHERS ...Respondents
[S.A.No. 149 of 2000 and M.P. No. 1 of 2007, decided on 19 February, 2008]
th

Civil Procedure Code, 1908—Section 100—Second appeal—Appellant filed suit that


school belongs to villagers and it should be administered by Sabai—Suit decreed by Trial
Court—Finding reversed by first Appellate Court—Hence, this appeal—Both sides agreed
that in interest of education school be given to Government—Hence Government directed
to take over administration of school and manage it. (Paras 15 to 18 and
23)
Counsel.—Mr. A. Sankarasubramanian, for the appellant; Mr. S. Meenkashi Sundaram,
for the respondent.
JUDGMENT
G. RAJASURIA, J.—This second appeal is focussed as against the judgment and decree
dated in 23.07.1999 passed in A.S.No.111 of 1997 by the learned Principal Sub Judge, Tenkasi,
in setting aside the judgment and decree dated 03.12.1997 passed in O.S.No.472 of 1990 by the
learned District Munsif, Sankarankoil.
2. The parties, for convenience sake, are referred to hereunder according to their
litigative status before the trial Court.
3. Broadly but briefly, narratively but precisely, the case of the plaintiff as stood exposited
from the records could be portrayed thus:
(i) One Muthiah for himself and on behalf of the villagers of Perumbathur, filed the
representative suit figuring himself in three capacities viz., President, Secretary and
Manager of Perumbathur Vivekananda Vidyasalai Nirvaha Sabai, Perumbathur
Village, Sankarankoil Taluk, Tirunelveli District. The Public school with the
building and properties attached to it as described in the schedule of the plaint
belonged to the villagers of Perumbathur and it should be administered by the said
Sabai. The said institution was originally managed by the registered society bearing
Registration No.9/55 of the Society Registration Act. Since 1955, Narayanasamy
Naicker was the President of the said Nirvaha Sabai and he was acted in three
capacities as President, Secretary and Manager of the said Saba.
(ii) Subsequently, no meeting was convened for electing the President and Office
bearers. The said Registered Society became dormant. The school was run with the
help of the villagers. In fact, one Seenivasa Naicker during the year 1955, acquired
the site wherein the said Educational institution is located and constructed the school
building with the help of the public funds. The Panchayat union of Sankarankoil
also contributed for the construction of the building. However, the first defendant’s
father Innasimuthu started mismanaging the institution.
(iii) Following him, his son, the first defendant also acted against the interest of the public
institution and had the intention to grab the institution and its properties. On
29.05.1976, the general body meeting of the villagers was held and in that, the
plaintiff was elected to act in two capacities as the President and Secretary of the
School and the governing body of the Nirvaha sabai which comprised of fifteen
members were also elected by the general body. Thereupon, the plaintiff assumed
the charge of the President and Secretary of the said Sabai and he has failed to render
accounts and restore the materials and articles taken away by him and his father from
the school. However, the first defendant started setting up title in is name by taking
false pleas.
(iv) Thereupon, the plaintiff filed the suit in O.S.No.257 of 1976 in the District Munsif
Court, Kovilpatti, against the first defendant and his father for declaration and
injunction. While the plaintiff seeking the relief of declaration and for permanent
injunction as against the first defendant and his father, the suit was decreed as prayed
for. The said Innasimuthu died during the pendency of the suit itself. A.S.No.143 of
1979 was filed by the first defendant in the Sub Court, Tenkasi which was allowed
reversing the judgment and decree of the trial Court on technical grounds that the suit
was not filed in representative capacity. Thereupon, this Court in the
previous S.A.No.2097 of 1980 held that the plaintiff herein should have filed a
representative suit. The plaintiff demanded the first defendant to hand over the plaint
schedule property, but he failed to respond positively. Hence, the fresh suit.
4. Denying and disputing, challenging and impugning the allegations/averments in
the plaint, the first defendant filed the refutatory written statement which was adopted by
the defendants 2 to 7 who were subsequently added in the suit; the pith and marrow of it, would
run thus:
The suit instituted by Muthiah in his capacity as the President, the Secretary and the
Manager of the said Sabai is untenable. The said educational institution is not a public school
belonging to the villagers of Perumbathur. The Perumbathur Vivekananda Vidyasalai Nirvaha
Sabai, is an educational institution, but it was not managed by any registered society as alleged in
the plaint. There was no such Society. The villagers did not elect the plaintiff to manage the
school at any time. The narration of facts in the plaint are all false. Innasimuthu, the father
of the first defendant was fully recognised as the Manager and Correspondent by the District
Educational Officer. After the death of the said Innasimuthu, his son, the first defendant became
the Manager of the institution and he was recognised so by the educational authority. The
Tahsildhar also recognised him by granting licence in favour of him for running the school as per
the Madras Act, 1965. Accordingly, they prayed for the dismissal of the suit.
5. The trial Court framed the relevant issues.
6. During trial, the plaintiff examined himself as P.W.1 and Exs.A.1 to A.16 were marked.
The first defendant examined himself as D.W.1 along with D.W.2 and D.W.3 and Exs.B.1 to B.8
were marked.
7. Ultimately, the trial Court decreed the suit.
8. Challenging the said judgment and decree of the trial Court, the first defendant preferred
the appeal before the Principal Sub Court, Tenkasi, which Court reversed the judgment and
decree of the trial Court and dismissed the original suit.
9. Being aggrieved by and dissatisfied with, the judgment and decree of the first
appellate Court, the plaintiff filed this second appeal on the main grounds inter alia thus:
The judgment and decree of the first appellate Court is against the law and it was passed
without considering the decision rendered by the trial Court on issue No.(i). It simply reversed
the judgment of the trial Court. The first appellate Court has not decided on the question as to
whether the school concerned belongs to the public or to the first defendant. The first
appellate Court was wrong in rejecting the case of the plaintiff as though he has not been elected
as the President, Secretary of the Committee. The finding of the lower appellate Court that
there was no evidence regarding the convening of the meeting to elect the said Muthiah was
wrong. The lower appellate Court ought not to have relied on Ex.B.1 and B.6. Accordingly, the
plaintiff prayed for setting aside the judgment and decree of the first appellate Court and for
restoring the judgment and decree of the trial Court.
10. At the time of admitting this second appeal, my learned Predecessor framed the
following substantial questions of law:
“(i) Whether the lower appellate Court is justified in skipping over issue No.1, which is
to the effect that whether the school in question belongs to the public or the 1st
defendant?
(ii) Whether the lower appellate Court is justified in reversing the trial Court’s
judgment?”
11. Both the points are taken together for discussion as they are interlinked and interwoven
with each other.
The Points:
12. The learned counsel for the plaintiff detailing and delineating the factual background of
this case, would develop his argument to the effect that in the previous round of litigation as
referred to supra, the plaintiff could not succeed, because of technical defects in not filing the suit
in his representative capacity; whereas the subsequent suit was properly instituted and the trial
Court correctly understanding the principles involved in this case decreed the suit. Whereas
the first appellate Court reversed it, without deciding the issues involved in it.
13. The learned counsel for the defendants would contend that the very contention of the
representative namely Muthiah that he was elected as the President and the Secretary of the
Association would speak volumes that all is not well with the functioning of the said group of
people whom Muthiah alleged to represent. In fact, the defendants would contend as though the
school has become the exclusive property of the defendants.
14. Perused the records.
15. During arguments, this Court itself suggested to both sides to think over as to whether
a via media could be chalked out at for the purpose of peaceful running of the school.
16. The learned Advocates on both sides in all fairness in the best interest of both sides and
the public concerned in this matter, have come forward with the following suggestions:
The Government could be directed to take over the school and the properties concerned, so
that there will not be any difficulty in future. The learned counsel for the plaintiff submitted the
signed willingness of his party as well as the public interested in the matter, which is to the effect
that they are having no objection for the Government to take over the school as well as the
management in accordance with law.
17. The learned counsel for the defendants would submit that the first defendant is also
present and he is also willing for the Government to take up the School and the properties
concerned.
18. In view of such healthy development during the pendency of this second appeal, I am
of the considered opinion that there is no point in giving specific finding on the factual issues and
thereby paving way for further brewing of ill-will between the parties. Even on merits, if the
matter is viewed, it is clear from evidence including the documents marked and the typed set of
papers that for about two decades, both sides are litigating as against each other and each one is
trying to find fault with the other.
19. The plaintiff by placing reliance on Ex.A.7, would submit that the public of that
Perumbathur village are expected to participate in the general body, in which the representatives
should be elected once in three years for governing the school and to administer the school. In
that process alone, so many disputes arose and it paved the way for litigation and the
management also is kept under tender-hooks. It is obvious that the personnel running the school
should be free from litigation as otherwise, they would not have the peace of mind to think
about the further progress of the school. Hence, in order to put an end to such avoidable
litigations in future and also the lis on hand, I would like to record here my finding that it is of no
use to think of adhering to the archaic procedure of election as contemplated in Ex.A.7, to run the
school by the elected representatives of the people of that locality and that too, in the wake of the
Educational Code and the progressive thinking obtaining in educational sector.
20. A mere perusal of the Educational Code and the Educational Laws therein would speak
volumes as to how drastic changes have developed in the field of private and public school
education.
21. The Advocates on both sides would draw the attention of this Court to Section 34 of
the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 and it is extracted
hereunder for ready reference:
“Section 34. Taking over management of private school.—(1) If, on receipt of a report
from the competent authority or otherwise, the Government are satisfied that the
educational agency of any private school has neglected to discharge any of the duties
imposed on, or to perform any of the functions entrusted to, that agency by or under this
Act or any rule or order made or direction issued thereunder and that it is expedient in the
interests of school education to take over the management of such private school, the
Government may, by order, in writing, take over the management of such private
school:”
(emphasis supplied)
22. It is therefore crystal clear that there would be no impediment for giving direction to
take over the said management in accordance with law and do the needful. Accordingly, the
substantial questions of law are answered.
23. In the result, the second appeal is disposed of setting aside the judgments and decrees
of both the Courts below and the original suit is ordered thus:
The Government shall take immediate steps by virtue of its power and more specifically its
power under Section 34 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973,
to take over the administration of that school in the best interest of the public of that locality.
The Secretary to the Elementary Education Board is specifically directed to take up this matter
urgently and do the needful. The copy of this order shall be marked to the District Collector
concerned, the District Elementary Educational Officer and the Assistant Elementary Educational
Officer to do the needful. The parties concerned are also at liberty to approach the said Secretary
and other officials for speedy action. Consequently, connected miscellaneous petition is
closed. No costs.
Appeal disposed of.

[2008 (1) T.N.C.J. 843 (Mad) (MB)]


MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE:
K.K. SASIDHARAN, J.
SAROJINI AND ANOTHER ...Appellants
Versus
MOHANDOSS AND OTHERS ...Respondents
[S.A. (MD) No. 49 of 2003, decided on 27 February, 2008]
th

(A) Indian Succession Act, 1925—Section 63—Evidence Act, 1872—Sections 63 and


68—Civil Procedure Code, 1908—Section 100—Will—Proof of—To constitute valid Will
testator or testatrix had to sign Will and it had to be attested by two witnesses—Here Will
not signed by testatrix and scribe had only written name of testatrix in every page and there
is no signature or thumb impression found against name of testatrix—Absence of
signature in Will vitiates whole Will. (Paras 21 and 24)
(B) Civil Procedure Code, 1908—Section 100—Second appeal—Interference of—
Suit for recovery of possession on basis of Will decreed—Order upheld by appellate Court
—Held, absence of signature of testatrix in Will overlooked by Trial Court as well as first
appellate Court—Court below ignored material evidence as such a case is made out
warranting interference in second appeal—Thus, appeal allowed.
(Paras 26 to 28)
Case law.—2006 (2) LW 658 distinguished; 2002 (2) SCC 85; 2006 (5) Scale 477;—
relied on; 2006 (14) Scale 186;—referred.
Counsel.—Mr. A. Sankara Subramanian, for the appellants; Mr. S. Subbiah, for the 1 st
respondent.
JUDGMENT
K.K. SASIDHARAN, J.—The second appeal is directed against the judgment and decree
dated 16.02.2001 in O.S.No.90 of 1995 on the file of the District Munsif, Vilathikulam, as
confirmed by the judgment and decree dated 08.01.2002 in A.S.No.11 of 2001 on the file of the
Subordinate Judge, Kovilpatti.
2. The first respondent in the present appeal preferred a suit in O.S.No.90 of 1995 before
the trial Court for a decree of declaration and for recovery of possession in respect of the suit
property. It is the case of the first respondent as plaintiff in the suit that the suit property
originally belonged to his mother and the appellants herein being the defendants 1 and 2 in the
suit are his sisters and his mother along with father executed a joint Will on 10.09.1981, whereby
the schedule property was bequeathed in his favour. It is his further case that the mother died
on 16.08.1990 and as such, the Will had come into force and accordingly, he prayed for
declaration and recovery of possession, as the property was found to be in the possession of the
appellants.
3. In the written statement filed by the appellants as defendants in O.S.No.90 of 1995, they
did not admit the Will stated to have been executed on 10.09.1981 and it is their case that after
the death of mother, their father executed a Will on 18.08.1991, whereby there was an
equitable distribution of property among all the children and, therefore, it was the contention of
the appellants that the plaintiff is not entitled to the relief as prayed for. The respondents 2 and 3
stated to be the assignee under the first respondent, were declared ex parte consequent to their
non-appearance.
4. During the course of trial, the joint Will executed by Ramasamy and Nagammal, parents
of the appellant, was marked as Ex.A-1. P.W.2 an attesting witness was examined to prove the
Will. The Will dated 18.08.1991 executed by the father was marked as Ex.B-1 and the
appellants examined D.W.2 to prove the Will.
5. The trial Court framed necessary issues and considered the validity of the Will in
Ex.A-1 and Ex.B-1 and ultimately, decreed the suit as per judgment and decree dated 16.02.2001
and the said decree of the trial Court was challenged in appeal by the appellants and the appeal
was also dismissed, confirming the judgment and decree of the trial Court and it is the said decree
which is the subject matter of the present second appeal.
6. In the factual matrix as narrated above, I have heard Thiru. A.Sankara Subramanian,
learned counsel appearing for the appellants and Thiru.S.Subbiah, learned counsel appearing for
the respondents.
7. The learned counsel appearing for the appellants contended that the first respondent
failed to prove the Will in accordance with Section 68 of the Indian Evidence Act. It is his further
contention that the attestation of the Will has not been proved as required under law and as
such, it cannot be said that Ex.A-1 was proved so as to give legal effect to the said Will. It is also
contended that no benefit was derived by the father as per the joint Will and as such, the Will
comes into effect only after the death of both the father as well as mother and there is also an
indication to that effect in the Will itself and as such, in the absence of any consideration received
by the surviving testator, it cannot be said that the Will came into effect immediately after the
death of one of the testators. He had also pointed out that there is a specific clause in the Will
granting liberty to either of the parties to cancel the Will with a further stipulation that the Will
become operational only after the death of both the testators. The learned counsel also relied on
Ex.B-1 Will stated to have been executed by the father on 18.08.1991 to show that there is no
reference about Ex.A-1 Will in the said document and as such, it has to be taken that Ex.A-1 Will
is a forged one and the testator was not aware of any such Will.
8. The learned counsel for the first respondent submitted that there was no serious
challenge to the Will by the appellants and as such, the first respondent has proved the Will by
examining P.W.2, being the attesting witness, and, therefore, the Will has to be taken as proved
as required by law. He further contended that during the course of evidence, D.W.1 herself
admitted the existence of Will as per Ex.A-1 and as such, it is too late for the appellants to
contend that the Will has not been proved as provided under Section 68 of the Indian Evidence
Act.
9. The trial Court, while accepting the case of the first respondent, in addition to certain
attending circumstances, mainly relied on the fact that there is no reference in Ex.B-1 about the
cancellation of Ex.A-1 Will and as such, the trial Court held that Ex.A-1 is deemed to be in
existence being the last Will of the testator.
10. The lower Court records in this case had already been summoned and I have
gone through the records as well as the exhibits marked on the side of both the parties. On a
perusal of Ex.A-1, it is seen that one of the testators, namely Nagammal, the mother of the
appellants as well as the first respondent (hereinafter referred to as testatrix) did not sign the
Will at all. In the place earmarked for the signature of the second executant, her name appears to
have been written by the scribe and there is no corresponding signature in the said place. The
Left Thumb Impression of the testatrix is also not found anywhere in Ex.A-1. In the reverse
page meant for making endorsement by the Sub-Registrar with regard to due execution, neither
the signature nor the Left Thumb Impression of the testatrix is found. However, the signature of
the father is found in the Will. Ex.A-1 in original was given to the counsel for the appellants as
well as the counsel for the first respondent for verification and on perusal, they have
confirmed that the testatrix did not sign in Ex.A-1. However, the learned counsel for the first
respondent, by placing reliance on the judgment of the Honourable Supreme Court in the case of
Pentakota Satyanarayana and others v. Pentakota Seetharatnam and others reported in 2006 (2)
LW 658 contended that the attestation by the Registrar is sufficient in such cases and as
such, there is due execution of the Will by the testatrix.
11. The property involved in the present appeal is the second item in Ex.A-1 which was
intended to devolve upon the first respondent. It is the consistent case of the first respondent that
Schedule-II in Ex.A-1 exclusively belongs to his mother and as such, on the basis of the Will,
the property devolved on him consequent to the death of mother. In case it is proved that the
mother did not sign the Will, the property left by the mother and found in Schedule-II in Ex.A-1
has to be partitioned among the legal heirs of the testatrix and in such a case the first respondent
is not entitled for a decree as prayed for by him and as granted by the Court below.
12. The Will dated 10.09.1981 is a joint Will intended to take effect after the death of both
the parties and the testator and testatrix had retained the power to cancel the Will. The said Will
was registered before the Sub-Registrar and in order to prove the Will, P.W.2-an employee of a
nearby hotel was examined. The said witness had stated that he was summoned by the first
executant, namely Ramasamy, the father of the appellants to sign the Will and he also deposed
that the executant told him that he is going to give the property to his son by way of Will. The
attesting witness did not speak in so many words about the execution of the Will or the factum of
affixing signature by the testator in his presence. P.W.2 deposed before the trial Court that
both the testators have signed the Will. But the fact remains that only the first executant has
signed the Will and the testatrix did not sign and the said fact is now confirmed on verification of
the original Will in Ex.A-1 in the presence of the counsel appearing on either side. Neither the
Registrar nor the scribe were examined as witnesses to prove the Will.
13. Now the main point for consideration and the substantial question of law pertains
to the validity of the Will in the absence of signature of one of the parties to the joint Will. It
has to be seen as to whether Ex.A-1 could be construed to be a joint Will executed by both the
parties even in the absence of the signature of joint executant in the Will. In case the Will is
proved, the first respondent is entitled to the property in Schedule-II of the Will and in the
absence of a valid Will executed by the testatrix, even if the Will executed by the father is proved,
the first respondent is not entitled to get a decree as admittedly the suit property belongs to the
mother.
14. The appellants relied on Ex.B-1 to show that the Will as per Ex.A-1 was fabricated as
no reference of Ex.A-1 is made in Ex.B.1 and in view of Ex.B-1 dated 18.08.1991, the property
has to be divided as per the recitals in the said Will. However, it is seen that only a certified copy
of the Will was produced by the appellants and it is the case of D.W.1 during her evidence that
the original of Ex.B-1 was with her husband. If that being the case, nothing prevented the
appellants from producing the original of the Will from the custody of the husband of D.W.1 and
there is no acceptable evidence to prove the execution of Ex.B.1 and therefore, no reliance could
be placed on Ex.B-1 to decide the issue raised in the appeal and as such, Ex.B-1 was rightly
rejected by the Court below.
15. The construction of Ex.A-1 and its legal effect on account of the death of one of the
parties to the joint Will are the core issues to be decided in the appeal.
16. With respect to the issue pertaining to non-execution of Will by the testatrix, Ex.A-1
produced in original itself is conclusive to prove that the testatrix had not signed the Will at all.
Merely because the Sub-Registrar has signed the Will, it cannot be said that the Will is proved
and it is not necessary to prove the execution. Unlike other documents a Will has to be construed
strictly as the will speaks from the death of the testator.
17. The following substantial questions of law arise for consideration in this case:
“(i) Whether Ex.A.1-Will is valid on account of the absence of signature of the
testatrix?; and
(ii) Whether the Will in Ex.A.1 is proved in terms of Section 68 of the Indian Evidence
Act?”
18. The learned counsel for the first respondent placed reliance on the judgment of the
Apex Court in the case of Pentakota Satyanarayana and others v. Pentakota Seetharatnam and
others reported in 2006 (2) LW 658 and contended that Ex.A.1 contains the signature of the
Registering Officer as well as the attesting witnesses and in view of the same, the first respondent
has complied with the condition as provided under Section 68 of the Indian Evidence Act.
19. In Pentakota Satyanarayana’s case cited supra, the Will was signed by the testator and
it was also attested by two witnesses. The Sub-Registrar had made the necessary endorsement in
the Will and he had also signed the Will. It was in the said context, having satisfied that the
testator as well as the attesting witnesses had signed the Will and there was also an endorsement
to that effect by the Sub-Registrar, that the Apex Court observed that there was due attestation
and as such, the Will was proved. The facts of the present case is totally different and as such, the
judgment in Pentakota Satyanarayana’s case, which was decided in the peculiar facts of the
said case, had no application in the present case.
20. The Apex Court in the case of Niranjan Umeshchandra Joshi v. M. Jyoti Rao reported
in 2006 (14) Scale 186, considered the requirement of a valid Will and held thus:
“32. Section 63 of the Indian Evidence Act lays down the mode and manner in which
the execution of an unprivileged Will is to be proved. Section 68 postulates the
mode and manner in which proof of execution of document is required by
law to be attested. It in unequivocal terms states that execution of Will must be
proved at least by one attesting witness, if an attesting witness is alive subject to
the process of the Court and capable of giving evidence. A Will is to prove
what is loosely called as primary evidence, except where proof is permitted by
leading secondary evidence. Unlike other documents, proof of execution of
any other document under the Act would not be sufficient as in terms of Section
68 of the Indian Evidence Act, execution must be proved at least by one of the
attesting witnesses. While making attestation, there must be an animus attestandi,
on the part of the attesting witness, meaning thereby, he must intend to attest and
extrinsic evidence on this point is receivable.
33. The burden of proof that the Will has been validly executed and is a genuine
document is on the propounder. The propounder is also required to prove that
the testator has signed the Will and that he had put his signature (Emphasis
supplied) out of his own free will having a sound disposition of mind and
understood the nature and effect hereof. If sufficient evidence in this behalf is
brought on record, the onus of the propounder may be held to have been
discharged. But, the onus would be on the applicant to remove the suspicion by
leading sufficient and cogent evidence if there exists any. In the case of proof of
Will, a signature of a testator alone would not prove the execution thereof,
if his mind may appear to be very feeble and debilitated. However, if a defence
of fraud, coercion or under influence is raised, the burden would be on the
caveator. [See Madhukar D. Shende v. Tarabai Shedage, (2002) 2 SCC 85 and
Sridevi and others v. Jayaraja Shetty and others, (2005) 8 SCC 784. Subject to
above, proof of a Will does nor ordinarily differ from that of proving any other
document.”
21. Thus, it is evident that to constitute a valid Will, the testator or testatrix had to sign the
Will and it has to be attested by two witnesses. In the present case, the Will has not been signed
by the testatrix and the scribe had only written the name of the testatrix Nagammal in every page
and there is no signature or Left Thumb-Impression found against the name of the testatrix. The
absence of signature in the Will vitiates the whole will and as such, Ex.A-1 cannot be construed
to be the Will executed by the mother of the first respondent and as such, the first respondent is
not entitled to get the property of the mother as a legatee of the Will.
22. The requirement of proof of Will was considered extensively by the Apex Court in
Madhukar D. Shende v. Tarabai Aba Shedage reported in 2002 (2) SCC 85 and held thus:
“8. The requirement of proof of a will is the same as any other document excepting
that the evidence tendered in proof of a Will should additionally satisfy the
requirement of Section 63 of the Indian Succession Act, 1925 and Section 68
of the Indian Evidence Act, 1872. If after considering the matters before it, that
is, the facts and circumstances as emanating from the material available on
record of a given case, the Court either believes that the Will was duly executed
by the testator or considers the existence of such fact so probable that any
prudent person ought, under the circumstances of that particular case, to act
upon the supposition that the Will was duly executed by the testator, then the
factum of execution of Will shall be said to have been proved. The delicate
structure of proof framed by a judicially trained mind cannot stand on weak
foundation nor survive any inherent defects therein but at the same time ought
not to be permitted to be demolished by wayward pelting of stones of suspicion
and supposition by wayfarers and waylayers. What was told by Baron Alderson
to the jury in R.V.Hodge may be apposite to some extent:
‘The mind was apt to take a pleasure in adapting circumstances to one another
and even in straining them a little, if need be, to force them to form parts of one
connected whole, and the more ingenuous the mind of the individual, the more
likely was it, considering such matters, to overreach and mislead itself, to
supply some little link that is wanting, to take for granted some fact consistent
with its previous theories and necessary to render them complete.’
The conscience of the Court has to be satisfied by the propounder of Will
adducing evidence so as to dispel any suspicions or unnatural circumstances
attaching to a Will provided that there is something unnatural or suspicious about
the Will. The law of evidence does not permit conjecture or suspicion having
the place of legal proof nor permit them to demolish a fact otherwise proved by
legal and convincing evidence. Well-founded suspicion may be a ground for
closer scrutiny of evidence but suspicion alone cannot form the foundation of a
judicial verdict - positive or negative.
9. It is well-settled that one who propounds a will must establish the competence
of the testator to make the Will at the time when it was executed. The onus is
discharged by the propounder adducing prima facie evidence proving the
competence of the testator and execution of the Will in the manner contemplated
by law. The contestant opposing the Will may bring material on record meeting
such prima facie case in which event the onus would shift back on the
propounder to satisfy the Court affirmatively that the testator did know well
the contents of the Will and in sound disposing capacity executed the same. The
factors, such as the Will being a natural one or being registered or executed
in such circumstances and ambience, as would leave no room for suspicion,
assume significance. If there is nothing unnatural about the transaction and the
evidence adduced satisfies the requirement of proving a Will, the court would not
return a finding of ‘not proved’ merely on account of certain assumed suspicion
or supposition. Who are the persons propounding and supporting a Will as
against the person disputing the Will and the pleadings of the parties would be
relevant and of significance.”
23. The learned counsel for the appellants submit that even in Ex.A-1 Will the testator
had retained the right to cancel the Will and there is also an indication that the Will would come
into force only after the death of both the parties. The said contention was raised only to show
that the Will had not come into force with the death of the testatrix. It is not necessary to refer to
those contentions on account of the fact that Ex.A.1-Will cannot be treated to be a joint Will on
account of the absence of the signature of one of the testators under whom the first respondent
claims property as the legatee. The first respondent has examined P.W.2 to prove that he had
attested the Will. It is the evidence of P.W.2 that he had witnessed to the execution of Will and
according to him, both the testators have signed in his presence. However, the fact remains that
the Will did not contain the signature of the testatrix.
24. The learned counsel for the first respondent heavily relied on the evidence of D.W.1 to
show that she do not know anything about Ex.A.1 and it was his further contention that there was
admission on the part of D.W.1 to the effect that her mother’s name is found in Ex.A.1. There is
no quarrel with regard to the statement that the name of the mother is found in Ex.A.1. But the
main issue pertains to the validity of Ex.A.1 and it has to be seen as to whether the said document
could be construed to be a Will executed by the testatrix in the absence of her signature. The
scribe, who had written the Will, and the Sub-Registrar, who had registered the document,
were not examined. The absence of the signature of the testatrix in the Will was not taken note of
by the trial Court as well as the first appellate Court. In fact, the counsel for the appellants as well
as the first respondent in the present appeal were also not aware of the said fact and it was noticed
only when the Will was looked into during the course of hearing of the second appeal and,
therefore, it cannot be said that the findings of fact recorded by the Court below are based on
pleadings and evidence in the matter.
25. The Apex Court in the case of Hero Vinoth v. Seshammal reported in 2006 (5) Scale
477, considered the legal effect of the terms of a document giving rise to a question of law and
the scope of interference by the High Court in a proceeding under Section 100 of the Code of
Civil Procedure and held thus:
“13. Though as rightly contended by learned counsel for the appellant the scope for
interference with concurrent findings of fact while exercising jurisdiction
under Section 100, CPC is very limited, and re-appreciation of evidence is not
permissible where the trial Court and/or the first Appellate Court misdirected
themselves in appreciating the question of law or placed the onus on the wrong
party certainly there is a scope for interference under Section 100, CPC after
formulating a substantial question of law.
14. As was noted in Yadarao Dajiba Shrawane (dead) by LRs. v. Nanilal
Harakchand Shah (dead) and others, 2002 (6) SCC 404, if the judgments of the
trial Court and the first Appellate Court are based on mis-interpretation of the
documentary evidence or consideration of inadmissible evidence or ignoring
material evidence or on a finding of fact has ignored admissions or concession
made by witnesses or parties, the High Court can interfere in appeal.
15. Neelakantan and others v. Mallika Begum, 2002 (2) SCC 440, it was held that
findings of fact recorded must be set aside where the finding has no basis in any
legal evidence on record or is based on a misreading of evidence or suffers from
any legal infirmity which materially prejudices the case of one of the parties.
(See: Krishna Mohan Kul alias Nani Charan Kul and another v. Pratima Maity
and others, (2004) 9 SCC 468.)
24. The principles relating to Section 100, CPC, relevant for this case, may be summarised
thus:—
(i) An inference of fact from the recitals or contents of a document is a question of
fact. But the legal effect of the terms of a document is a question of law. Construction
of a document involving the application of any principle of law, is also a question
of law. Therefore, when there is misconstruction of a document or wrong application
of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of
law, and not a mere question of law. A question of law having a material bearing on
the decision of the case (that is, a question, answer to which affects the rights of
parties to the suit) will be a substantial question of law, if it is not covered by any
specific provisions of law or settled legal principle emerging from binding
precedents, and, involves a debatable legal issue. A substantial question of law will
also arise in a contrary situation, where the legal position is clear, either on account
of express provisions of law or binding precedents, but the Court below has
decided the matter, either ignoring or acting contrary to such legal principle. In
the second type of cases, the substantial question of law arises not because the law is
still debatable, but because the decision rendered on a material question, violates the
settled position of law.
(iii) The general rule is that High Court will not interfere with concurrent findings of the
Courts below. But it is not an absolute rule. Some of the well recognized
exceptions are where (i) the Courts below have ignored material evidence or acted on
no evidence; (ii) the Courts have drawn wrong inferences from proved facts by
applying the law erroneously; or (iii) the Courts have wrongly cast the burden of
proof. When we refer to ‘decision based on no evidence’, it not only refers to cases
where there is a total dearth of evidence, but also refers to any case, where the
evidence, taken as a whole, is not reasonably capable of supporting the finding.”
26. The suit was instituted by the first respondent for declaration and recovery of
possession on the basis of Ex.A-1 Will. It is the concrete case of the first respondent that the
property covered by Ex.A-1 Will, which was given to him, absolutely belonged to his mother and
consequent to the death of mother, the Will came into force and accordingly, he is entitled to the
property as legatee of the Will. Both the Courts below proceeded on the basis that Ex.A-1 Will
was executed by the testatrix and the said Will had come into force immediately after the
death of the testatrix. The decree for declaration and recovery of possession were also granted on
the said factual premises. But the fact remains that the testatrix did not execute Ex.A-1 and the
factum of absence of the signature of the testatrix in the Will was overlooked by the trial Court as
well as the first appellate Court. Therefore, it has to be concluded that while granting the decree
in favour of the first respondent, the Court below ignored material evidence and, as such a case is
made out warranting interference in second appeal. The approach of the trial Court as well as the
first appellate Court were erroneous as both the Courts below analysed the issue on the basis that
the Will is valid and genuine. No attempt was made by the trial Court as well as the first appellate
Court to verify the Will for the purpose of ascertaining the validity or genuineness of the Will.
27. The Court below failed to note that the compliance of statutory requirement alone is
not sufficient to conclude the validity of the Will. It is the duty of the Court to satisfy about the
genuineness or the due execution of the Will and such satisfaction could be arrived at by the
Court, only in case the Will is perused by the Court, while deciding the matter. In the case on
hand, both the trial Court as well as the appellate Court did not consider it necessary to inspect
the Will for the purpose of satisfying as to whether the Will was duly executed.
28. Therefore, the judgment and decree of the Court below warrants interference in
the present second appeal and as such, the substantial questions of law are decided in favour of
the appellants. Accordingly, the second appeal is allowed and the judgment and decree dated
08.01.2002 in A.S.No.11 of 2001 on the file of the Subordinate Judge, Kovilpatti, confirming the
judgment and decree dated 16.02.2001 in O.S.No.90 of 1995 on the file of the District Munsif,
Vilathikulam is set aside, and consequently, the suit filed by the first respondent in O.S.No.90 of
1995 is dismissed. However, in the facts and circumstances of the case, there will be no order as
to costs.
Appeal allowed.

[2008 (1) T.N.C.J. 854 (Mad) (MB)]


MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE:
G. RAJASURIA, J.
BRANCH MANAGER, NEW INDIA
ASSURANCE CO. LTD., THENI ...Appellant
Versus
TMT. KANNAMMAL AND OTHERS ...Respondents
[C.M.A. (MD) No. 1360 of 2007 and MP (MD) No. 1 of 2007, decided on 21 February, 2008]
st

Motor Vehicles Act, 1988—Section 166—Compensation—Quantum of—Deceased a


lady of 40 years died in unmarried state leaving behind her mother aged about 72 years—
She was having married sister and sister’s children also—Tribunal awarded
compensation of Rs. 4,10,000/-—Hence, appeal—Held, deceased was earning Rs. 3,000/-
p.m.—1/3 deducted towards her personal expenses—Monthly dependency come out at
Rs. 2,000/-—Since mother was 72 years of age thus multiplier of 5 would be applied—
Married sister could claim compensation to some extent but children of sister can never
be considered as persons eligible for compensation—Considering totality of case
compensation comes to Rs. 1,50,000/-—Thus compensation reduced—Appeal partly
allowed. (Paras 7 to 13)
Counsel.—Mr. R. Kumararaja, for the appellant; Mr. V. Venkata-samy, for the
respondents 1 to 5.
JUDGMENT
G. RAJASURIA, J.—This appeal is focussed as against the Judgement and Decree
dated 07.06.2007 passed in M.C.O.P.No.220 of 2005 by the learned Motor Accidents Claims
Tribunal-cum-the Chief Judicial Magistrate, Theni.
2. Heard both sides. This matter has come up before me by way of rehearing this C.M.A.
vide order dated 21.02.2008. The learned counsel for the petitioners submits that his name also
may be included as the counsel for the respondents/claimants.
3. Perused records. No new points highlighted.
4. I am satisfied that already all the factual and legal issues were dealt with in accordance
with law. Hence, the order dated 04.01.2008 already passed is once again reiterated as under:
The Tribunal vide Judgment dated 07.06.2007 awarded compensation to a tune of
Rs.4,10,000/- (Rupees four lakhs and ten thousand only) under the following sub-heads:
For loss of income -Rs.4,08,000/-
For funeral expenses -Rs. 2,000/-
Total -Rs.4,10,000/-

5. The gist and kernel of the grounds of appeal as stood exposited from the memorandum
of appeal could be set out thus:
The Tribunal failed to take into consideration the fact that the deceased lady aged about 40
years old died in unmarried state leaving behind her mother aged about 72 years. Her married
sister and the married sister’s children are not at all to be taken into consideration for assessing
the compensation. Accordingly, the learned counsel for the appellant/Insurance Company prays
for modifying the award.
6. The point for consideration is as to whether the Tribunal awarded ‘just compensation’?
The Point:
7. The learned counsel for the appellant/Insurance Company would submit that the
deceased undoubtedly died as a Hindu and as per the Hindu Succession Act, the mother is the
class I heir/legal representative and in her absence her sister could be treated so; however by no
such imagination the married sister’s children could be taken as legal representatives/
dependants of the deceased lady. I could see considerable force in the submission made by the
learned counsel for the appellant/Insurance Company. However, one fact which I want to
highlight is that even a married sister to some extent could claim compensation towards loss
of social support, however her children can never be considered as persons eligible to claim
compensation because the deceased sister’s children should be looked after by their parents and
not by the deceased lady.
8. The learned counsel for the appellant Insurance Company would correctly submit that
since the deceased lady died in unmarried state, her mother’s age should be taken for choosing
the multiplier. Undoubtedly and indubitably the first respondent/first claimant, the mother of the
deceased was 72 years old as on the date of the death of the deceased lady even as per the version
in the petition. As such, the multiplier 5 would be appropriate.
9. The Tribunal assessed the income of the deceased at Rs.3,000/- (Rupees three thousand
only), which requires no interference as nothing has been highlighted by the appellant/Insurance
Company to modify it. Deducting one-third (1/3) out of Rs. 3,000/- (Rupees three thousand only)
towards the expenditure which the deceased would have incurred for maintaining herself had she
been alive irrespective of the fact whether the deceased led the life of a Bohemian or that of a
Spartan, the monthly dependency would come to Rs.2,000/- (Rupees two thousand only). Hence,
the compensation under the head ‘loss of income’ shall be re-fixed at Rs.1,20,000/- [Rs.2000 x
12 x 5 = Rs.1,20,000/-] (Rupees one lakh and twenty thousand only).
10. Towards loss of love and affection, the respondent Nos.1 and 2/claimant Nos.1 and 2
could be considered and each one of them is entitled to a sum of Rs.10,000/- (Rupees ten
thousand only).
11. Towards funeral expenses a sum of Rs.2,000/- (Rupees two thousand only) was
awarded, which could be enhanced to Rs.5,000/- (Rupees five thousand only).
12. Towards transport expenses no amount was awarded and hence a sum of Rs.5,000/-
(Rupees five thousand only) could be awarded under that count. Accordingly, the compensation
is modified as under:
For loss of income -Rs.1,20,000/-
For loss of love and
affection -Rs. 20,000/-
For funeral expenses -Rs. 5,000/-
For transport expenses -Rs. 5,000/-
Total -Rs.1,50,000/-

13. In the result, this civil miscellaneous appeal is partly allowed and the award of the
Tribunal is reduced from Rs.4,10,000/- (Rupees four lakhs and ten thousand only) to
Rs.1,50,000/- (Rupees one lakh and fifty thousand only) which shall carry interest at the rate of
7.5% as directed by the Tribunal. Out of that Rs.1,50,000/- (Rupees one lakh and fifty thousand
only), the first respondent/first claimant, the mother of the deceased is entitled to a sum of
Rs.1,40,000/- (Rupees one lakh and forty thousand only) and the remaining shall be given to the
second respondent/second claimant, the sister of the deceased. The claim against the other
claimants is dismissed. No costs. Consequently, the connected M.P. is closed.
Appeal partly allowed.

[2008 (1) T.N.C.J. 857 (Mad) (MB)]


MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE:
G. RAJASURIA, J.
M/S. UNITED INDIA INSURANCE CO. LTD., TRICHY ...Appellant
Versus
R. SAROJA AND OTHERS ...Respondents
[C.M.A. (MD) No. 1324 of 2006 and M.P.Nos. 1 of 2006 and 2 of 2007, decided on 26 th
February, 2008]
Motor Vehicles Act, 1988—Section 166—Compensation—Quantum of—Death of a
young girl of 17 years—She worked as semi-skilled masonry work and earned Rs. 50/- per
day—Monthly income assessed at Rs. 1500/-—1/3 amount deducted towards expenditure
—Tribunal awarded Rs. 3,03,000/- as compensation—Validity of—Held, father of deceased
is stated to be aged 62 years—Whereas mother of deceased stated to be 40 years and minor
is only 14 years—No clinching evidence to prove their respective age—Average age of
parents taken as above 45 but below 50 and accordingly multiplier of 13 applied—
Considering other factors like loss of income, funeral expenses, loss of love and affection
and loss of expectation of life compensation determined at Rs. 2 lakhs—Thus, appeal partly
allowed. (Paras 8 and 9)
Counsel.—Mr. B. Rajesh Saravanan, for the appellant; Mr. B. Prasannavinoth, for the
respondents 1 to 3, respondent 4 ex parte.
JUDGMENT
G. RAJASURIA, J.—This appeal is focussed as against the judgment and decree dated
30.09.2005 passed in M.C.O.P.No.1341 of 2002 by the Motor Accidents Claims Tribunal cum
the learned I Additional District Court, P.C.R, Trichy.
2. The challenge in this civil miscellaneous appeal is relating to the quantum of
compensation awarded by the Tribunal, vide judgment dated 30.09.2005, to a tune of
Rs.3,03,000/- (Rupees Three Lakhs and Three Thousand only) on the following sub-heads:
(i) For loss of income - Rs.2,88,000.00
(ii) For Funeral Expenses - Rs. 5,000.00
(iii) For loss of love and
affection - Rs. 10,000.00
Total - Rs.3,03,000.00

3. Heard both sides.


4. The challenge in this appeal is relating to the quantum only.
5. The learned counsel for the appellant would contend that for the death of a 17 years old
unmarried girl, the Tribunal awarded excessive compensation of Rs.3,03,000/- which by any
standard cannot be countenanced as a just compensation.
6. Whereas the learned counsel for the claimants would contend that the death of a 17
years old girl should be considered and that too when the parents are suffering a lot because of
the bereavement.
7. No doubt, we have to strike a balance between the two rival arguments and mere
sympathy is not a determining factor in deciding the compensation and in the meanwhile, the
compensation cannot be arrived at ignoring social factor involved in the case where bereavement
of a daughter is involved from the view of their parents who are the claimants in this case along
with their minor son.
8. The Tribunal took into consideration the fact that the deceased was a semi-skilled
masonry worker earning a sum of Rs. 50/- per day and accordingly, arrived at the total figure of
Rs.1,500/- as the monthly income of the deceased, which in my opinion, is quite reasonable as
during the year 2002, the girl of 17 years would not have earned much more than that amount and
in such a case, I would like to confirm that finding. However, 1/3rd amount should be deducted
towards the expenditure which she would have incurred for maintaining herself had she
been alive. The father of the deceased is stated to be aged 62 years old, whereas the mother of the
deceased is stated to be 40 years old. But, the minor claimant is aged only 14 years. As such,
there is no clinching evidence to prove their respective ages.
9. Hence, I am of the considered opinion that the average age of the parents can be taken
as above 45, but below 50 and accordingly, multiplier 13 could be applied. Accordingly, the
compensation under the head ‘loss of income’ would come to Rs.1,56,000/- (Rupees One Lakh
and Fifty-Six Thousand only) (Rs.1,000/- x 12 x 13 = Rs.1,56,000/-). Towards loss of love and
affection, a sum of Rs.10,000/- could be awarded to each of the claimants. Under the sub-head
‘Transport Charges’, a sum of Rs. 5,000/- could be awarded. Towards loss of expectation of life,
a sum of Rs.4,000/- could be awarded. Accordingly, the following formula emerges:
(i) For loss of income - Rs.1,56,000.00
(ii) For Funeral Expenses - Rs. 5,000.00
(iii) For loss of love and
affection - Rs. 30,000.00
(iv) For Transport Charges - Rs. 5,000.00
(v) For Loss of Expectation
of life - Rs. 4,000.00
Total - Rs.2,00,000.00

10. In the result, the civil miscellaneous appeal is partly allowed, reducing the total
compensation from Rs.3,03,000/- (Rupees Three Lakhs and Three Thousand only) to
Rs.2,00,000/- (Rupees Two Lakhs only). In other respects, the rest of the award passed is
confirmed. Consequently, connected miscellaneous petitions are closed. No costs.
Appeal partly allowed.

[2008 (1) T.N.C.J. 859 (Mad) (MB)]


MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE:
G. RAJASURIA, J.
IRULAYEE AND ANOTHER ...Appellants
Versus
K. ALAGARSAMY AND ANOTHER ...Respondents
[C.M.A. (MD) No. 183 of 2008, decided on 27 February, 2008]
th

(A) Motor Vehicles Act, 1988—Section 166—Compensation—Liability of pay—


Driver of offending vehicle not got his licence renewed—Violation of policy condition—
Hence, insurance company not liable to pay compensation. (Paras 9 and 10)
(B) Motor Vehicles Act, 1988—Section 166—Compensation—Determination of
amount—Deceased young man of 32 years died in accident leaving behind his wife and
minor child—At time of death he might have earning Rs. 30/- per day—After deducting
1/3, multiplier of 17 applied because widow and minor are claimants—Accordingly
compensation increased from Rs. 1,10,400/- to Rs. 1,50,400/-—Appeal allowed.
(Paras 12 to 17)
Case law.—2006 (2) CTC 342; 2004 (1) AJR 320 (SC).
Counsel.—Mr. G. Prabhu Rajadurai, for the appellants; Mr. Santhosam and Mr. R.S.
Ramanathan, for the respondents 1 and 2 respectively.
JUDGMENT
G. RAJASURIA, J.—This appeal is focussed as against the judgment and Decree dated
26.02.1996 passed in M.C.O.P.No.275 of 1995 by the learned Motor Accidents Claims Tribunal
(Principal District Judge) Sivagangai.
2. Heard both sides.
3. The Tribunal vide judgment dated 26.02.1996 awarded compensation to a tune of
Rs.1,10,400/-(Rupees one lakh ten thousand and four hundred only).
4. The challenge in this appeal is relating to the liability fixed on the owner of the vehicle
alone instead of fixing it on both the owner of the vehicle and the Insurance Company.
5. The grievance of the appellants/claimants is that the quantum of compensation awarded
by the Tribunal was very low despite the fact that an young man of 32 years old as a loadman
died in the year 1992, leaving behind his wife and minor child.
6. The points for consideration are (i) whether the second appellant/Insurance
Company is also to be fastened with the liability to pay the compensation despite the fact that the
driver of the offending vehicle (insured vehicle) did not get his driving licence renewed? and (ii)
whether the Tribunal awarded ‘just compensation’?
7. Point (i):
The learned counsel for the appellants/claimants by placing reliance on the grounds of
appeal would contend that in the accident concerned several persons sustained injuries; in one
other case, one other Tribunal fixed the liability both on the Insurance Company as well as the
owner of the offending vehicle; as against which A.O.No.279 of 1995 was filed before this Court,
but that appeal was dismissed; as against which no further steps have been taken by the Insurance
Company; however the Insurance Company only in this case turned turtle and taking a
different stand.
8. The learned counsel for the second appellant/ Insurance Company cannot
specifically deny the arguments of the learned counsel for the appellants/ claimants by producing
any order to show the contrary that the Insurance Company did not accept such a stand in
one other case; the Insurance Company being a public body cannot be allowed to take one
stand in one case and a different stand in one other case relating to one and the same accident.
Two different stands in respect of two different persons, relating to one and the same
individual by the Insurance Company is not tenable.
9. Be that as it may, coming to the case on hand, it is clear that the Tribunal gave a finding
to the effect that driver of the offending vehicle had licence to drive the lorry, but it got expired
by 13.10.1988 itself and the accident took place on 08.01.1992. No doubt, this is a case of the
driver of the offending vehicle having not got his licence renewed and that amounts to violation
of the policy conditions.
10. The Hon’ble Apex Court in National Insurance Co. Ltd. v. Kuzum Rai and others
reported in 2006 (2) CTC 347, held that if the driver of the offending vehicle did not possess
proper driving licence at the time of the accident, then the Insurance Company cannot be mulcted
with the responsibility to pay the compensation. However, in the cited case taking into
account the penurious and impecunious circumstances of the claimants ushered in the pay and
recovery theory subject to the decision of the Hon’ble Apex Court in Oriental Insurance Co. Ltd.
v. Shri Nanjappan and others reported in 2004(1) AJR 320 (SC). In this case also considering
the fact that a poor widow and her child have been litigating ever since the year 1992 for getting
compensation and that they have not received money, so far I am of the considered opinion that
pay and recovery theory could be applied subject to the decision of the Hon’ble Apex Court
in Oriental Insurance Co. Ltd. v. Shri Nanjappan and others reported in 2004 (1) AJR 320 (SC).
Accordingly, this point is decided in favour of the appellants/claimants.
11. Point (ii):
The learned counsel for the appellants/claimants would submit that even though a young
man of 32 years old died leaving behind his wife and minor child, the Tribunal awarded a meagre
compensation of Rs.1,10,400/- (Rupees one lakh ten thousand and four hundred only).
12. Perused the judgment of the Tribunal, which as per the present standard, is totally
untenable. The Tribunal simply took into account 23 years of the deceased’s future life and
accordingly arrived at some calculation and passed orders. The Tribunal also assumed as
though the deceased might have earned a sum of Rs.20/- (Rupees twenty only) per day. As such it
warrants interference by this Court. During the year 1992, a load man working in a lorry might
have earned not less than Rs.30/- (Rupees thirty only) per day and accordingly if worked out, his
monthly income comes to Rs.900/- (Rupees nine hundred only). After deducing one-third (1/3)
towards the expenditure which the deceased would have incurred for maintaining himself had he
been alive irrespective of the fact whether the deceased lead the life of a Bohemian or that of a
Spartan, the monthly dependency can be assessed at Rs.600/- (Rupees six hundred only).
13. The deceased died at the age of 32, leaving behind his wife and minor child. Taking a
cue from the Second Schedule appended to the Motor Vehicles Act, the appropriate multiplier is
17. I am fully aware of the fact that in all cases the multiplier as found suggested in the Second
Schedule appended to the Motor Vehicles Act cannot be taken as conclusive. But in this case, I
am of the considered opinion that multiplier 17 is the appropriate one because the widow and the
minor child are the claimants. As such unless multiplier 17 is chosen significant compensation
cannot be computed, so as to provide some succour to the claimants. Hence, the compensation
under the head ‘loss of income’ shall be re-fixed at Rs.1,22,400/- [ 900 x 12 x 17 x 2/3 =
1,22,400/-] (Rupees one lakh twenty-two thousand and four hundred only).
14. Towards loss of consortium a sum of Rs.15,000/- (Rupees fifteen thousand only) could
be awarded. Towards loss of love and affection yet another sum of Rs.10,000/- (Rupees ten
thousand only) could awarded in favour of the minor son.
15. The sub-head funeral expenses shall carry Rs.2000/- (Rupees two thousand only) and
the transport expenses shall carry Rs.1000/- (Rupees one thousand only). Accordingly, the
compensation is modified as under:
For loss of income -Rs.1,22,400/-
For loss of consortium -Rs. 15,000/-
For loss of love and
affection -Rs. 10,000/-
For funeral expenses -Rs. 2,000/-
For transport expenses -Rs. 1,000/-
Total -Rs.1,50,400/-

16. The Tribunal awarded 12% interest p.a.; considering the prevailing rate at that
time, the interest awarded is reduced to 9% p.a. in view of the long delay in filing appeal half of
the delay period shall be excluded from calculating interest.
17. In the result, this civil miscellaneous appeal is partly allowed and the award of the
Tribunal is enhanced from Rs.1,10,400/-(Rupees one lakh ten thousand and four hundred only) to
Rs.1,50,400/- (Rupees one lakhs fifty thousand and four hundred only) which shall carry interest
at the rate of 9% from the date of M.C.O.P. till deposit and half of the delay period shall be
excluded from computing the interest. The second appellant/Insurance Company is directed
to pay the award amount and recover it from the owner of the vehicle without initiating any
separate fresh proceedings, but by executing this judgment directly. Proportionately there will be
variation in the allotments in favour of each of the claimants depending upon the variation in the
total compensation awarded herein. No costs.
Appeal allowed.
[2008 (1) T.N.C.J. 863 (Mad) (MB)]
MADRAS HIGH COURT
(MADURAI BENCH)
BEFORE:
G. RAJASURIA, J.
THE SPECIAL TAHSILDHAR,
LAND ACQUISITION, THANJAVUR ...Appellant
Versus
RAJASWARI AND ANOTHER ...Respondents
[A.S.Nos. 116 and 117 of 2008 and M.P. (MD) Nos. 2 and 2 of 2008 in A.S. Nos. 116 and 117 of
2008, decided on 28th February, 2008]
Land Acquisition Act, 1894—Sections 4, 6, 18 and 21— Compensation—
Determination—Vast land acquired for Air Force Station—Normally sample sale deed
should relate to a land in same vicinity and near place where lands are acquired—
Notification published relating to one block of land for setting up Air Force Station—In
such cases taking into account the purpose of acquisition i.e., only one purpose, one of same
type of valuation can be taken up and there need not be any discrimination—Considering
developed area around land of acquisition assessment comes to Rs. 1744/- per cent—Land
required deduction of development charges—Accordingly 53% deducted—Claimant also
entitled to statutory benefit—Appeal disposed off.
(Paras 17, 18, 20 and 24 to 27)
Case law.—1994 (4) SCC 180; Supreme Court Judgments on Land Acquisition (1994-
2004) Vol. II p. 2053; 1996 (9) SCC 640; 2006 (2) LW 102—referred.
Counsel.—Mr. So. Paramasivam, Additional Govt. Pleader, for the appellant; Mr.
Palanisamy and Mr. M.K. Ramakrishnan Senior Panal Counsel for Central Government, for the
respondents 1 and 2 respectively.
JUDGMENT
G. RAJASURIA, J.—These appeals have been filed to get set aside the judgment and decree
passed in L.A.O.P.Nos.594 of 1997 and 136 of 1996 dated 02.03.2007 and 02.04.2007
respectively by the learned Additional District Judge, Fast Track Court No.I, Thanjavur.
2. The facts giving rise to the filing of these batch of appeals would run thus:
The publication of the notifications under Section 4(1) of the Land Acquisition Act were
made as under:
Sl.No. A.S.Nos. R.C.No. Date of 4(1) Notification Award Land Value
No.& Dated Fixed by the
FTC-1, Thanjavur.
(Per Cent)
1 116 of 2008 132/91 09.09.1992 10/94 - 03.10. 1994 Rs.1,000/-
2 117 of 2008 64/91 18.12.1991 11/91 - 18.11.1994 Rs.1,000/-
for acquiring a vast tract of a land for setting up Air Force Station at Thanjavur.
Consequently, necessary steps were taken as per law for acquiring the lands and ultimately, the
relevant awards emerged.
3. Being aggrieved by and dissatisfied with, such passing of awards, quantifying the
compensation various references under Section 18 of the Land Acquisition Act, have been made
to the learned Additional District Judge, Fast Track Court No.I, Thanjavur. Consequently, the
learned Additional District Judge assessed the value of the land and ultimately, enhanced the
compensation to the tune of Rs.1,000/- (Rupees One Thousand only) per cent in
L.A.O.P.Nos.594 of 1997 and 136 of 1996 from the one assessed by the Land Acquisition
Officer.
4. Consequently, the Land Acquisition Officer preferred several appeals before this Court
and this Court vide judgments dated 23.03.2001, in A.S.Nos.519 and 520 of 1999 and in
A.S.Nos.416 to 418 of 1999, confirmed the judgment of the learned Sub-Judge in assessing
the value of the land at Rs.1,176/- per cent ultimately. The Government preferred Special Leave
Petitions vide Nos.24578-24579 of 2004 before the Honourable Apex Court and in that the
Honourable Apex Court passed order as under:
“ ... Mr.N.N.Goswamy, learned senior counsel, appearing on behalf of the petitioner
submitted before us that though he is not in a position to challenge the statements
contained in the impugned judgments of the High Court, which make it apparent that
the judgments and orders were passed on concession or by consent, there are large
number of other cases of acquisition where the quantum awarded by the Reference Court
has been challenged before the High Court. Those matters are still pending before the
High Court and if the same principle of valuation is applied, the petitioner will suffer
great injustice. His contention is that the lands in respect of which cases are still pending
before the High Court are situate far away from the land in respect of which sale-deed
had been produced as Annexure A-9, as an exemplar as well as the lands subject-matter
of the impugned judgments. The law is fairly well settled that the Court must value the
land acquired having regard to its value applying the statutory guidelines. Lands lying
far away from the lands in respect of which sale deed is produced by way of evidence,
cannot have the same value. The value of such lands may be more or less depending
upon their potentiality and location and having regard to other relevant
considerations which the Court has to keep in mind under the provisions of the Land
Acquisition Act.
We appreciate the submission urged on behalf of the petitioner and, therefore, we clarify
that in all matters still pending before the High Court, it will be open to the petitioner to
challenge the Award of the Reference Court of such grounds as it may be advised, and
without anything more, the impugned judgments in these special leave petitions will not
be treated as a precedent.”
5. These appeals pending before this Court were not the subject-matter of the special leave
petition before the Honourable Apex Court. The Government by way of precaution made
representation before the Honourable Apex Court and got direction as aforesaid that what the
High Court decided on the earlier cited judgments need not be followed as precedents for
deciding the present appeals.
6. The learned counsel for the respondents/land owners would submit that the present
appeals cannot be treated as a separate group from that of the appeals decided as per the aforesaid
cited judgments of the High Court and that there should not be any discrimination among the
equals.
7. The perusal of the judgment of the Honourable Apex Court would demonstrate that it is
not a mere decision of the Honourable Apex Court on facts concerning a different type of case,
but specifically in relation to existing appeals now under consideration before this Court, such
directions were issued to the effect that these appeals shall be dealt with independently de hors
the judgments passed by this Court earlier as cited supra. Hence, in such a case, this Court has to
make an independent approach in these appeals.
8. Accordingly, heard both sides.
9. The Land Acquisition Officer preferred appeals on the following main grounds:
The lower Court committed an error in fixing the market value on Sq. ft basis, even
though, the lands acquired are situated at panchayat limit. The land value should not be assessed
on cent basis also. The lower Court relied on sample sale deeds relating to smaller extent of lands
sold for exorbitant price. There is nothing to show that the house plots sold under the sale deeds
were relied on by the claimants. Those sale deeds were not proved by examining the vendor and
the vendee concerning those sale deeds. The Reference Court has not properly made deductions
towards development charges. The charge has not followed the belt system also. A mere reading
of grounds of appeal would clearly demonstrate that the Land Acquisition Officer never adverted
to the fact that the property is situated in a developing area.
10. At this juncture, I would like to highlight that the grounds of appeal are one sided as
they are oblivious to the existing facts and situations which prevailed at the time of the Land
Acquisition in this case and the fact that the large mass of land was acquired en block for setting
up Air Force Station.
11. The gist and kernel of the earlier approach by this Court was to the effect that the Court
took into account Ex.C.14, the sale deed dated 01.03.1991 executed by one Balusamy in favour of
Dhanalakshmi, in R.S.No.168/8 tranferring an extent of 2,400 sq.ft as a plot for a sum of
Rs.10,800/- (Rupees Ten Thousand and Eight Hundred only). In other words as per Ex.C.14, the
land to an extent of one cent was valued at Rs.1,960/- and out of that 40% was deducted towards
development charges and the land value was arrived at Rs.1,176/- per cent and consequently, the
awards were passed with usual statutory entitlements.
12. The topo sketch relating to the entire land concerned marked in different colours, was
relied on by both sides to highlight the location and other features. In fact, Ex.C-14, which was
taken as a basic document for assessing the value and passing the award, is situated in
S.No.168 just some what nearer to the Thanjavur - Pudukkottai State Public Highway. The said
Ex.C-14, is obviously dated 01.03.1991 whereas in the same year, Section 4(1) notifications were
made as aforesaid. As such, there is some force in the contention of the learned Government
Pleader that Ex.C-14 might have been emerged for such smaller extent purely for the purpose of
getting higher compensation.
13. Furthermore, I am of the view that Ex.C-14 is referred to a smaller extent referring as
plot, but the area intended to be acquired is a vast piece of agricultural land for Air Force Station
at Thanjavur. Hence, in such a case, the normal rule is that when a sale deed referring to a similar
extent of plot is taken as sample one with regard to the vast agricultural land, some reduction
should be made from that sample value. Since there is weighty objections put forth on the
Government side as against Ex.C-14, I am of the considered opinion that Ex.C-13, the sale deed
dated 13.03.1989 which emerged almost two years anterior to such Section 4(1) notifications,
could be relied on. Keeping these factors in mind, on scrutiny of records, it is found that among
the documents already marked, Ex.C-13 dated 13.03.1989 appears to be a document which
would be beyond controversy for the reason that it emerged almost two years anterior to Section
4(1) notifications. Hence, on the side of the Government, there cannot be any objection to it as
though it is a cooked up document for getting higher compensation.
14. Ex.C-13, relates to the sale of a plot of 2,400 sq. feet for a sum of Rs.9,600/- so to say,
at the rate of Rs.4/- per sq.ft in the S.No.168/1 which forms part of the vast land acquired and
accordingly, if worked out as per Ex.C-13, the value per cent of land would come to Rs.1,744/-
(Rupees One Thousand Seven Hundred and Forty-four only). As such two years had elapsed after
the emergence of Ex.C-13 and then only, Section 4(1) notifications emerged. It is therefore
clear that during the year 1991, the value of the land in all probabilities might have got escalated.
A mere perusal of the sketch and the relevant available records speaks that it is a fast developing
area. Considering the purpose of acquisition for setting up the Air Force Station, having the entire
land as the one block, there need not be any discrimination relating to the various portions of the
same one block of land. It is also evident and obvious that the land acquired had the potentiality
of becoming plots as the sample sale deeds filed on the side of the claimants itself would
demonstrate the same. The fact also remains that Tamil University is already existing in the
vicinity and the National Highway namely Thanjavur – Pudukkottai road is cutting across the
huge mass of land acquired by the Government under these land acquisition proceedings.
15. The Sub-Court in its common judgment relied on the earlier judgment of this Court
dated 23.03.2001, in A.S.Nos.519 and 520 of 1999, in fixing the value at Rs.1,17,000/- per acre
in connection with the appeals filed by some land owners relating to the same area which
happened to be the subject matter of one and the same set of notification.
16. The Sub-Court relied on Ex.C-3, the copy of the judgment of this Court dated
23.03.2001. De hors that, independently the Sub-Court also gave its finding that the land
acquired is in a developing area as the State Highway is running across the said land; Tamil
University is situated very near to it and the Tamil Nadu Paddy Research Institute are all
situated. This Court in the judgment dated 23.03.2001, in A.S.Nos.519 and 520 of 1999, at
paragraph No.7 held as under:
“7. It is evident from a perusal of the records that Tamil University, Paddy
Processing Research Centre, Thanjavur Textiles, Tantex, Kamala Subramaniam
Matriculation School and the present Air Force Station, apart from other
residential areas are very nearer to the acquired lands which situate in the main
road referred to above. The said facts would lead to conclude that there is
potentiality for the acquired lands from the claimants, by the Government of
Tamil Nadu. The market value has to be arrived at not only taking into
consideration of the potentiality of the land but also the purpose for which the
said lands were acquired. As already pointed out, the piece of land sold under
Ex.A.9 dated 01.03.1991 had fetched Rs.4.50 per square foot.”
17. The Land Acquisition Officer also in the counter filed before the Sub Court would
state that the aforesaid Institutions along with Matriculation Schools and Industrial Workers
Quarters are all situated about 2 - 3 Kms away from the land acquired and that the land acquired
is situated 5 Kms from the Thanjavur Municipal area. Even assuming for argument sake, what
the Land Acquisition Officer has stated is true, a distinction is sought to be made by the Land
Acquisition Officer relating to the land acquired from the developed area cannot be treated
as adverse factors. The land acquired is a vast tract of land and in such a case, the developed
areas which are allegedly 2 - 3 Kms away from the land acquired, cannot be taken as adverse
factors. Thanjavur Municipality is situated with 5 Kms and that should be taken as a plus point in
favour of the appellant and not an adverse one.
18. The Sub-Court as well as the High Court clearly and categorically pointed out that the
sample deeds relied on by the Land Acquisition Officer for assessing the market value are having
no proximity to the land acquired and that the fixation of Rs.220/- per cent was totally without
any basis. The alleged thirty sample sale deeds which emerged within three years anterior to
Section 4(1) notifications, as per the findings of the Sub-Court as well as the High Court
were not reflecting the true market value. Those thirty sale deeds as per the earlier findings
were ignored. Even during arguments before me, on the Government side, it has not been
shown as to how the value arrived at by the Land Acquisition Officer was in order and that too
ignoring the sale deeds relied on by the claimants. As such, the increase in the value of land
would have been more during the year, 1991 from that of the year, 1989 to which Ex.C-13
relates. Robust common sense warrants to take the value for smaller extent in the year, 1989, as
to yardstick for assessing larger extent in the year, 1991 in the same vicinity. If in the year, 1989,
the yardstick must be lesser than what is contemplated in Ex.C-13 for assessing larger extent, but
for choosing the yardstick in the year, 1991, for larger extent, no lesser amount need be taken in
view of increase in value of smaller extent. As such, accordingly if worked out, per cent it
comes to the same value of Rs.1,744/- for assessing the larger extent in the year, 1991 during
which Section 4(1) notifications were published.
19. Both sides are not in a position to point out that there are other sale deeds in the same
vicinity which would reflect the true market value of the land before the publication of Section
4(1) notifications. Even though there is larger extent of land situated to the east of the said Public
Highway, clinching documents are not available and documents relating to S.No.168 situated to
the west side of the road alone are available and among those documents, Ex.C-13 is chosen,
whereas earlier Ex.C-14, was chosen by this Court while delivering judgments as aforesaid and
that turned out to be no more precedent in view of the direction of the Honourable Apex Court as
set out supra.
20. This Court is fully aware of the fact that normally sample sale deed should relate to a
land in the same vicinity and near the place where the lands are acquired. Here, all the aforesaid
notifications were published relating to one block of land for setting up Air Force Station
and in such a case, taking into account the purposes of acquisition, i.e., only one purpose, one of
the same type of valuation can be taken up and there need not be any discrimination. In fact, the
land in S.No.168 forms part of the aforesaid Section 4(1) notifications. Hence, in such a big mass
of land, when the area covered under the sample sale deed Ex.C-13 has also been acquired as part
of the larger area, then there cannot be any plausible objection.
21. In this connection, the learned counsel for the claimants would cite the decision of the
Honourable Apex Court in K. Periasami v. Sub Tehsildar (Land Acquisition) reported in (1994) 4
SCC 180 and develop his argument to the effect that there should not be any discrimination in
awarding the compensation between two Benches of the same High Court. Such an argument
cannot be countenanced in view of the order of the Honourable Apex Court in Special Leave
Petition Nos.24578-24579 of 2004, referred to supra.
22. The learned Counsel for the claimants could cite the decision of the Honourable Apex
Court in Smt. Lila Ghosh (dead) through LRs. v. The State of West Bengal reported in Supreme
Court Judgments on Land Acquisition (1994-2004) Volume II page No.2053. An excerpt from it,
would run thus:
“5. We are of the opinion that this was not a fit case for application of the belting
method. The acquisition was of land on which a film studio stood. The
acquisition was for the purposes of the film studio. It was a compact block of
land which was acquired for a specific purposes. The land was not acquired for
development into small plots where the value of plots near the road would have a
higher value whilst those further away from may have a compact blocks is
acquired the belting method would not be the correct method.”
As such, it is clear that the aforesaid observations made by the Honourable Apex Court is
squarely applicable to this case also.
23. The catena of decisions relating to the compensation in land acquisition cases would
mandate that the sales relating to small pieces of lands, if they are genuine and reliable and
comparable to the land acquired, the same could be relied on. In this regard, the decision of
the Honourable Apex Court in Basavva v. Spl. Land Acquisition Officer reported in (1996) 9
SCC 640, could rightly be relied on as cited by the learned counsel for the claimants. An excerpt
from it, would run thus:
“3. Having given our consideration, the question that arises for consideration is
whether the High Court has committed any error of law in fixing the
compensation at the rate of Rs.56,000/- per acre? On the principle of deductions
in the determination of the compensation, this Court in K.Vasundara Devi v.
Revenue Divisional Officer, LAO, (1995) 5 SCC 426, has considered the entire
case law and has held that the Court, in the first instance, has to consider
whether sales relating to smaller pieces of lands are genuine and reliable and
whether they are in respect of comparable lands. In the event the Court finds that
such sales are genuine and reliable and the lands have comparable features,
sufficient deduction should be made to arrive at the just and fair market value of
large tracts of land. The time-lag for real development and the waiting period for
development are also relevant consideration for determination of just and
adequate compensation. Each case depends upon its own facts. For deduction of
development charges, the nature of the development, conditions and nature of
land, the land required to be set apart under the building rules for roads,
sewerage, electricity, parks, water etc. and all other relevant circumstances
involved are to be considered. In this case, the facts recorded by the High Court
are that Ex.P-10 sale deed is dependable sale but it is in respect of a small plot of
land situated at a distance of more than 1 Km. It is also found that the land in the
area is not developed and there is no development in those lands though the lands
are capable of being used for non-agricultural purpose. On those findings the
High Court held that the market value under Ex.P-10 cannot form the sole basis
but keeping in view the developments the lands are capable of fetching
compensation at the rate of Rs.56,000 after deducting 65%. For developmental
charges, that deduction between 33-1/3 to 53% was held to be valid by this Court
in several judgments. In Vasundara Devi case 63% deduction was upheld. In
view of the fact that development of land would have taken years, the High Court
has deducted another 12%. Obviously, the High Court kept in view the fact that
the lands under Ex.P-10 were situated at far-flung places from the lands under
acquisition and since the land takes long time for development it has given
additional deduction of 12%, i.e. 53 + 12% = 65% in determination of the
compensation. On the basis of the rationale referred to above, the principle
adopted by the High Court cannot be said to be illegal. Thus considered, we hold
that there is no justification for interference in the finding recorded by the High
Court or to further increase the compensation.”
24. Relating to the deduction is concerned, previously 40% was deducted towards the
developmental charges. While the Court exercising the power to effect deduction towards
development expenditure, it should take into account the purpose for which the land is being
acquired and it has become a trite proposition of law over which there is no controversy. For
setting up the Air Force Station, the ground should be levelled and the major part of the area
should be cemented and various other amenities should be installed before putting that land
into use as Air Force Station.
25. Hence, in this view of the matter, adhering to the decision of the Honourable Apex
Court in Basavva v. Spl. Land Acquisition Officer reported in (1996) 9 SCC 640, I am of the
considered opinion that 53% should be deducted from the value of the land arrived at Rs.1,744/-
per cent. As such, the following formula emerges:
The value of the
land acquired - Rs.1,744.00 per cent
(-)
53% deduction towards
development charges - Rs. 924.32 per cent
The net value of the land
for awarding compensation - Rs. 819.68 per cent
26. Accordingly, the net value of the land for awarding compensation after deducting 53%
towards developmental charges, is arrived at Rs.819.68/- per cent which could be rounded to
Rs.820/- per cent (Rupees Eight Hundred and Twenty only). Accordingly, if worked out, the net
value of the land per acre would come to Rs.82,000/- (Rupees Eighty-two Thousand only).
27. The claimants are also entitled to statutory entitlements over which there is no dispute.
For the enhanced amount in the award, the claimants are entitled to get solatium as well as
interest on the additional amount.
28. The learned counsel for the claimants cited the decision of the Division Bench of this
Court in Sub-Collector, Padmanabhapuram v. R.S. Raveendran reported in 2006 (2) LW 102 and
an excerpt from it, would run thus:
“10. It is also relevant to note that Section 53 of the Land Acquisition Act, 1894
makes it clear that the provisions of Code of Civil Procedure, 1908 are
applicable to all proceedings initiated under the said Act (Land Acquisition
Act). In view of the same, it is not in dispute that Order XLI, Rule 33, C.P.C. is
applicable to the land acquisition proceedings. Inasmuch as the appeal is also
continuation of the original proceedings, the said provisions are applicable
to the appeals also and in view of the law laid down by the Apex Court as well as
this Court in Sunder v. Union of India, interest is payable for the solatium
amount, and in order to render substantial justice, we accept the request of the
counsel for respondents/claimants and hold that the solatium amount also carries
interest at the same rate as applicable to the enhanced compensation and
additional amount.”
29. As such, adhering to the aforesaid decision, the claimants are entitled to appropriate
interest on the solatium as well as the additional amount awarded. Accordingly, these appeals are
disposed off by this common judgment. The Government shall deposit the amount in the
interest of both sides within a period of six months from this date. No costs. Consequently,
connected miscellaneous petitions are closed.
Appeals disposed off.

[2008 (1) T.N.C.J. 873 (SC)]


SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.
GANAPATI MADHAV SAWANT (DEAD) THROUGH HIS LRS. ...Petitioner
Versus
DATTUR MADHAV SAWANT ...Respondent
[Civil Appeal No. 583 of 2008 (Arising out of SLP (C) No. 18522 of 2004), decided on 22 nd
January, 2008]
Civil Procedure Code, 1908—Order XX, Rule 12—Mesne profit—Grant of, without
any inquiry—Permissibility of—In the absence of any specific prayer for any inquiry into
that aspect, the same could not have been granted—Appeal allowed—Matter remitted to
the High Court to consider such aspect.
(Paras 4, 7 to 9)
Case law.—AIR 1952 SC 358.
Important Point
Grant of mesne profit without an inquiry in terms of Order XX, Rule 12, CPC is not
permissible.
JUDGMENT
DR. ARIJIT PASAYAT, J.—Leave granted.
2. Challenge in this appeal is to the order passed by a learned Single Judge of the Bombay
High Court Aurangabad Bench, dismissing the appeal filed by the appellant under Section 100 of
the Code of Civil Procedure, 1908 (in short the “CPC”). The appellants, heirs of the
original defendant Nos. 1 to 3 questioned correctness of the decree and judgment passed by
learned Additional District Judge, Osamabad in Regular Civil Appeal No. 89 of 1999 confirming
the decree in Regular Civil Suit No. 62 of 1981 passed by the Civil Judge, Jr. Division, Kallam.
The High Court dismissed the second appeal holding that there was no question of law involved
and therefore, the second appeal was without merit.
3. Learned counsel for the appellant submitted that while issuing notice in the second
appeal, the High Court categorically observed as follows:
“The next ground argued by the learned counsel for the appellant is that the plaintiff did
not pray for an inquiry with the mesne profit to be held under Order XX, Rule 12 in the
plaint and in the absence of specific prayer for an inquiry into the mesne profits the same
should not have been granted by the Courts below. The said directions is contained in
clause IV in the operative part of the judgment and decree of the trial Court. The learned
counsel for the appellant has placed reliance of the judgment of the Apex Court reported
in AIR 1952 SC 358, Mohammad Amin and others v. Vakil Ahmed and others and to
precise para 20 thereof. In this view of the matter issue notice before admission
returnable in six weeks touching only clause IV of the operative part of the order passed
by the trial Court directing the inquiry in regard to mesne profits under Order XX, Rule
12. The respondents be intimated that the appeal will be finally heard and decided at
admission stage.”
4. It was, therefore, pointed out that the grant of mesne profit without any enquiry in
terms of Order XX, Rule 12, CPC was not permissible.
5. There is no appearance on behalf of respondent.
6. In Mohammad Amin and others v. Vakil Ahmed and others, AIR 1952 SC 358, it was,
inter-alia, observed as follows.
“It was however pointed out by Shri S.P. Sinha that the High Court erred in awarding to
the plaintiffs mesne profits even though there was no demand for the same in the plaint.
The learned Solicitor General appearing for the plaintiffs conceded that there was no
demand for mesne profits as such but urged that the claim for mesne profits would be
included within the expression ‘awarding possession and occupation of the property
aforesaid together with all the rights appertaining thereto.’ We are afraid that the claim
for mesne profits cannot be included within this expression and the High Court was in
error in awarding to the plaintiffs mesne profits though they had not been claimed in the
plaint. The provision in regard to the mesne profits will therefore have to be deleted from
the decree. We dismiss the appeal of defendants 1 to 5 and affirm the decree passed by
the High Court in favour of the plaintiffs, deleting therefrom the provision in regard to
mesne profits. The plaintiffs will of course be entitled to their costs throughout from
defendants 1 to 5.”
7. The High Court while deciding the second appeal, failed to notice that while issuing
notice it was categorically noted that the plaintiff had not prayed for an inquiry relating to
mesne profit in terms of Order XX, Rule 12, CPC and in the absence of any specific prayer for
any inquiry into that aspect, the same could not have been granted.
8. As rightly contended by learned counsel for the appellants that though at the time of
issuance of notice the High Court had noted that this substantial question of law did arise for
consideration, while deciding the second appeal, this aspect was lost sight of. In the
circumstances it would be appropriate to remit the matter to the High Court to consider that
aspect.
9. The appeal is allowed to the aforesaid extent with no order as to costs.
Appeal allowed.

[2008 (1) T.N.C.J. 875 (SC)]


SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.
RAVI PRAKASH AGARWAL AND OTHERS ...Petitioners
Versus
RAJESH PRASAD AGARWAL AND OTHERS ...Respondents
[Civil Appeal No. 1668 of 2008 (Arising out of SLP (C) No. 16312 of 2006), decided on 29 th
February, 2008]
Civil Procedure Code, 1908—Order XLI, Rule 1 (r)—Appeal—Status quo—
Maintenance of, till disposal of suit directed on certain conditions—Consent order
passed on 24-11-2001—Appeal dismissed holding prayer for interim injunction—Legality of
— Order of status quo continued for considerable length of time—Appropriate to direct
maintenance of status quo as was originally granted by order dated 24.11.2001—Trial Court
directed to dispose of the suit as early as practicable preferably by the end of 2008—
Appeal disposed of. (Paras 4 to 8)
JUDGMENT
DR. ARIJIT PASAYAT, J.—Leave granted.
2. Challenge in this appeal is to the order of a Division Bench of the Allahabad High Court
in First Appeal under Order XLI, Rule 1 (r) of the Code of Civil Procedure, 1908 (in short
‘CPC’).
3. Backgrounds facts in a nutshell are as follows:
The appellants as plaintiffs filed a suit (Suit No.445 of 1999) for three reliefs:
(i) The sale-deed executed by defendant-respondent No.1 on 22.2.1999 in favour of
defendant-respondent No.3 be declared as void.
(ii) a permanent injunction be issued restraining the defendants from dispossessing the
plaintiffs from the property in dispute.
(iii) Another permanent injunction restraining the defendants Nos. 1, 2 and 4 from letting,
selling and disposing of the property.
4. An application for injunction was also filed. On 4.5.1999 ex-parte order of
injunction was granted. The prayer to modify the same was rejected. On 24.11.2001 a consent
order was passed by the Division Bench of the High Court. The Division Bench directed disposal
of the suit within six months and further directed maintenance of status quo of the suit property
till its disposal on certain conditions. Subsequently, application was filed by respondent No.4 by
making a grievance that her counsel was not heard. It is the stand of the appellants that her
defence was struck off. In any event the order was recalled on 9.1.2002. High Court dismissed the
appeal holding prayer for interim injunction.
5. It is stated by learned counsel for the appellants that the order of status quo continued
for nine years and by the impugned order the position has been changed. The conditions
stipulated are really of no consequential relevance, as in that case during pendency of the case
there may be a necessity for impleading the vendees.
6. Learned counsel for the respondents on the other hand, submitted that the order is really
one of concurrence and, therefore, there was no need to repeat the reasoning.
7. We find that the order of status quo continued for considerable length of time. It would,
therefore, be appropriate to direct maintenance of status quo as was originally granted by order
dated 24.11.2001. We make it clear that by giving this protection it shall not be construed as if we
have expressed any opinion on the merits of the case. We request the Trial Court to dispose of
the suit as early as practicable preferably by the end of 2008.
8. The appeal is accordingly disposed with no order as to costs.
Appeal disposed of.

[2008 (1) T.N.C.J. 877 (SC)]


SUPREME COURT
BEFORE:
S.B. SINHA AND V.S. SIRPURKAR, JJ.
P. SWAROOPA RANI ...Petitioner
Versus
M. HARI NARAYANA @ HARI BABU ...Respondent
[Civil Appeal No. 1734 of 2008 (Arising out of SLP (Civil) 15670 of 2006) with Civil Appeal
No….. 2008 (arising out of SLP (Civil) No. 16215 of 2006), decided on 4th March, 2008]
(A) Practice and procedure—Civil proceedings and criminal proceedings can
proceed simultaneously. (Para 13)
(B) Appeal—Against the judgment and decree dismissing the suit for specific
performance of the contract—Interim stay— Direction to the effect that petitioner shall
be entitled to remain in possession of the schedule theatre subject to condition—
Criminal proceeding initiated on the basis of a fabricated document filed in the civil
suit—Investigation of criminal case stayed by the High Court—Sustainability of—Filing of
an independent criminal proceeding although initiated in terms of some observations
made by Civil Court is not barred under any statute—Impugned order unsustainable—Set
aside—High Court requested to hear the appeal as early as possible.
(Paras 15 to 18)
Case law.—2005 (4) SCC 370; AIR 1954 SC 397; 2005 (12) SCC 226; 2004 (13) SCC
421.
Counsel.—Mr. V.R. Reddy and Mr. P.S. Narsima, for the appellants; Mr. Bhaskar
Gupta, for the respondent.
Important Point
In law simultaneous proceedings of a civil and a criminal case is permissible.
JUDGMENT
S.B. SINHA, J.—Leave granted.
2. Appellant is the owner of a cinema theatre. An agreement of sale dated 28.03.2001 was
entered into by and between the parties hereto in respect of the said property for a consideration
of Rs. 64 lakhs. Respondent made part payment of Rs. 32,97,000/- of the said amount. A
suit for specific performance of the contract was filed as no deed of sale was executed in terms of
the said agreement dated 28.03.2001.
3. During hearing of the said suit, a receipt was filed showing payment of a sum of Rs.
4,03,000/- to the appellant herein. The said receipt was marked as Exhibit A.15. On the said
basis, allegedly, possession of the theatre was obtained by the respondent. The learned Trial
Judge, however, dismissed the said suit by an order dated 29.04.2006 inter alia opining:
“45. Therefore, in the circumstances I find that there is no evidence produced by the
plaintiff which is sufficient to outweigh the opinion and the evidence of D.W.4.
Further it is to be seen that though after execution of Ex. A.15 he came to know
about huge debts by defendant under the said mortgage deeds, taxes dues and
other statutory liabilities and that defendant were not co-operating and
adopted evasive attitude in clearing the debts, dues and other liabilities and were
not allowing him to discharge the mortgage debt to the Union Bank of India, he
kept quite till filing of the suit, without even issuing a notice to the defendant.
Even if he was in possession as claimed by him with effect from the date of
Ex.A.15, in view of the huge debts and liabilities, which to his knowledge the
defendant was not in a position to discharge and not making any efforts to
discharge the same he would not have kept quite in the normal circumstances
without issuing any notice to the defendant. Thus there is no mention about
this Ex.A.15 dated 18.09.2002 in the written form anywhere till he filed the
plaint on 05.12.2002. Therefore, these circumstances also render the oral
evidence of P.W.1 and P.W.2 highly doubtful on this aspect. Therefore, in
these circumstances I find that the evidence of D.W.4 and the contents of Ex.C.4
opinion and Ex.C.5 reasons for opinion are sufficient to prove that the signature
of D.W.1 is forged in Ex.A.15. Therefore in the circumstances it shall be held
that the contention of the plaintiff and the evidence of P.W.1 that on 18.09.2002
he paid Rs. 4,03,000/- towards part of sale consideration and D.W.1 delivered
possession of plaint schedule theater to him is not true. Therefore, in the
circumstances it also shall be held that the plaintiff failed to prove that he came
into possession of the plaint schedule property in pursuance of the part
performance of the contract covered by Ex.A.4.”
It was furthermore opined:
“Therefore, following this decision of the Honourable High Court of Andhra Pradesh it
shall be held that the plaintiff, since failed to prove that he paid Rs. 4,03,000/- towards
part payment of sale consideration of D.W.1 and she delivered possession of plaint
schedule to him on 18.09.2002 and passed Ex.A.15 receipt. It shall be held that though
the time is not the essence of the contract and the plaintiff is justified in not making
further remaining part of sale consideration by 31.12.2001, since he approached the Court
with unclean hands he cannot be granted a decree for specific performance. Since it is a
specific case that he came into possession of plaint schedule property in part performance
of Ex. A.4 agreement of sale, on 18.09.2002 under Ex. A.15 and failed to prove the same,
it is irrelevant and not necessary to decide how he came into possession of the plaint
schedule property. Therefore, in the circumstances he is also not entitled for protection
under Section 53-A of Transfer of Property Act and hence is not entitled to seek
perpetual injunction.”
4. Appellant, in view of the said observations, lodged a First Information Report,
which was marked as Crime No. 79 of 2006, in the Kadapa Police Station alleging that the said
receipt (Ex. A.15) was a fabricated document.
5. Respondent, however, preferred an appeal against the said judgment and decree dated
29.04.2006. In the said appeal preferred by the respondent, an application for interim stay of the
operation of the said judgment was filed. A Division Bench of the High Court by a judgment
and order dated 24.05.2006 directed:
“Going by the principle that an appeal is a continuation of the suit and the state of affairs
obtaining during the pendency of the suit must be continued, as far as possible, during the
appeal also, we grant an interim direction to the effect that the petitioner shall be entitled
to remain in possession of the suit schedule theatre, subject to the condition that it shall
deposit a sum of Rs. 30,000/- (Rupees thirty thousand only) per month, commencing
from June 2006, until further orders. It shall also be open to the respondent to withdraw
the amount without furnishing any security.”
6. Respondent filed miscellaneous petition in the said appeal, being ASMP No. 995 of
2006, for modification of the order dated 24.05.2006, which was allowed by an order dated
17.07.2006.
7. By another order dated 17.07.2006, the High Court stayed the proceedings in Crime No.
79 of 2006.
8. Appellant is, thus, before us.
9. Mr. V.R. Reddy, learned senior counsel appearing on behalf of the appellant in civil
appeal arising out of SLP (C) No. 15670 of 2006, would submit that the High Court committed a
serious illegality in staying the investigation of a criminal case.
10. Mr. P.S. Narsima, learned counsel appearing on behalf of the appellant in civil appeal
arising out of SLP (C) No. 16215 of 2006, would submit that keeping in view the observations
made by the learned Trial Judge and furthermore in view of the fact that the respondent had not
approached the Court with clean hands, no interim order in his favour should have been passed.
11. Mr. Bhaskar Gupta, learned senior counsel appearing on behalf of the respondent,
on the other hand, submitted that the court has power to grant injunction even in respect of a
proceeding which is stricto sensu not the subject matter of the proceedings before the High Court.
12. The High Court indisputably is a final Court of fact. It may go into the correctness or
otherwise of the findings arrived at by the learned Trial Judge. A’ fortiori it can set aside the
findings of the Court below that the Ex. A.15 is a forged document or its authenticity could not be
proved by the respondent.
13. It is, however, well-settled that in a given case, civil proceedings and criminal
proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings
shall be stayed depends upon the fact and circumstances of each case. [See M.S. Sheriff v. State
of Madras, AIR 1954 SC 397, Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370
and Institute of Chartered Accountants of India v. Assn. of Chartered Certified Accountants,
(2005) 12 SCC 226]
14. It is furthermore trite that Section 195(1)(b)(ii) of the Code of Criminal Procedure
would not be attracted where a forged document has been filed. It was so held by a Constitution
Bench of this Court in Iqbal Singh Marwah (supra) stating:
“25. An enlarged interpretation to Section 195(1)(b)(ii), whereby the bar created by
the said provision would also operate where after commission of an act of
forgery the document is subsequently produced in Court, is capable of great
misuse. As pointed out in Sachida Nand Singh after preparing a forged
document or committing an act of forgery, a person may manage to get a
proceeding instituted in any Civil, Criminal or Revenue Court, either by
himself or through someone set up by him and simply file the document in the
said proceeding. He would thus be protected from prosecution, either at the
instance of a private party or the police until the Court, where the document
has been filed, itself chooses to file a complaint. The litigation may be a
prolonged one due to which the actual trial of such a person may be delayed
indefinitely. Such an interpretation would be highly detrimental to the interest of
the society at large.
26. Judicial notice can be taken of the fact that the Courts are normally reluctant to
direct filing of a criminal complaint and such a course is rarely adopted. It will
not be fair and proper to give an interpretation which leads to a situation where a
person alleged to have committed an offence of the type enumerated in clause (b)
(ii) is either not placed for trial on account of non-filing of a complaint or if a
complaint is filed, the same does not come to its logical end. Judging from such
an angle will be in consonance with the principle that an unworkable or
impracticable result should be avoided. In Statutory Interpretation by Francis
Bennion (3rd Edn.), para 313, the principle has been stated in the following
manner:
“The Court seeks to avoid a construction of an enactment that produces an unworkable or
impracticable result, since this is unlikely to have been intended by Parliament.
Sometimes, however, there are overriding reasons for applying such a
construction, for example, where it appears that Parliament really intended it or the
literal meaning is too strong. “
In regard to the possible conflict of findings between Civil and Criminal Court, however,
it was opined:
“32. Coming to the last contention that an effort should be made to avoid conflict of
findings between the Civil and Criminal Courts, it is necessary to point out
that the standard of proof required in the two proceedings are entirely
different. Civil cases are decided on the basis of preponderance of evidence while
in a criminal case the entire burden lies on the prosecution and proof beyond
reasonable doubt has to be given. There is neither any statutory provision nor
any legal principle that the findings recorded in one proceeding may be
treated as final or binding in the other, as both the cases have to be decided on
the basis of the evidence adduced therein.”
It was concluded:
“33. In view of the discussion made above, we are of the opinion that Sachida Nand
Singh has been correctly decided and the view taken therein is the correct view.
Section 195(1)(b)(ii), Cr.P.C. would be attracted only when the offences
enumerated in the said provision have been committed with respect to a
document after it has been produced or given in evidence in a proceeding in any
Court i.e. during the time when the document was in custodia legis.”
15. Filing of an independent criminal proceeding, although initiated in terms of some
observations made by the Civil Court, is not barred under any statute.
16. The High Court, therefore, in our opinion, was not correct in staying the investigation
in the said matter.
Reliance has been placed by Mr. Gupta on Mahar Jahan and others v. State of Delhi and
others, (2004) 13 SCC 421, wherein this Court was dealing with a proceeding under Section 145
of the Code of Criminal Procedure. This Court noticed that a civil dispute was given the colour
of a criminal case. As therein a proceeding under Section 145 of the Code of Criminal Procedure
was pending, when a civil suit was also pending before a competent Court of law, it was
opined:
“4. It is not disputed by the learned counsel for the parties that this very property
which is the subject-matter of these criminal proceedings is also the subject-
matter of the civil suit pending in the Civil Court. The question as to
possession over the property or entitlement to possession would be determined
by the Civil Court. The criminal proceedings have remained pending for about
a decade. We do not find any propriety behind allowing these proceedings to
continue in view of the parties having already approached the Civil Court.
Whichever way proceedings under Section 145, Cr.P.C. may terminate, the
order of the Criminal Court would always be subject to decision by the Civil
Court. Inasmuch as the parties are already before the Civil Court, we deem it
proper to let the civil suit be decided and therein appropriate interim order be
passed taking care of the grievances of the parties by making such arrangement
as may remain in operation during the hearing of the civil suit.”
It was furthermore observed:
“7. We have simply noted the contentions raised by the parties. The Civil Court,
in our opinion, would be the most appropriate forum to take care of such
grievances and pass such interim order as would reasonably protect the interests
of both the parties. The Civil Court may issue an ad interim injunction, may
appoint a Commissioner or Receiver or may make any other interim
arrangement as to possession or user of the property which is the subject-matter
of proceedings in the Civil Court exercising the power conferred on it by
Sections 94 and 151 of the Code of Civil Procedure.”
It was, therefore, a case where this Court quashed a proceeding under Section 145 of the
Code of Criminal Procedure as the matter pending before it arose out of a civil proceedings.
Such observations were made keeping in view the fact that possession of the parties over the
property in suit was in question.
17. The impugned order, therefore, cannot be sustained which is set aside accordingly.
Civil appeal arising out of SLP (C) No. 15670 of 2006 is allowed.
18. We, however, are of the opinion that the High Court should be requested to hear the
appeal as early as possible and preferably within a period of three months from the date of receipt
of a copy of this order. This, however, may not be taken to mean that we have entered into the
merit of the matter.
19. It goes without saying that the respondent shall be at liberty to take recourse to such a
remedy which is available to him in law. We have interfered with the impugned order only
because in law simultaneous proceedings of a civil and a criminal case is permissible.
20. In view of the aforementioned observations, we are of the opinion that the interim
order dated 24.05.2006 as modified by an order dated 17.07.2006 need not be interfered with
particularly in view of the fact that according to the respondent it had made a payment of Rs.
35,47,000/- besides the disputed payment of Rs. 4,03,000/- and made deposits of Rs.
67,54,088/-.
21. For the reasons aforementioned, civil appeal arising out of SLP (C) No. 16215 of 2006
is dismissed.
Ordered accordingly.

[2008 (1) T.N.C.J. 884 (SC)]


SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.
SALEKH CHAND (DEAD) BY LRS. ...Petitioner
Versus
SATYA GUPTA AND OTHERS ...Respondents
[Civil Appeal No. ……. of 2008 (Arising out of S.L.P. (C) No. 1380 of 2002), decided on 4 th
March, 2008]
(A) Hindu Law—Custom—Incumbent on party setting up a custom to allege and
prove on which he relies—Custom cannot be extended by analogy—Must be established
inductively and not by a priori methods—Custom cannot be enlarged by parity of
reasoning. (Para 6)
(B) Custom—A rule which in a particular family or a particular class, or
community or in a particular district has from long use, obtained the force of law—A
custom derives its force from the evidence from long usage having obtained the force of law.
(Para 6)
(C) Adoption—Conditions of—For a valid adoption, not only the person adopting
should be capable of lawfully taking in adoption, but the person giving must be capable of
lawfully giving in adoption and the person adopted must be capable of being lawfully
taken in adoption. (Para 7)
(D) Hindu Law—Adoption of real sister’s son—Whether a custom existed in the
Vaish community—Evidence of three witnesses—One did not speak about any custom—
Another did not speak about any custom though he claimed to be present at the time of
adoption—Yet another witness is outsider of the family—Having no personal knowledge
about the custom—Theory of custom only hearsay—High Court found that there was no
prevalent custom permitting adoption of sister’s son—Appeal is sans merit—Dismissed.
(Paras 3, 6 and 7)
Case law.—AIR 1963 SC 185; AIR 1954 SC 581; AIR 1933 PC 155; AIR 1959 SC 504;
AIR 1928 Mad 299 (FB).
Important Point
A custom may be proved by general evidence as to its existence by members of the tribe or
family who would naturally be cognizant of its existence and its existence without controversy
and such evidence may be safely acted on when it is supported by a public record of custom such
as Riwaj-i-am or Manual of Customary Law.
JUDGMENT
DR. ARIJIT PASAYAT, J.—Second appeal filed by the defendants having been allowed by
the learned Single Judge of the Allahabad High Court one of the plaintiffs Salekh Chand has filed
this appeal. The legal heirs of the another plaintiff Om Prakash who died on 28.2.1998
(proforma respondent No.4) have been impleaded in this appeal. Om Prakash’s widow Smt.
Ram Kumari died on 2.6.1999 and, therefore, their son Munna Lal is proforma respondent
No.4.
2. Background facts in a nutshell are as follows:
A suit filed by the plaintiffs Om Parkash and present appellant Salekh Chand was
dismissed by learned Additional Civil Judge, Ghaziabad in Suit No.699/84. Learned Additional
District Judge, Ghaziabad reversed the judgment and decree dated 5.3.1990 by judgment
and decree dated 22.2.1998. The plaint averments refer to the following facts:
Om Prakash and Salekh Chand filed Suit No.699 of 1984 against Smt. Satya Gupta and
one Brijesh Kumar. Shiv Om Banshal and Mahendra Kumar Banshal (respondent Nos. 2 and 3 in
this appeal) were impleaded as defendant Nos. 3 and 4. The plaint allegations were that House
No. 104 (old number) with its new numbers 175 and 176 described in the plaintbelonged to one
Pares Ram who had four sons namely, Jagannath, Dina Nath, Anand Swaroop and Battu Mal.
The pedigree was as follows:
PEDIGREE
PARES RAM

Jagannath Dina Nath Anand Swaroop Battu Mal


(died issueless)

Chandra Bhan Surendra Kumar


(adopted son) (son)
Smt. Shanti Devi
Chawali Devi Satya Gupta Brijesh Kumar
(widow) (daughter) (adopted son)
defendant No.1 defendant No.2
Dina Nath died issueless out. During his lifetime he had sold his 1/4th share to Battu Mal.
Surendra Kumar and his mother (widow of Anand Swaroop) had sold their 1/4th share to Smt.
Satya Gupta by registered sale-deed. Brijesh Kumar defendant No.2 is the adopted son of
Battu Mal. On the death of Jagannath his son Chandra Bhan succeeded to share of Jagannath in
the suit property. On the death of Chandra Bhan his widow succeeded to the suit property. She
executed a sale-deed dated 26.7.1979 of her share in the suit property. Thus the plaintiffs are co-
sharers of 1/4th share in the suit property whereas defendant Nos.1 and 2 are co-sharers of 3/8
share each in the suit property. It is alleged that Jagannath had no issue. He had adopted Chandra
Bhan who happens to be the son of his real sister and the sister’s husband’s name was also
Jagannath. Ceremony of adoption was performed in accordance with the customs of the
community prevalent among the parties in the month of Falgun Samvat 1985. There was a
custom in the community of the co-sharers to adopt sister’s son and Smt. Shanti Devi was wife of
Chandra Bhan. The plaintiffs wanted to get the suit property partitioned and have their separate
1/4th share in the suit property. On the above pleadings the relief claimed was that the suit
property be partitioned by metes and bounds and the plaintiffs be given possession on the
separate share allotted to them. Defendant No.2 did not file any written statement and suit
against him proceeded ex-parte.Defendant No.1 (present respondent No.1) and defendant Nos. 3
and 4 contested the suit by filing separate written statements. Defendant No.1 in her written
statement denied the claim of the plaintiffs and it was pleaded that plaintiff No.1 Om Prakash was
tenant of Smt. Chawali Devi on part of the land of the disputed property at the rate of Rs.65/- per
month as rent. He inducted plaintiff No.2 as subtenant. Smt. Chawali Devi, mother of
defendant No.1 Smt. Satya Gupta succeeded to the share of Chawali Devi in the suit property.
She filed suit No.31 of 1985 for ejectment of the plaintiffs, which was then pending. The family
pedigree was accepted subject to the correction that Chandra Bhan and Shanti Devi were wrongly
shown as son of Jagannath and widow of Chandra Bhan. Jagannath died issueless. Likewise
Battu Mal had not adopted any son, Brijesh Kumar, and defendant No.2 Brijesh Kumar was not
adopted son of Battu Mal. At the time of his death, Battu Mal was owner of the entire suit
property and on his death his widow Smt. Chawali Devi became owner in possession and on
Chawali Devi’s death, defendant No.1 Smt. Satya Gupta being her daughter became owner in
possession of the entire suit property. The plaintiffs and other defendants have no share in
the suit property. The sale-deed executed by Smt. Shanti Devi in favour of the plaintiffs is null
and void. Jagannath had not adopted Chandra Bhan son of his sister and according to the Hindu
custom in ‘Vaish’ community sister’s son cannot be adopted. No such custom was prevalent in
the ‘Vaish’ community of Hapur. Hence the alleged adoption was illegal. Jagannath died
issueless about 50 years back and on his death Dina Nath, Anand Swaroop and Battu Mal alias
Jagat Swaroop became owners in possession by survivorship and their names were mutated in the
Municipal records on the application moved by Dina Nath and Battu Mal in the year of 1935.
Thereafter Battu Mal has purchased the share of Dina Nath and Anand Swaroop and thus Battu
Mal became sole owner of the suit property. Relevant entries were made in the Municipal records
for the assessment years 1946-51. Battu Mal was murdered. One Surendra Kumar and Smt.
Basanti Devi had no share in the suit property. But in order to avoid any dispute defendant Satya
Gupta had purchased 1/2 share from Surendra Kumar and Smt. Basanti Devi. Battu Mal had
never adopted Brijesh Kumar and Brijesh Kumar is son of one Shambhu Saran who was distantly
related to Battu Mal. Brijesh Kumar was sentenced to life imprisonment for committing the
murder of Battu Mal in the year 1956 and thus Brijesh Kumar was not entitled to succeed to the
property of Battu Mal. One Sri Hari Shanker Bansal (father of defendants Nos. 3 and 4) was
tenant of Smt. Chawali Devi on part of the suit property for about last 25 years and he had
constructed one pucca room on the land under his tenancy. Plaintiff No.1, Om Prakash was also
given 7 x 7 feet land of suit property on rent by Smt. Chawali Devi on which a temporary wooden
khokha was kept by Om Prakash in which he was doing Crockery and Shamiyana business. It
was also pleaded that Smt. Chawali Devi executed a will dated 21.6.1962 in favour of defendant
1 in respect to her entire property. She died on 23.5.1980 and on her death defendant No.1 filed
Testamentary Suit No.1/81 in the High Court on the basis of the will dated 21.6.1962 and she was
granted Letters of Administration on 9.4.1984. Defendant No.1 is in possession of the suit
property for last about 20 years and her name is entered in the Municipal Records as owner of the
disputed property. Plaintiffs never objected to it. The answering defendant sold by a
registered sale deed properties to Bansals (defendants Nos. 3 and 4) and they are necessary parties
to the suit. Defendants Nos. 3 and 4 in their written statements adopted the pleadings of defendant
No.1 and categorically, alleged that according to the Hindu custom sister’s son cannot be
adopted, hence alleged adoption of Chandra Bhan by Jagannath was against law.
Plaintiffs filed replication in which it was reiterated that in the Township of Hapur, where
Jagannath, Anand Swaroop etc. lived, there was a custom prevalent among Vaish community to
adopt son of sister. It was also pleaded that since only Battu Mal lived in Ghaziabad, he got his
name mutated in the Municipal Records. In the sale deed executed by Surendra Kumar and
Basanti Devi in favour of defendant No.1’s 1/4th share is shown to have been sold as 1/3rd share
to defendant No.1.
On the pleadings of the parties, the trial Court framed a number of issues. Relevant issues
are issues Nos.1 and 2 which were as follows:
1. Whether a custom was prevalent in Vaish community to validly adopt son of the
sister?
2. Whether Jagannath had legally adopted Chandra Bhan as a son, if so what is its
effect?
Both the parties adduced oral as well as documentary evidence. The trial court on
consideration of the evidence adduced before it and also on consideration of legal position
recorded finding that the plaintiffs have failed to establish that Jagannath had legally adopted
Chandra Bhan as his son. They have also failed to establish that in the Township of Hapur a
custom was prevalent in Vaish community, to validly adopt son of sister. The trial Court also
recorded a finding of fact that the plaintiffs have failed to establish that the formalities of
adoption were observed in accordance with law. On the other issue also the trial Court recorded
finding of fact against the plaintiffs. The trial Court accordingly dismissed the suit.
The First Appellant Court reversed the findings and held that the custom of adoption was
prevalent amongst community and, therefore, Chander Bhan was the legally adopted son of
Jagannath in the suit property and on his death, widow of Chander Bhan had 1/4th share in the
property. The plaintiff’s suit was accordingly decreed. The High Court in the second appeal
formulated the following questions for determination:
1. Whether the plaintiffs/respondents have successfully discharged the burden of
proof to establish that there existed a custom in the Vaish community to which
the lineal descendants of Paras Ram belonged, to adopt the son of sister?
2. Whether a Hindu belonging to the regenerated class could be adopted after
performance of ‘Janeu’ ceremony?
3. Whether for proving the factum of adoption it was necessary to lead
evidence of giving and taking of an adopted child at the time of ceremony of
adoption?
4. Whether recital in a document regarding alleged adoption is sufficient for
proving of the factum of adoption?
3. The High Court found that question No.3 as formulated above was not a substantial
question of law but held that there was no prevalent custom permitting adoption of the
sister’s son and, therefore, the appeal was allowed.
4. In support of the appeal learned counsel for the appellants submitted that the custom
was established. There was enough material to show that the family members treated Chander
Bhan as the adopted son and, therefore, the First Appellate Court’s judgment and decree should
have been maintained. It was submitted that the Trial Court and the High Court should not have
given any undue importance to the fact about the Janeu ceremony being held on the same day,
overlooking the fact that the evidence was being given by the witness who was more than 80
years old. It is submitted that even if the defendants acquire any title because of the transaction
with Anand Swarup his share was 1/4th and in any event the defendants cannot claim 1/3rd share.
It is further submitted that even if the stand about the acceptance of Chander Bhan as an
adopted son is to be accepted, that in any event do away with the requirement to prove legality of
adoption. It is to be noted that the adoption took place sometime in 1928-1929.
In response, learned counsel for the respondents submitted that the custom was not
established. Evidence of P.Ws. 1, 2 and 3 did not prove existence of custom. The rival stands
need careful consideration.
5. Since the alleged adoption took place prior to enactment of Hindu Adoptions and
Maintenance Act, 1956 (in short the ‘Act’), the old Hindu Law is applicable.
It would be desirable to refer to certain provisions of the Act, and the Hindu Code which
governed the field prior to the enactment of the Act. Section 3(a) of the Act defines ‘custom’ as
follows
“3. Definitions.—In this Act, unless the context otherwise requires,—
(a) the expressions, ‘custom’ and ‘usage’ signify any rule which, having been
continuously and uniformly observed for a long time, has obtained the force of
law among Hindus in any local area, tribe, community, group or family:
Provided that the rule is certain and not unreasonable or opposed to public
policy; and
Provided further that, in the case of a rule applicable only to a family, it has not
been discontinued by the family;”
Section 4 provides that any text, rule or interpretation of Hindu Law or any custom or
usage as part of that law in force immediately before the commencement of the Act shall become
inoperative with respect to any matter for which provision was made in the Act except where
it was otherwise expressly provided. Section 4 gives overriding application to the provisions of
the Act. Section 5 provides that adoptions are to be regulated in terms of the provisions
contained in Chapter II. Section 6 deals with the requisites of a valid adoption. Section 11
prohibits adoption; in case it is of a son, where the adoptive father or mother by whom the
adoption is made has a Hindu son, son’s son, or son’s son’s son, whether by legitimate blood
relationship or by adoption, living at the time of adoption. Prior to the Act under the old Hindu
Law, Article 3 provided as follows:
“Article 3. (1) A male Hindu, who has attained the age of discretion and is of sound
mind, may adopt a son to himself provide he has no male issue in existence at the
adoption.
(2) A Hindu who is competent to adopt may authorise either his (i) wife or (ii)
widow (except in Mithila) to adopt a son to himself.”
Where a son became an outcast or renounced Hindu religion, his father became entitled to
adopt another. The position has not changed after enactment of Caste Disabilities Removal Act
(XXI of l850) as the outcast son does not retain the religious capacity to perform the obsequial
rites. In case parties are governed by Mitakshara Law, additionally adoption can be made if
the natural son is a congenital lunatic or an idiot. Relevant provisions relating to custom as
defined in the Hindu Code are as follows:
“Custom defined.—Custom is an established practice at variance with the general law.
Nature of custom.—A custom varying the general law may be a general, local, tribal or
family custom.
Explanation 1.—A general customs includes a custom common to any considerable class
of persons.
Explanation 2.—A custom which is applicable to a locality, tribe, sect or a family is
called a special custom.
Custom cannot override express law.—(1) Custom has the effect of modifying the
general personal law, but it does not override the statute law, unless it is expressly saved
by it.
(2) Such custom must be ancient, uniform, certain, peaceable, continuous and
compulsory.
Invalid Custom.—No custom is valid if it is illegal, immoral, unreasonable or opposed to
public policy.
Pleading and proof of custom.—(1) He who relies upon custom varying the general law
must plead and prove it.
(2) Custom must be established by clear and unambiguous evidence.” (See Sir H.S.
Gour’s Hindu Code Volume 1, Fifth Edition.)
Custom must be ancient, certain and reasonable as is generally said. It will be noticed that
in the definition in Clause (a) of Section 3 of the Act, the expression ‘ancient’ is not used, but
what is intended is observance of custom or usage for a long time. The English rule that ‘ a
custom, in order that it may be legal and binding, must have been used so long that the memory
of man runneth not to the contrary’ has not been strictly applied to Indian conditions. All that is
necessary to prove is that the custom or usage has been acted upon in practice for such a long
period and with such invariability and continuity as to show that it has by common consent been
submitted to as the established governing rule in any local area, tribe, community, group or
family. Certainty and reasonableness are indispensable elements of the rule. For determination
of the question whether there is a valid custom or not, it has been emphasized that it must not be
opposed to public policy. I shall deal with the question of public policy later on. The origin of
custom of adoption assumes great importance. The origin of custom of adoption is lost in
antiquity. The ancient Hindu Law recognized twelve kinds of sons of whom five were adopted.
The five kinds of adopted sons in early times must have been of very secondary importance, for,
on the whole, they were, relegated to an inferior rank in the order of sons. Out of the five kinds of
adopted sons, only two survive today; namely, the Dattaka form prevalent throughout India and
the Kritrima form confined to Mithila and adjoining districts. The primary object of adoption was
to gratify the means of the ancestors’ by annual offerings and therefore it was considered
necessary that the offerer should be as much as possible a reflection of a real descendant and had
to look as much like a real son as possible and certainly not be one who would never have been a
son. Therefore, the body of rules was evolved out of a phrase of Saunaka that he must be ‘the
reflection of a son’. The restrictions flowing from this maxim had the effect of eliminating most
of the forms of adoption. (See Hindu Law by S. V. Gupte, Third Edition at pages 899-906). The
whole law of Dattaka adoption is evolved from two important texts and a metaphor. The texts are
of Manu and Vasistha, and the metaphor that of Saunaka. Manu provided for the identity of an
adopted son with the family into which he was adopted. (See: Manu.Chapter IX, pages 141-142,
as translated by Sir W. Jones). The object of an adoption is mixed, being religious and
secular. According to Mayne, the recognition of the institution of adoption in early times had
been more due to secular reasons than to any religious necessity, and the religious motive was
only secondary; but although the secular motive was dominant, the religious motive was
deniable. The religious motive for adoption never altogether excluded the secular motive. (See
Mayne’s Hindu Law and Usage, Twelfth Edition, page 329).
As held by this Court in V.T.S. Chandrashekhara Mudalie v. Kulandeivelu Mudalier, AIR
1963 SC 185, substitution of a son for spiritual reasons is the essence of adoption; and
consequent devolution of property is mere accessory to it; the validity of an adoption has to be
judged by spiritual rather than temporal considerations; and, devolution of property is only of
secondary importance.
In Hem Singh v. Harnam Singh, AIR 1954 SC 581, it was observed by this Court that
under the Hindu Law adoption is primarily a religious act intended to confer spiritual benefit on
the adopter and some of the rules have therefore been held to be mandatory, and compliance with
them regarded as a condition of the validity of the adoption. The first important case on the
question of adoption was decided by the Privy Council in the case of Amarendra Mansingh v.
Sanatan Singh, AIR 1933 PC 155. The Privy Council said
“Among the Hindus, a peculiar religious significance has attached to the son, through
Brahminical influence, although in its origin the custom of adoption was perhaps purely
secular. The texts of the Hindus are themselves instinct with this doctrine of religious
significance. The foundation of the Brahminical doctrine of adoption is the duty which
every Hindu owes to his ancestors to provide for the continuance of the line and the
solemnization of the necessary rites.”
With these observations it decided the question before it, viz., that of setting the limits to
the exercise of the power of a widow to adopt, having regard to the well established doctrine as to
the religious efficacy of sonship. In fact the Privy Council in that case regarded the religious
motive as dominant and the secular motive as only secondary.
This object is further amplified by certain observations of this Court. It has been held that
an adoption results in changing the course of succession, depriving wife and daughters of their
rights, and transferring the properties to comparative strangers or more remote relations. [See :
Kishori Lal v. Chaltibai, AIR 1959 SC 504]. Though undeniably in most of the cases motive is
religious, the secular motive is also dominantly present. We are not concerned much with
this controversy, and as observed by Mayne it is unsafe to embark upon an enquiry in each case
as to whether the motives for a particular adoption were religious or secular and an intermediate
view is possible that while an adoption may be a proper act, inspired in many cases by religious
motives, Courts are concerned with an adoption, only as the exercise of a legal right by certain
persons. The Privy Council’s decision in Amarendra Mansingh’s case (supra), has reiterated the
well established doctrine as to the religious efficacy of sonship, as the foundation of
adoption. The emhasis has been on the absence of a male issue. An adoption may either be made
by a man himself or by his widow on his behalf. The adoption is to the male and it is obvious
that an unmarried woman cannot adopt. For the purpose of adoption is to ensure spiritual benefit
for a man after his death by offering of oblations and rice and libations of water to the manes
periodically. Woman having no spiritual needs to be satisfied, was not allowed to adopt for
herself. But in either it is a condition precedent for a valid adoption that he should be without any
male issue living at the time of adoption.
6. In Mookka Kone v. Ammakutti Ammal, AIR 1928 Mad 299 (FB), it was held that where
custom is set up to prove that it is at variance with the ordinary law, it has to be proved that it is
not opposed to public policy and that it is ancient, invariable, continuous, notorious, not expressly
forbidden by the legislature and not opposed to morality or public policy. It is not disputed that
even under the old Hindu law, adoption during the lifetime of a male issue was specifically
prohibited. In addition, I have observed that such an adoption even if made would be contrary to
the concept of adoption and the purpose thereof, and unreasonable. Without entering into the
arena of controversy whether there was such a custom, it can be said that even if there was such a
custom, the same was not a valid custom.
It is incumbent on party setting up a custom to allege and prove the custom on which he
relies. Custom cannot be extended by analogy. It must be established inductively and not by a
priori methods. Custom cannot be a matter of theory but must always be a matter of fact and one
custom cannot be deduced from another. It is a well established law that custom cannot be
enlarged by parity of reasoning.
Where the proof of a custom rests upon a limited number of instances of a
comparatively recent date, the court may hold the custom proved so as to bind the parties to the
suit and those claiming through and under them; but the decision would not in that case be a
satisfactory precedent if in any future suit between other parties fuller evidence with regard to the
alleged custom should be forthcoming. A judgment relating to the existence of a custom is
admissible to corroborate the evidence adduced to prove such custom in another case. Where,
however a custom is repeatedly brought to the notice of the Courts, the Courts, may hold that the
custom was introduced into law without the necessity of proof in each individual case. Custom is
a rule which in a particular family or a particular class or community or in a particular district has
from long use, obtained the force of law. Coming to the facts of the case P.W.1 did not speak any
thing on the position either of a local custom or of a custom or usage by the community, P.W.2,
Murari Lal claimed to be witness of the ceremony of adoption he was brother-in-law of Jagannath
son of Pares Ram who is said to have adopted Chandra Bhan. This witness was 83 years old at
the time of deposition in the Court. He did not speak a word either with regard to the local
custom or the custom of the community. P.W.3 as observed by the lower appellate Court was
only 43 years’ old at the time of his deposition where as the adoption had taken place around 60
years back. He has, of course, spoken about the custom but that is not on his personal knowledge
and this is only on the information given by P.W.2, Murari Lal. He himself did not speak of such
a custom. The evidence of a plaintiff was thus insufficient to prove the usage or custom
prevalent either in township of Hapur and around it or in the community of Vaish. The evidence
of D.W.3 refers only to one instance. From his evidence it cannot be inferred that Om Prakash
had adopted Munna Lal who was his real sister’s son. As already pointed out above, the trial
Court found that the evidence of D.W.3 was not so clear and unambiguous as to lead to no other
conclusion except that Munna Lal was son of real sister of Om Prakash. Besides, this solitary
instance of adoption of his sister’s son cannot amount to long usage, which has obtained the force
of law. Mulla has categorically commented that where the evidence shows that the custom was
not valid in numerous instances, the custom could not be held to be proved. A custom derives its
force from the evidence from long usage having obtained the force of law.
All that is necessary to prove is that usage has been acted upon in practice for such a long
period with such invariability as to show that it has, by consent, been submitted so as to establish
governing rules of a particular locality or community. A custom, in order to be binding must
derive its force from the fact that by long usage it has obtained the force of law, but the English
rule that “a custom in order that it may be legal and binding, must have been used long that the
memory of man runneth not to the contrary” should not be strictly applied to Indian conditions.
All that is necessary to prove is that the usage has been acted upon in practice for such a long
period and with such invariability as to show that it has, by common consent, been submitted to
as the established governing rule of a particular locality. A custom may be proved by general
evidence as to its existence by members of the tribe or family who would naturally be cognizant
of its existence, and its exercise without controversy, and such evidence may be safely acted
on when it is supported by a public record of custom such as the Riwaj-i-am or Manual of
Customary Law. In yet another decision reported in Hem Singh and another v. Hakim Singh and
another, AIR 1954 SC 581, this Court observed that the custom recorded in the ‘Riwaj-i-am’
is in derogation of the general custom and those who set up such a custom must prove it by clear
and unequivocal language. Similarly, when a custom is against the written texts of the Hindu Law
then, one who sets up such a custom must prove it by a clear and unequivocal language. It may
also be pointed out that the settled law is that for a valid adoption, not only the person adopting
should be capable of lawfully taking in adoption; but the person giving must be capable of
lawfully giving in adoption and the person adopted must be capable of being lawfully taken in
adoption. It is necessary that all these three conditions should be satisfied and that it is not
sufficient that one of them be satisfied. In the case of Hem Singh (supra) this court quoted with
approval of some of the observations in Mulla’s Principles of Hindu Law at Page 541 of XI
Edition with such observations in paragraph 434 to the following effect:
“It has similarly been held that the texts which prohibit the adoption of an only son,
and those which prohibit the adoption of an only son, those which enjoin the adoption of
a relation in preference to a stranger, are only directory; therefore, the adoption of
an only son, or a stranger in preference to a relation, if completed, is not invalid; that in
cases such as the above, where the texts are merely directory, the principle of factum
valet applies, and the act done is valid and binding.”
But just thereafter the following observations occurred in the same paragraph :
“But the texts relating to the capacity to give, the capacity to take, and the capacity to be
the subject of adoption are mandatory. Hence the principle of factum valet is ineffectual
in the case of an adoption in contravention of the provisions of those texts.”
So far as the evidence adduced is concerned, reliance was placed on the evidence of three
witnesses. As noted above P.W. 1 did not speak about any custom. Similarly, P.W. 2 did not
speak about any custom though he claimed to be present at the time of adoption. The present
appellant was P.W. 3. He is outsider of the family. He also accepted that he did not have personal
knowledge about the custom. He only stated that PW2 told him about the custom. Significantly
P.W.2 did not speak about any existence of any custom. Appellant PW 3 also accepted that he
did not find out as to what was the custom if any and also that he does not know any other
instance. Though the Appellate Court had referred to evidence of D.W.3 to hold that he had
accepted that the custom was in existence. As a matter of fact, his evidence is contrary to and is
specific that there was no custom. The first appellate Court had relied on the evidence of Munna
Lal to conclude that the son of Reba Saran was given in adoption. Munna Lal specifically stated
that the son of Jagannath who was taken in adoption is not the son of sister of Saran.
7. In view of the aforesaid factual situation and the principles of law enumerated above,
the inevitable conclusion is that the appeal is sans merit, deserves dismissal, which we direct.
Appeal dismissed.

[2008 (1) T.N.C.J. 896 (SC)]


SUPREME COURT
BEFORE:
DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.
BALASAHEB DAYANDEO NAIK (DEAD)
THROUGH LRS. AND OTHERS ...Petitioner
Versus
APPASAHEB DATTATRAYA PAWAR ...Respondent
[Civil Appeal No. 647 of 2008 (Arising out of SLP (C) No. 16694 of 2005), decided on 24 th
January, 2008]
(A) Agreement for sale—Of immoveable property—No presumption as to time
being the essence of the contract— Parties agreed that sale deed is to be executed within
six months—Stipulation therein that in the event of failure to execute the sale deed, the
earnest money will be forfeited—Such clause of the agreement of sale would render
ineffective the specific provision relating to the time being the essence of contract.
(Para 10)
(B) Pleading and proof—Written statement—Bald claim that the time was the
essence of contract—Recital in the agreement of sale that the sale deed has to be executed
within a period of six months—Express provision that failure to adhere to the time, the
earnest money will be forfeited—In view of recital pertaining to forfeiture of the earnest
money makes it clear that time was never intended by the parties to be of essence—Mere
fixation of time within which contract is to be performed does not make the stipulation
as to the time as the essence of contract—Defendant not bothered to prove his claim
through evidence to the effect that it was the plaintiffs who avoided performing their part of
contract—Plaintiff is entitled to seek alternative relief in the event the decree for specific
performance cannot be granted for any reason—Plaintiff on such pleading could not be
non-suited—No infirmity in the alternative plea of refund. (Para 13)
Case law.—1993 (1) SCC 519; 1977 (2) SCC 539; 1988 (2) SCC 488; 2004 (8) SCC 689;
1997 (3) SCC 1.
Counsel.—Mr. Makarand D. Adkar, for the appellants; Mr. V.N. Ganpule, for the
respondent.
Important Point
Time is not the essence of contract relating to immovable property.
JUDGMENT
P. SATHASIVAM, J.—Leave granted.
2. This appeal is directed against the judgment and order dated 11.01.2005 passed by the
High Court of Judicature at Bombay in First Appeal No. 743 of 1993 in and by which the High
Court set aside the decree for specific performance granted by the trial Court and
consequently dismissed the suit of the plaintiffs.
3. Brief facts in a nutshell are:
The appellants/plaintiffs in special civil suit No. 320 of 1988 filed the same for specific
performance of agreement dated 31.07.1985. According to the plaintiffs, the respondent
herein/defendant is the owner of land Block No. 208 and Block No. 209 respectively admeasuring
Area H. 0.60 R and H. 0.40 R of Village Nagaon in Hatkanangale Tahsil. The defendant had
entered into an agreement for sale of the said lands to the plaintiffs for a consideration of
Rs.85,000/- per acre. The agreement was reduced into writing and according to the terms of the
agreement, the sale deed was to be executed by the defendant within a period of six months. It
was agreed that possession of the lands was to be delivered at the time of execution of sale deed.
The defendant has also undertaken the responsibility of obtaining necessary permission for sale of
the lands, if required. On the date of execution of the agreement, an amount of Rs.20,000/- was
paid by the plaintiffs to the defendant as earnest money and balance amount of the consideration
was to be paid at the time of execution of the sale deed. The plaintiffs were always ready and
willing to perform their part of the contract but the defendant avoided to receive the balance
amount of consideration and neglected to execute the sale deed. The plaintiffs sent a legal notice
on 16.07.1988 to the defendant through their advocate calling upon him to perform his part of the
obligation under the contract. In spite of the notice, the defendant did not comply with the
requirements which necessitated the plaintiffs to file the suit for specific performance or in the
alternative refund of earnest money with interest thereon @ 15% per annum.
4. The defendant filed a written statement wherein he denied the plaintiffs claim. It was
further stated that though agreement for sale of the suit lands was entered into between him and
the plaintiffs on 31.07.1985, the sale deed was to be executed within a period of six months from
the date of contract as he was in dire need of money for construction of his house and, therefore,
the time was the essence of the contract. He had called upon the plaintiffs to pay the balance
amount of consideration and get the sale deed executed. But the plaintiffs were not in a position
to arrange the balance amount of consideration and complete the contract. As the market
price of the agricultural lands have now gone up, the plaintiffs by purchasing the suit lands are
intending to dispose of the same to others at a higher price. In view of the same, the
plaintiffs are not entitled to discretionary relief of specific performance of contract.
5. The learned Civil Judge (Senior Division), on 23.02.1993, after finding that the
defendant has failed to prove that time was the essence of contract and the plaintiffs were and are
ready and willing to perform their part of contract decreed the suit as prayed for. Aggrieved by
the aforesaid judgment of the trial Court, the defendant filed First Appeal No. 743 of 1993 before
the High Court of Judicature at Bombay. The learned Single Judge of the High Court not in
agreement with the conclusion of the trial Court and finding that plaintiffs failed to
substantiate their plea allowed the appeal of the defendant and dismissed the suit. Questioning the
judgment and order of the High Court, the plaintiffs have filed the present appeal by way
of special leave. During the pendency of the appeal before this Court, Balasaheb Dayandeo
Naik/first plaintiff died and his legal representatives were brought on record as per order dated
19.09.2006 in I.A. No. 3 of 2005.
6. We heard Mr. Makarand D. Adkar, learned counsel appearing for the appellants and Mr.
V.N. Ganpule, learned senior counsel appearing for the respondent, perused the entire annexures
and other relevant materials filed before this Court.
7. Having regard to the terms of agreement of sale dated 31.07.1985, reasonings of the trial
Court as well as the High Court and submissions before this Court, only two points arise for
consideration of this Court, namely, (a) whether time is the essence of the contract? and (b)
whether the plaintiffs were ready and willing to perform the contract?
8. In order to find an answer to the above questions, it would be useful to refer the relevant
recitals from the agreement of sale. Para 3 of the agreement specifically mentions the details of
the land sought to be sold such as extent and boundaries. It also refers the easement rights and
the period in which the sale has to be completed. The recital reads as under:—
“From the total consideration I have received Rs.20,000/- as an earnest money of which
no independent receipt is necessary. Rest of the amount is to be paid by you at the time
of sale deed of the said lands. It is agreed between the parties that the sale deed is to be
executed within 6 months from today. Possession of the land is to be handed over at the
time of sale deed.”
It is also relevant to mention the default clause which reads as under:—
“For completion of the sale deed the permission is required to be obtained by me. If I fail
to execute the said deed within stipulated period then you have to get it executed on the
basis of this agreement. On the contrary if you fail to get execute the sale-deed then
this agreement is supposed to be cancelled and the earnest amount will be
forfeited. The land is free from all sorts of encumbrances. This agreement is binding on
myself and my legal heirs etc. dated 31/7/1985.”
The above-mentioned details in the agreement of sale clearly show (a) that the subject-
matter of the property is an agricultural land/ immoveable properties, (b) the sale deed is to be
executed within six months from the date of sale agreement i.e. 31.07.1985, (c) possession of the
land to be handed over at the time of execution of sale deed, (d) failure to get executed the sale
deed, the earnest money will be forfeited. With these factual details, let us consider the legal
principles enunciated by this Court.
9. In Chand Rani (Smt.) (dead) by LRs. v. Kamal Rani (Smt.) (dead) by LRs., (1993) 1
SCC 519, a Constitution Bench of this Court has held that in the sale of immoveable property,
time is not the essence of the contract. It is worthwhile to refer the following conclusion:
“19. It is a well-accepted principle that in the case of sale of immovable property, time
is never regarded as the essence of the contract. In fact, there is a presumption
against time being the essence of the contract. This principle is not in any way
different from that obtainable in England. Under the law of equity which governs
the rights of the parties in the case of specific performance of contract to sell real
estate, law looks not at the letter but at the substance of the agreement. It has to
be ascertained whether under the terms of the contract the parties named a
specific time within which completion was to take place, really and in substance
it was intended that it should be completed within a reasonable time. An intention
to make time the essence of the contract must be expressed in unequivocal
language.”
“21. In Govind Prasad Chaturvedi v. Hari Dutt Shastri, (1977) 2 SCC 539, following
the above ruling it was held at pages 543-544: (SCC para 5)
“... It is settled law that the fixation of the period within which the contract has to be
performed does not make the stipulation as to time the essence of the contract. When a
contract relates to sale of immovable property it will normally be presumed that the time
is not the essence of the contract. [Vide Gomathinayagam Pillai v. Pallaniswami Nadar 1
(at p. 233).]
It may also be mentioned that the language used in the agreement is not such as
to indicate in unmistakable terms that the time is of the essence of the contract. The
intention to treat time as the essence of the contract may be evidenced by circumstances
which are sufficiently strong to displace the normal presumption that in a contract of
sale of land stipulation as to time is not the essence of the contract.”
“23. In Indira Kaur (Smt.) v. Sheo Lal Kapoor, (1988) 2 SCC 488, in paragraph 6 it
was held as under:
“... The law is well-settled that in transactions of sale of immovable properties, time is
not the essence of the contract.”
10. It is clear that in the case of sale of immoveable property, there is no presumption as to
time being the essence of the contract. Even where the parties have expressly provided that time
is the essence of the contract, such a stipulation will have to be read along with other
provisions of the contract. For instance, if the contract was to include clauses providing for
extension of time in certain contingencies or for payment of fine or penalty for every day or
week, the work undertaken remains unfinished on the expiry of the time provided in the contract,
such clauses would be construed as rendering ineffective the express provision relating to the
time being of the essence of contract. In the case on hand, though the parties agreed that the sale
deed is to be executed within six months, in the last paragraph they made it clear that in the event
of failure to execute the sale deed, the earnest money will be forfeited. In such
circumstances, the above-mentioned clauses in the last three paragraphs of the agreement of sale
would render ineffective the specific provision relating to the time being the essence of contract.
11. This Court in Swarnam Ramachandran (Smt.) and another v. Aravacode Chakungal
Jayapalan, (2004) 8 SCC 689, has once again reiterated that time is not the essence of contract
relating to immoveable property. The following statement of law in para 12 are rightly
applicable to the case on hand:
“12. That time is presumed not to be of essence of the contract relating to immovable
property, but it is of essence in contracts of reconveyance or renewal of lease.
The onus to plead and prove that time was the essence of the contract is on the
person alleging it, thus giving an opportunity to the other side to adduce rebuttal
evidence that time was not of essence. That when the plaintiff pleads that time
was not of essence and the defendant does not deny it by evidence, the Court is
bound to accept the plea of the plaintiff. In cases where notice is given
making time of the essence, it is duty of the Court to examine the real
intention of the party giving such notice by looking at the facts and
circumstances of each case. That a vendor has no right to make time of the
essence, unless he is ready and willing to proceed to completion and secondly,
when the vendor purports to make time of the essence, the purchaser must be
guilty of such gross default as to entitle the vendor to rescind the contract.”
12. As observed in the said decision, in the case on hand the appellants/plaintiffs
clearly established their claim to secure specific performance of the agreement by leading
cogent evidence whereas the respondent/defendant having pleaded that time was the essence of
the contract neither entered the witness box nor led any evidence whatsoever. The
High Court lost sight of the above material aspect and the conduct of the defendant in not
strengthening his plea by placing acceptable evidence. In such circumstances, as rightly argued
by learned counsel for the appellants, the High Court should have confirmed the decree of
specific performance granted by the trial Court. On the other hand, the High Court wrongly
placed reliance on the decision of this Court in K.S. Vidyanadam and others v. Vairavan, (1997)
3 SCC 1, as in the facts of that case, this Court found that granting for specific performance was
inequitable, however such aspect of the matter was totally absent in the case on hand. Even
otherwise, para 11 of the judgment shows that the subject-matter of the property was an urban
immoveable property and in such special circumstance relaxed the general rule that time is not
the essence of the contract in the case of immoveable properties. In the case on hand, the details
furnished in the agreement clearly show that the subject-matter of the property is an agricultural
land situated in Kolhapur Dist., Maharastra. In such circumstances, the decision in K.S.
Vidyanadam and Ors. (supra) is not applicable to the facts on hand. In the facts of the present
case, which we have already adverted to, neither the terms of agreement nor the intention of the
parties indicate that the time is an essence of the agreement. We have already pointed that having
raised such a plea the respondent even did not bother to lead any evidence.
13. It is true that the defendant in his written statement has made a bald claim that the time
was the essence of contract. Even if we accept the recital in the agreement of sale (Exh. 18) that
the sale deed has to be executed within a period of six months, there is an express provision in the
agreement itself that failure to adhere the time, the earnest money will be forfeited. In such
circumstances and in view of recital pertaining to forfeiture of the earnest money makes it clear
that time was never intended by the parties to be of essence. The Constitution Bench decision in
Chand Rani v. Kamal Rani (supra) also makes it clear that mere fixation of time within
which contract is to be performed does not make the stipulation as to the time as the essence of
contract. Further, we have already pointed out that the defendant has not bothered to prove his
claim on oath before the Court to the effect that it was the plaintiffs who avoided performing their
part of contract. All the above-mentioned material aspects were correctly appreciated by the
trial Court and unfortunately the High Court failed to adhere to the well known
principles and the conduct of the defendant. When the third plaintiff deposed before the Court
explaining their case with reference to the recitals in the agreement of sale including the
reference to the legal notice to the defendant, in the absence of contra evidence on the side of
the defendant, we are unable to agree with the conclusion arrived at by the High Court in non-
suiting the plaintiff. The High Court commented the conduct of the plaintiffs in praying for
refund of the earnest money, namely, Rs.20,000/- paid as advance. As rightly pointed out, the
claim for refund of earnest money is only their alternative claim. It is not in dispute that in all
suits for specific performance, the plaintiff is entitled to seek alternative relief in the event the
decree for specific performance cannot be granted for any reason, hence there is no infirmity in
the alternative plea of refund.
14. In the light of what has been stated above, we set aside the judgment and decree of the
High Court and confirm the decree granted by the trial Court. In view of the said conclusion, the
appellants/ plaintiffs are directed to deposit the balance amount of sale consideration i.e.,
Rs.1,92,500/- in the trial Court within a period of eight weeks whereupon the
respondent/defendant shall execute the sale deed of the suit lands Block No. 208 admeasuring
0.60 R and Block No. 209 admeasuring 0.40 R of Village Nagaon, Tahsil Hatkanangale as per the
agreement dated 31.07.1985. In case of failure of the defendant to execute the sale deed, the
plaintiffs shall be entitled to get the sale deed executed through Court.
15. The civil appeal is allowed on the above terms. However, in the facts and
circumstances of the case, there shall be no order as to costs.
Appeal allowed.

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