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[2009 (3) T.N.C.J. 673 (Mad) (MB)] MADRAS HIGH COURT (MADURAI BENCH) BEFORE: MRS. ARUNA JAGADEESAN, J. BHARATHI ...Petitioner Versus MAHESH KANNAN ...Respondent [C.R.P. (PD) No. 525 of 2009, decided on 18 th September, 2009] Civil Procedure Code, 1908—Order 7, Rule 10—Return of plaint —Suit filed in India restraining respondent for prosecuting divorce petition in Singapore—Suit returned questioning maintainability of suit requiring petitioner to state provision of law under which Court in India could entertain suit—Held, it would be improper and derogatory to prestige of foreign Court if any sub Court at India holds that decision of foreign Court is wrong for one reason or other and cannot be recognized—Hence, no interference warranted with order returning suit. (Paras 11, 12 and 15) Case law.—1991 (3) SCC 451; 2002 (4) SCC 468; AIR 1962 SC 527—referred. Counsel.—Mr. N. Dilipkumar, for the petitioner; Mr. A.V. Arun, for the respondent. JUDGMENT MRS. ARUNA JAGADEESAN, J.—This civil revision petition is filed by the plaintiff/wife against the order dated 1.4.2009 passed by the learned Subordinate Judge, Nagercoil in O.S.Diary No.1597/2009, returning the plaint questioning the maintainability of the suit. 2. The petitioner has filed the above said suit against the respondent/defendant for the following reliefs: “(a) Pass an order of permanent injunction restraining the defendant from prosecuting Divorce Petition No.5261/2007 on the file of the Subordinate Court of the Republic of Singapore. (b) Declaring that any of the orders passed by the Subordinate Court of the Republic of Singapore in Divorce Petition No. 5261/2007 hereafter could not be recognised in India.
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Page 1: Civil December 09 (Vol-3)

[2009 (3) T.N.C.J. 673 (Mad) (MB)]MADRAS HIGH COURT

(MADURAI BENCH)BEFORE:

MRS. ARUNA JAGADEESAN, J.BHARATHI ...Petitioner

VersusMAHESH KANNAN ...Respondent

[C.R.P. (PD) No. 525 of 2009, decided on 18th September, 2009]Civil Procedure Code, 1908—Order 7, Rule 10—Return of plaint—

Suit filed in India restraining respondent for prosecuting divorce petition in Singapore—Suit returned questioning maintainability of suit requiring petitioner to state provision of law under which Court in India could entertain suit—Held, it would be improper and derogatory to prestige of foreign Court if any sub Court at India holds that decision of foreign Court is wrong for one reason or other and cannot be recognized—Hence, no interference warranted with order returning suit. (Paras 11, 12 and 15)

Case law.—1991 (3) SCC 451; 2002 (4) SCC 468; AIR 1962 SC 527—referred.

Counsel.—Mr. N. Dilipkumar, for the petitioner; Mr. A.V. Arun, for the respondent.

JUDGMENT

MRS. ARUNA JAGADEESAN, J.—This civil revision petition is filed by the plaintiff/wife against the order dated 1.4.2009 passed by the learned Subordinate Judge, Nagercoil in O.S.Diary No.1597/2009, returning the plaint questioning the maintainability of the suit.

2. The petitioner has filed the above said suit against the respondent/defendant for the following reliefs:

“(a) Pass an order of permanent injunction restraining the defendant from prosecuting Divorce Petition No.5261/2007 on the file of the Subordinate Court of the Republic of Singapore.

(b) Declaring that any of the orders passed by the Subordinate Court of the Republic of Singapore in Divorce Petition No. 5261/2007 hereafter could not be recognised in India.

(c) Pass an order of permanent injunction restraining the defen-dant from initiating any legal proceedings as against this plaintiff before any Courts of the Republic of Singapore in future.

(d) Grant a decree for recovery of Rs.2,25,000/- spent by the plaintiff to defend her suit in Singapore from the defendant.

(e) Award the cost of the suit.”3. The petitioner is the wife of the respondent and their marriage had

been solemnized on 24.6.1999 at Sivagamiammal Marriage Hall, Vadeseri, Nagercoil as per Hindu Law. The petitioner gave birth to a male child on 6.6.2004 at Gopala Pillai Hospital, Nagercoil and he is aged about four years. The plaintiff and the minor child Mahesh Kannan Jaisivaa were living with the

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defendant at Singapore till 24.8.2006. Since serious problems arose between them, the petitioner returned to India with her child.

4. According to the petitioner, she was forcibly sent to India on 24.8.2006, which necessitated her to file an application before the Women Commission of Tamil Nadu bearing No.2443/2007 dated 12.11.2007, for which the respondent had sent a conciliation plan subject to eleven conditions dated 30.11.2007. In the mean while, the respondent had instituted the divorce suit No.5261/2007 before the Subordinate Court of the Republic of Singapore against the petitioner along with the matrimonial property plan. The petitioner had filed her defence before the Subordinate Court of the Republic of Singapore and she was unable to defend the case spending huge amount for travelling to Singapore and therefore, she did not defend the said suit in Singapore. Subsequently, the petitioner filed H.M.O.P.No.15/2008 before the Sub Court, Nagercoil for restitution of conjugal rights and the respondent had opposed the said petition by filing a counter. Subsequently, he was set ex parte and a decree was passed under Section 9 of the Hindu Marriage Act for restitution of conjugal rights.

5. The respondent is residing at Singapore and the petitioner had sent a notice dated 18.12.2008 to the respondent through her counsel, requiring the respondent to pay a sum of Rs.2,25,000/- representing the amount spent by her to defend the suit at Singapore and informing about the decree passed by the Sub Court, Nagercoil in H.M.O.P.NO.15/2008 and that the respondent is not entitled to continue the divorce proceedings in the Subordinate Court of the Republic of Singapore. She has also stated in the said notice that any order passed thereon will be in violation of principles of natural justice, but the said notice had been returned. The petitioner had now come to know that the Subordinate Court of the Republic of Singapore had passed an interim judgment dated 22.10.2008 in the said divorce suit, which is likely to be made final in another three months period.

6. It is the case of the petitioner that the respondent is bound by the decree passed in H.M.O.P.No.15/2008 dated 22.10.2008 and he is not entitled to continue the divorce suit on the file of the Subordinate Court of the Republic of Singapore. Therefore, the petitioner has filed the suit for the reliefs stated supra.

7. The learned Subordinate Judge, Nagercoil has returned the suit, questioning the maintainability of the suit and requiring the petitioner to state the provision of law under which the Sub-Court at Nagercoil could entertain the suit and interfere with the divorce proceedings pending on the file of the Subordinate Court of the Republic of Singapore. Aggrieved over the same, this civil revision petition has been filed by the plaintiff.

8. Mr. N. Dilipkumar, the learned counsel for the petitioner would contend that the reasoning given by the Court below for returning the plaint is unsustainable, as no decree is sought for by the petitioner against the Court at Singapore and it is only as against the respondent. He would submit that the petitioner though filed a written statement in the divorce suit initiated by the respondent, but she has not submitted to the jurisdiction of the foreign Court and therefore, the decree if any passed is unenforceable against her.

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9. The learned counsel for the petitioner would place reliance upon the judgment of the Honourable Supreme Court rendered in the case of Y. Narasimha Rao and others v. Y. Venkata Lakshmi and another, 1991 (3) SCC 451. That is a case where the husband played fraud on the foreign Court by representing to it incorrect jurisdictional facts and on the factual situation the Honourable Supreme Court has held that even presuming that the foreign Court by its own rules of jurisdiction had rightly entertained the dispute and granted a valid decree of divorce according to its law, since the jurisdiction of the forum as well as the ground on which the order was passed by the foreign Court is not in accordance with the Act under which the parties were married and the wife had not submitted to the jurisdiction of the Court or consented to its passing of decree, it cannot be recognised by the Courts in India and, therefore, it is unenforceable.

10. In yet another decision of the Honourable Supreme Court rendered in the case of Vikas Aggarwal v. Anubha, 2002 (4) SCC 468, the parties were married in India and went to U.S.A. and in view of the serious problems arose between them, the husband filed a petition for no default divorce in U.S.A. and notice was served on the wife and she did not respond, but came back to India and filed a suit before the Delhi High Court against the husband for separation and maintenance and the Delhi High Court issued an order restraining the husband from proceeding further before the American Court for a period of 30 days and thereafter, on being informed that the American Court had passed a decree of divorce, the Delhi High Court issued an order under Order 10 of CPC directing the husband to appear before the Delhi High Court, which was challenged before the Honourable Supreme Court. The Honourable Supreme Court held that the Order 10 of CPC is an enabling provision providing that the Court at first hearing of the suits shall ascertain from each party about their pleadings and it does not in any manner place any bar on the powers of the Court to seek any clarification from any party in an appropriate case at any date earlier than to one fixed for framing issues so as to advance interest of justice.

11. I am afraid that the aforesaid decisions cited by the learned counsel for the petitioner cannot be applied to the facts of this case. From the facts narrated by the petitioner, it is seen that the respondent has instituted the divorce suit earlier to the filing of the petition by the petitioner for restitution of conjugal rights. Though the decree is passed for restitution of conjugal rights even before any decree could be passed in the said divorce suit by the Subordinate Court of the Republic of Singapore, the question for consideration is as to whether the Sub-Court at Nagercoil has jurisdiction to entertain the suit seeking for the relief of permanent injunction restraining the respondent from prosecuting the divorce suit instituted earlier to that of the petition for restitution of conjugal rights in India, for declaratory relief that any order passed by the Subordinate Court of the Republic of Singapore in Divorce Suit No.5261/2007 cannot be recognized in India and also for permanent injunction restraining the defendant from initiating any legal proceedings as against the petitioner before the Subordinate Court of the Republic of Singapore in future.

12. It is settled law that there is a discretion with the Court to grant a declaratory relief or not under Section 42 of the Specific Relief Act. In regard

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to the proceedings pending in the foreign Court or decision given thereon, a party is not entitled to a declaratory relief as a matter of right, as it would infringe upon the undoubted right of the foreign Courts to decide the cases pending before them. It would be improper and derogatory to the prestige of the foreign Court if any Sub-Court at India holds that the decision of the foreign Court is wrong for one reason or the other and cannot be recognised in India. Even if such suit be entertained and a decision is given, the foreign Court would certainly ignore the decision in such a case.

13. In the case of Manohar Lal Chopra v. Rai Bahadar Rao Raja Seth Hiralal, AIR 1962 SC 527, the Honourable Supreme Court has held that question of issuing an order to a party restraining him from proceeding with any other suit in a regularly constituted Court of law deserves great care and caution and such an order is not to be made unless absolutely essential for the ends of justice.

14. In the instant case, the last relief preferred by the petitioner for the grant of decree for recovery of a sum of Rs.2,25,000/- spent by her to defend the suit in Singapore can be sought for and in my considered view, the suit in respect of other reliefs cannot be entertained.

15. In view of the aforesaid reasons, the return made by the Court below is sustainable and I do no find any illegality or infirmity in the said order and this civil revision petition is liable to be dismissed.

16. In the result, this civil revision petition is dismissed. No costs.Petition dismissed.

[2009 (3) T.N.C.J. 677 (Mad)]MADRAS HIGH COURT

BEFORE:S. RAJESWARAN, J.

M. NAMACHIVAYAM ...PetitionerWith

K. EKAMBARAM ...PetitionerVersus

M. THIRUNAVUKKARASU ...Respondent[C.R.P. (PD) Nos. 3952 and 3953 of 2007 and M.P. Nos. 1 and 1 of 2007,

decided on 9th September, 2009]Civil Procedure Code, 1908—Section 149 and Order 7, Rule 11—

Rejection of plaint—Money suit—At time of filing suit full court-fee not paid—Again presented after rectifying defect but delay caused—Court below without there being any application under Section 149, CPC condoned delay—Held, Court below not followed well established procedure, hence order cannot be sustained—Order thus set aside.

(Paras 20, 21, 23 and 24)

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Case law.—2003 (2) MLJ 305; 2007 (1) MLJ 669; 2007 (10) SCC 59; 2009 (4) LW 75; 2003 (2) MLJ 305—referred.

Counsel.—Mr. A.U. Ilango, for the petitioner in both C.R.Ps.; Mr. T. Dhanyakumar, for the respondent in both C.R.Ps.

JUDGMENT

S. RAJESWARAN, J.—The respondent in both the revision petitions is one and the same and the question involved in both the revision petitions are also identical in nature and, therefore, a common order is being passed to dispose of both the revision petition.

2. The respondent in C.R.P.No.3952 of 2007 filed O.S.No.51 of 2005 for directing the defendant in the suit to pay a sum of Rs.1,87,885/- with future interest. According to the plaintiff in O.S.No.51 of 2005, the defendant borrowed a sum of Rs.1,09,618/- on 24.12.2001 agreeing to repay the same with interest at the rate of Rs.2/- per hundred per month. In evidence of the said borrowing, the defendant executed a Promissory Note dated 24.12.2001. As the defendant did not make any payment, a notice dated 10.11.2003 was issued calling upon the defendant to pay the amount. Though the defendant acknowledged the notice, he did not come forward to make the payment and hence, O.S.No.51 of 2005 has been filed by the plaintiff on the file of the Sub-Judge, Gudiyatham.

3. O.S.No.51 of 2005 was resisted by the defendant by filing a written statement wherein he denied that he borrowed any money from the plaintiff and the promissory note is only a forged one. It was further pointed out in the written statement that the Promissory Note was alleged to have been executed on 24.12.2001, but, the suit was filed after the limitation period.

4. Pending O.S.No.51 of 2005, the defendant in the suit filed an interim application under Order 7, Rule 11, C.P.C. to reject the plaint. The main contention of the defendant is that the promissory note was alleged to have been executed on 24.12.2001 and the suit was filed on 17.12.2004. When the suit was filed on 17.12.2004, the entire court-fee was not paid and there was deficit of court-fee payable by the plaintiff. The suit papers were returned by the Office for compliance and only on 18.10.2005, the plaintiff re-presented the suit papers with a petition to condone the delay of 287 days to re-present the papers. No petition was filed under Section 149, C.P.C. seeking permission of the Court to pay the deficit court-fee. Even if such petition was filed, he was not put on notice to oppose the same and therefore, the suit is to be rejected on the ground of limitation. This was resisted by the plaintiff by filing a counter, wherein it is stated that the condone delay petition was allowed and, therefore, the permission was deemed to have been granted by the trial Court. Further, it was stated in the counter that the trial has already comm-enced and, therefore, the present application is only to delay the suit proceedings.

5. The trial Court by order dated 26.7.2007, dismissed I.A.No.155 of 2006 by holding that the defendant though has a liberty to question the order passed in the condone delay petition, he did not do so and therefore, he is not entitled to get an order to reject the plaint. Aggrieved by the same, the defendant in O.S.No.51 of 2005 has filed C.R.P.No.3952 of 2007.

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6. The very same respondent in C.R.P.No.3952 of 2007 filed another suit in O.S.No.59 of 2005 in the Sub-Court, Gudiyatham against the revision petitioner in C.R.P. No.3953 of 2007. In O.S.No.59 of 2005 also, the plaintiff stated that the defendant borrowed a sum of Rs.2,24,620/- on 24.12.2001 agreeing to repay the same with interest at the rate of Rs.2/- per 100 per month. In evidence of the said borrowing, the defendant executed a Promissory Note on 24.12.2001. As the defendant has not paid any amount, the plaintiff issued a notice dated 10.10.2003 calling upon the defendant to pay the amount. Though the notice was acknowledged by the defendant, he did not come forward to pay the amount and, therefore, O.S.No.59 of 2005 has been filed directing the defendant to pay a sum of Rs.3,84,278/- with future interest.

7. This suit was resisted by the defendant by filing a written statement wherein the defendant denied the fact that he received any money as contended by the plaintiff and the Promissory note is a forged one. Pending the suit, the defendant filed I.A.No.156 of 2006 under Order 7, Rule 11 to reject the plaint. The main contention of the defendant in I.A.No.156 of 2006 is that the promissory note was alleged to have been executed on 24.12.2001 and the suit was filed on 17.12.2004. On 17.12.2004 when the suit was filed, only a sum of Rs.1,000/- was paid as court-fees and there was a deficit of a sum of Rs.27,821/- towards the court-fees payable by the plaintiff. The suit papers were returned for certain compliance on 22.10.2004. The suit papers were re-presented by the plaintiff on 9.11.2005 only with a petition to condone a delay of 308 days in re-presenting the suit papers. Even though the petition was returned on 11.11.2005 and again it was re-presented on 15.11.2005. The said petition to condone the delay was allowed on 22.11.2005 condoning the delay only. Therefore, no permission was obtained from the trial Court under Section 149, C.P.C. seeking permission of the Court to pay the deficit court-fee. Hence, the suit is to be rejected on the ground of limitation. This application was resisted by the plaintiff by filing a counter wherein it is stated that by condoning the delay and admitting the plaint, permission was deemed to have been granted by the trial Court. Further, the trial has also begun and the suit is posted for defendant’s side evidence. Hence, he sought for the dismissal of the interim application.

8. The trial Court by order dated 27.6.2007 dismissed I.A.No.156 of 2006 by holding that the defendant had an opportunity to question the order passed, condoning the delay in re-presentation and therefore, at this period of stage, the defendant is not entitled to maintain this application to reject the plaint. Aggrieved by the order of the trial Court dated 27.6.2007, the defendant filed C.R.P. No.3953 of 2007.

9. Heard the learned counsel for the revision petitioner and the learned counsel for the respondent. I have also perused the entire documents available on record.

10. The learned counsel for the revision petitioner submits that when there is no specific application under Section 149, C.P.C. seeking permission of the Court to pay the deficit court-fee, the plaint ought not to have been numbered and condoning the delay in re-presentation did not amount condoning the delay in paying the deficit court-fees. In support of his

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submissions, he relied on a decision of the Division Bench of this Court reported in (2003) 2 M.L.J. 305 (K. Natarajan v. P.K. Rajasekaran) and decision of a Single Judge of this Court reported in (2007) 1 MLJ 669 (V.N. Subramaniyam v. A. Nawab John and others).

11. Per contra, the learned counsel for the respondent submits that when condoning the delay in re-presenting the suit papers, it is deemed that the trial Court has also permitted the plaintiff to pay the deficit court-fees. At any event, he contends that after the orders are delivered and trial has commenced, it is not open to the defendant to file a petition under Order 7, Rule 11 to reject the plaint. In support of his submissions, he relied on the decisions of the Hon’ble Supreme Court reported in 2007 (10) SCC 59 (Ram Prakash Gupta v. Rajiv Kumar Gupta) and 2009 (4) LW 75 (P.K. Palanisamy v. N. Arumugam and another).

12. I have considered the rival submissions carefully with regard to facts and citations.

13. In C.R.P.No.3952 of 2007, it is an admitted fact that the Promissory Note was executed on 24.12.2001. The suit in O.S.No.51 of 2005 was filed on 17.12.2004 i.e., well within the period of three years. It is also an admitted fact that the entire Court-fee was not paid on 17.12.2004, when the suit papers were filed by the plaintiff. Admittedly, the suit papers were returned for complying with certain defects. Only on 18.10.2005, the papers were re-presented complying with all the requirements with a petition to condone the delay of 287 days in re-presenting the papers. Admittedly, on 18.10.2005 when the plaint was re-presented with full court-fee, the suit was barred by limitation.

14. Similarly, in C.R.P.No.3953 of 2007, the Promissory Note was executed on 24.12.2001 and the suit in O.S.No.59 of 2005 was filed on 17.12.2004 i.e., well within the three years period. On 17.12.2004, when the suit was filed, only a sum of Rs.1000/- was paid as court-fees and there was a deficit of a sum of Rs.27,821.50 was due and payable towards the deficit court-fees. The suit papers were also returned for certain compliances and only on 9.11.2005, the suit papers were re-presented with a petition to condone a delay of 308 days in re-presenting the suit papers. Admittedly, on 9.11.2005, the three years period was already expired and the suit is barred by limitation on that date.

15. In the light of the above facts and circumstances, the only point that arises for consideration before this Court is that, whether filing only a condone delay petition without specifically filing a petition under Section 149, C.P.C., the plaintiff could proceed with the suit proceedings.

16. When this was sought to be questioned by the defendants in the suit, the trial Court rejected the defendant’s contention by holding that when the defendant could come forward to question the order passed by the trial Court condoning the delay in re-presentation, the defendant could not maintain the applications at this delayed stage when the suit is in the trial stage.

17. Before proceeding further, let me refer to the decision relied on by both the learned counsel in support of their contentions:

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18. In (2003) 2 M.L.J. 305 (cited supra), a Division Bench of this Court held as follows:

“21. We deem it necessary to clarify the legal position and lay down the procedure to be followed as under:

(1) Section 149 of C.P.C. is a proviso to Section 4 of the Tamilnadu Court-fees and Suits Valuation Act, 1955.

(2) The word ‘document’ employed in Section 149 of C.P.C. would include plaint also.

(3) Whenever a plaint is received, the same shall be verified and if found to be not in order, the same shall be returned atleast on the third day (excluding the date of presentation so also the intervening holidays).

(4) If the suit is presented on the last date of limitation affixing less court-fee, than the one mentioned in the details of valuation in the plaint, an affidavit shall be filed by the plaintiff giving reasons for any paying the requisite court-fee.

(5) In such cases, the Court shall before exercising its discretion and granting time to pay the deficit court-fee, shall order notice to the defendants and consider their objections, if any. How-ever, such notice is not necessary in cases where the plaintiff has paid almost the entirety of the requisite court-fee and the Court is satisfied on affidavit by the party that the mistake happened due to some bona fide reasons such as calculation mistake or the alike.

(6) The discretion referred to in Section 149 of C.P.C. is a judicial discretion and the same has to be exercised in accordance with the well established principles of law.

(7) But however, in cases where the time granted to pay the deficit court-fee falls within the period of limitation, the defendant need not be heard.

(7A) In case where the plaint is presented well within the period of limitation with deficit court-fee and the Court returns the plaint to rectify the defect giving sometime (2 or 3 weeks), which also falls within the period of limitation, but the plaint is re-presented paying deficit court-fee after the period of limitation, the Court is bound to hear the defendant, notwithstanding the fact that the plaintiff has paid substantial court-fee (not almost entirety) at the first instance, before condoning the delay in paying the deficit court-fee.

(8) In cases where part of the time granted to pay the deficit court-fee falls outside the period of limitation and the deficit court-fee is paid within the time of limitation (i.e., the plaint is re-presented with requisite court-fee), the Court need not wait for the objections of the defendant and the plaint can be straight away numbered.

(9) The Court should exercise its judicial discretion while considering as to whether time should be granted or not. Cases

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where the plaintiff wrongly (bona fide mistake) valued under particular provisions of law under Court-fee Act or where he could not pay the required court-fee for the reasons beyond his control, due to some bona fide reasons, the Court shall condone the delay. Payment of substantial court-fee is a circumstance, which will go in favour of the claim of the plaintiff that a bona fide mistake has crept in.But however, in cases where the plaintiff acted wilfully to harass the defendant (like wilful negligence in paying court-fee, awaiting the result of some other litigation, expecting compromise, etc.)

(10) If the Court had exercised its discretion without issuing notice, then it is open to the defendant to file application under Section 151 of C.P.C. for proper relief. It will be open to the defendant to file a revision under Article 227 of Constitution of India. That apart, objection can also be raised at the trial or even at the appellate stage, since the failure to exercise judicial discretion in a manner known to law (as laid down in various decisions of the Supreme Court) amounts to Court applying a wrong provision of law.”

19. In (2007) 1 M.L.J. 669 (cited supra), this Court observed as follows:(1) In the absence of any order being passed by the Court for

granting time for payment or any other due, the plaintiff is not protected and the suit is liable to be rejected.

(2) When there is no invocation of the provisions of Section 149, C.P.C. and consequently prayer to condone the delay in the payment of the deficit court-fee while representing the plaint, the trial Court is not correct by exercising the discretion in favour of the plaintiff.

(3) Relief under Section 149 is a discretionary power of the Court and it is to be exercised in a manner known to law.

(4) High Court can exercise powers under Article 227 of the Constitution of India when there is a failure to exercise judicial discretion in a manner known to law.

20. A perusal of the above judgments will make it very clear that when the plaintiff re-presents the returned papers and if there is any deficit of court-fee payable by the plaintiff, then there must be an application under Section 149 to condone the delay in paying the deficit court-fees and a mere application to condone the delay in re-presentation alone is not sufficient. If the trial Court disregarding the well settled principle as stated therein, permitted the plaintiff to number the suit, then it is open to the defendant to approach this Court under Article 227 of the Constitution of India to question the same at any stage, even if the suit is in the trial stage.

21. Admittedly, in the present case, though the suits are filed well within the limitation period, there was deficiency in the court-fee payable by the plaintiff. It is also an undisputed fact that when the suit papers were re-presented by the plaintiff, the suit was barred by limitation and in such

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circumstances, the plaintiff ought to have taken an application under Section 149, C.P.C. to condone the delay in paying the deficit court-fees.

22. Further, when such an application is being filed, an opportunity should also be given to the defendant to oppose the same. Admittedly, this was not done by the plaintiff and the trial Court has also violated this fact. Therefore, the defendant could certainly question its illegality in following the procedure and maintain the civil revision petition, even though the suit is in the part heard stage. Filing a condone delay petition in re-presenting the suit papers is standing on a different footing as in a petition to condone the delay in re-presentation, it is for the Court to decide whether the delay is to be condoned or not. Further, the Courts are always liberal and in fact ought to be liberal in considering the condone delay petitions in re-presenting the papers in the interest of justice. In such petitions, notice itself is not ordered to the other side as it is essentially a matter between the Court and the petitioner. But, in a petition filed under Section 149, the petitioner has to explain the reasons for not paying the entire court-fees. At the time of filing the suit, especially when the suit papers are re-presented after the limitation period. It is not a formal application and unless genuine reasons are given by the petitioner, the Courts cannot permit the petitioner to pay the deficit court-fees as already the period of limitation is expired. That apart, the other side has to be put on notice to oppose the application as admittedly on that date the suit is barred by limitation.

23. In the present case, it is not in dispute that such a well established procedure has not been followed by the trial Court and the trial Court has simply condoned the delay in re-presentation as well as the delay in payment of the deficit court-fees. Such orders passed by the trial Court could be questioned by the defendant under Article 227 of the Constitution of India even though the order passed by the trial Court in condoning the delay in re-presenting the suit papers is not questioned by the other side.

24. Hence, I have no hesitation in holding that the orders under challenge in these two revision petitions are liable to be set aside as both the suits are to be rejected on the ground that they are barred by limitation. Accordingly, they are rejected.

25. The learned counsel for the respondent relying on the decision of this Hon’ble Supreme Court reported in 2007 (10) SCC 59 (cited supra) submitted that rejection of the plaint at a belated stage after filing of the written statement, framing of issues and cross-examination is disapproved by the Hon’ble Supreme Court and therefore, he submitted that the trial Court has correctly dismissed the applications filed belatedly.

26. I am unable to accept the submission made by the learned counsel for the respondent.

27. A perusal of the above decision rendered by the Hon’ble Supreme Court would show that the facts are totally different in that case and the question of payment of court-fee after the expiry of the limitation period for filing the suit does not arise for consideration before the Hon’ble Supreme Court and therefore, that decision is not at all useful to the case of the respondent.

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28. The other judgment on which great reliance was placed by the respondent is the decision of the Hon’ble Supreme Court reported in 2009 (4) L.W. 75 (cited supra).

29. A perusal of the above judgment would also show that the facts in that decision are peculiar and totally different.

30. In the case before the Hon’ble Supreme Court, a suit for recovery of money was instituted on 4.10.1998 and the plaint was presented on 5.10.1998. The plaint was accompanied by a court-fee Re.1 only and the plaintiff filed an application under Section 148, C.P.C. seeking six weeks time for payment of deficit court-fee. By order dated 7.10.1998, the trial Court granted six weeks time as prayed for. On 8.11.2008, another petition was filed seeking eight weeks time on the premise that the Stamp fee papers were not available in the Sub Treasury. On 20.11.1998, the trial Court granted eight weeks time. Another eight weeks time was granted by the trial Court on 21.1.1999. However, the plaintiff deposited the deficit court-fee on 17.2.1999 only which was accepted by the trial Court. The defendants entered appearance on 10.1.2001 and on 17.2.2003, a written statement was filed without raising any objection with regard to the delay in payment of court-fee. Therefore, no issues were framed in that behalf. Thereafter, the defendants remained ex parte and an ex parte decree was passed on 29.9.2004. The same was set aside by the trial Court on an application filed by the defendants after a gap of 289 days. Aggrieved by the setting aside of the ex parte decree, the plaintiff filed a revision and the High Court ruled a conditional order that the suit would be revived only if the defendants deposited a sum of Rs.3 lakhs. This order was not at all challenged and the amount was deposited. The trial commenced. The plaintiff was examined and cross-examined. At that stage, i.e., on or about 4.1.2008, the defendants filed an application under Order 7, Rule 11(c) to reject the plaint urging for the first time, the suit presented on 5.10.1998 was barred by limitation as the extension granted by the trial Court under Section 149, C.P.C. without issuing notice. The trial Court dismissed the application against which a civil revision petition was filed by the defendant under Article 227 of the Constitution of India. The High Court allowed the civil revision petition on 28.11.2008 and aggrieved by the same, the plaintiff approached the Hon’ble Supreme Court.

31. Only in the above mentioned backdrop of events the Hon’ble Supreme Court held that the High Court erred in rejecting the plaint.

32. The facts in the present case are totally different. Here, the suit was filed in 2005 and no petition was filed by the plaintiff for extension of time for the payment of deficit court-fee. In the written statement itself, a specific objection was raised by the defendants with regard to the limitation point. The statement was filed on or about 23.3.2006 in one case and 3.4.2006 in another case. On or about 28.11.2006 itself, applications were filed to reject the plaint. Therefore, the facts in the present case are clearly distinguishable and the decision of the Hon’ble Supreme Court reported in 2009 (4) L.W. 75 (cited supra) could not be pressed into service to the facts of the case in hand.

33. In the result, both the civil revision petitions are allowed. No cost. Connected miscellaneous petitions are closed.

Revision allowed.

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[2009 (3) T.N.C.J. 685 (Mad)]MADRAS HIGH COURT

BEFORE:C.S. KARNAN, J.

MESSERS GEM GRANITES REP. BY ITS MANAGER AND ANOTHER ...Appellants

VersusSHANKAR ...Respondent

[C.M.A. No. 785 of 2005 and C.M.P. No. 4375 of 2005, decided on 17th

September, 2009]Motor Vehicles Act, 1988—Section 166—Compensation—Deter-

mination—Tribunal awarded compensation of Rs. 2,80,480/- considering income and age of claimant as Rs. 3,000/- and 19 years respectively by adopting multiplier of 16—Validity of—Held, Tribunal awarded Rs. 40,000/- for loss of amenities—This award is extra as already Tribunal awarded Rs. 40,000/- for pain and suffering—Hence, Rs. 40,000/- liable to be deducted from compensation amount.

(Paras 16 and 17)Counsel.—Mr. M. Krishnamoorthy, for the appellants; Mr. M. Moorthy,

for the respondent.JUDGMENT

C.S. KARNAN, J.—This appeal has been preferred by the appellants/ respondents against the judgment and decree passed in M.A.C.T.O.P.No.160 of 2000 on the file of the Motor Accidents Claims Tribunal, (Subordinate Judge) at Dharmapuri, dated 28.4.2004 awarding a total compensation of Rs.2,80,480/- together with interest at the rate of 9% per annum from the date of filing of the claim petition till the date of payment of compensation.

2. Aggrieved against the award passed by the Motor Accidents Claims Tribunal, the appellants/respondents have preferred this appeal before this Court.

3. The brief facts of the case are as follows;On 15.12.1999, at about 8.30 hours, when the petitioner was procee-

ding on the extreme side of the road at imperial granite quarry at Krishnagiri to Chendarapally road, a tipper lorry bearing registration No. TSD 2379 belonging to the first respondent namely M/s. Gem Granites and insured with the second respondent, the Oriental Insurance Company Limited, Salem, driven by its driver in reverse, without seeing and observing rules of the road, with high speed, driven rashly and negligently dashed against the petitioner. In the result, the petitioner sustained grievous injuries and immediately he was taken to Government Hospital, Dharmapuri, wherein he was admitted as inpatient. The Police authority attached to the Gandhikuppam police station registered a criminal case in Crime No.357 of 1999 on an alleged offence under Sections 279 and 337 of I.P.C. against the first respondent driver. The said vehicle was insured with the second respondent/Insurance Company.

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Hence, both the respondents are jointly and vicariously liable to pay com-pensation to the petitioner.

4. Due to the said accident, the petitioner is unable to walk, stand and has urinal problem and also repeated bouts of chest pain. Hence, the petitioner has approached the Motor Accidents Claims Tribunal for claiming a compensation of Rs.5,00,000/- with 12% interest per annum and costs.

5. The second respondent/Oriental Insurance Company Limited has filed a counter statement and resisted the claim, but the second respondent has admitted that the first respondent’s vehicle bearing registration No. TSD 2379 was insured with them at the time of accident. The owner of the vehicle, has neither submitted any claim form nor informed them about the accident, which had taken place on 15.12.1999. The second respondent further alleged that they made investigation regarding the accident and found out that the accident had taken place while the petitioner was suddenly crossing the main road, without noticing the lorry which was coming behind him. So, the insurance company has denied the allegations of the petitioner against the driver of the lorry. Further, the petitioner has sustained only simple injuries in the said accident and no permanent disability has happened to the petitioner. Further, the petitioner has to prove the age, occupation and monthly income by way of documentary evidence. Further, the insurance company has stated that the compensation amount of Rs.5,00,000/- claimed by the petitioner is on the higher side.

6. The Motor Accidents Claims Tribunal/Sub-Judge, Dharmapuri had framed two issues namely;

(1) Whether the accident happened due to the rash and negligent driving of the driver of the first respondent’s vehicle?

(2) If it is so, what is the quantum of compensation which is entitled to the petitioner?

7. The petitioner has been examined as P.W.1 before the Motor Accidents Claims Tribunal and on his side five documents were marked as Ex.P-1 to Ex.P-5 namely (1) First Information Report, (2) Wound certificate of the petitioner, (3) Copy of insurance policy, (4) Medical report and (5) Disability certificate. On the side of the respondents, no one appeared and no documents were marked.

8. In order to prove negligence, the petitioner tendered evidence stating that the first respondent’s lorry, driven by its driver, in a rash and negligent manner, dashed against him. This was not opposed by the respondents before the Motor Accidents Claims Tribunal. Hence, the Motor Accidents Claims Tribunal has come to the conclusion that the accident had taken place due to the rash and negligent driving of the driver of the first respondent. As such, the negligence of driver was proved. For proving the negligence, the petitioner has marked the first information report as Ex.P-1. Thereafter, the learned Tribunal has come to a conclusion to award compensation on the basis of petitioner’s evidence and P.W.2 i.e., the Doctor’s evidence.

9. Regarding the injuries sustained by the petitioner, he has given evidence that his left hand and right leg bones were fractured and he also has recurring chest pain. Further, he has injuries on his left leg palms and on his body. Due to this injury, the petitioner underwent treatment in the

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Government Hospital, Dharmapuri and subsequently in a private hospital also. To prove, the same, the petitioner has marked wound certificate. The wound certificate, reveals that the petitioner has sustained two simple injuries and one grievous injury. The petitioner also took treatment in the Salem Bone Joint and Ortho Neurology Centre from 16.12.1999 to 31.1.2000, for which the petitioner marked a medical report as Ex.P-4.

10. For assessing the disability and in support of medical evidence, one doctor, P.G. Elangovan was examined as P.W.2. He has stated in his evidence that due to the said Motor Accident, the petitioner’s right side shoulder bone and pelvic bone at the hip were fractured. This has not healed so far. Due to the compression of the right side shoulder joint, the movement of the right shoulder has been reduced by 20. So, the petitioner is unable to do normal work as before. The doctor, after examining the petitioner, has given the disability certificate for the shoulder and hip bone fracture and had assessed disability at 40% as permanent disability. For body concerned disability, he has assessed it at 20%. Supporting the doctor’s evidence, Ex.P-5, disability certificate has marked.

11. The learned counsel for the claimant/respondent herein cited a case which is reported in 2002 (2) LW, (The New India Assurance Company v. Kartheeswaran and another) in support of the petitioner’s case. The petitioner was a plumber at the time of accident. So, in the absence of any proof of income, the Tribunal has come to a conclusion that his monthly income was Rs.3,000/-. On the basis of the wound certificate, the petitioner’s age was fixed at 19.

12. Considering the above aspects, the Motor Accidents Claims Tribunal has adopted a multiplier as 16 and calculated award as per following formula;-

Compensation = 16 X 36,000 X 20/100 = 1,15,200/- for 20% disability. This is towards loss of earning.

Compensation awarded for continuance of disability and loss of amenities—Rs.40,000/-

For pain and suffering—Rs.40,000/-

For Transport expenses—Rs.1,000/-

For nutrition—Rs.5,000/-

For medical expenditure—Rs.34,280/-

For mental agony—Rs.20,000/-

For permanent disability—Rs.25,000/-

For loss of earning—Rs.1,15,200/-

13. The Motor Accidents Claims Tribunal has come to a conclusion, on the basis of the Insurance Policy which was marked as Ex.P-3, that the vehicle involved in the said accident was insured with the second respondent/insurance company. As such, both the respondents are liable to pay the award amount either individually or jointly into the credit of Motor Accidents Claims Tribunal within a period of two months.

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14. The said award has been challenged by the appellants and the appellants counsel argued that the compensation of Rs.2,80,480/- was on the higher side and that it is not applicable to the facts of the case. The learned counsel further pointed out fixation of the income and age of the claimant as Rs.3,000/- and 19 years respectively are without any acceptable evidence. The Tribunal has also adopted a multiplier of 16 for fixing the quantum of compensation and this multiplier fixed is incorrect. Further the learned counsel pointed out that Rs.25,000/- has been awarded towards permanent disability at 20% and also Rs.40,000/- has been awarded for continuance of disability and loss of amenities and this is an excessive amount.

15. The learned counsel for the respondent argued that the Motor Accidents Claims Tribunal has not committed any error in his judgment for awarding the compensation to the claimant. The Tribunal has awarded the compensation on the basis of the income, age, occupation, disability and nature of injuries. Hence, he prayed the Court to confirm the award.

16. For the foregoing reasons and on consideration of the facts and circumstances of the case, this Court opines that an award of Rs.2,80,480/- passed by the Tribunal, Sub-Court, Krishnagiri in M.C.O.P.No.160 of 2000 dated 28.4.2004 is excessive and instead this Court awards a sum of Rs.2,40,480/- together with interest at the rate of 9% per annum. The compensation award awarded by the Tribunal towards loss of amenities is Rs.40,000/-. This was awarded on an extra head as already the Tribunal has awarded Rs.40,000/- for pain and suffering. As such, the award under the head of amenities as Rs.40,000/- is erroneous. Hence, the Court has deducted Rs.40,000/- and awarded Rs.2,40,480/- (Rupees two lakhs forty thousand four hundred and eighty only) as compensation, which is equitable and fair.

17. Already, this Court permitted the claimant/respondent to withdraw half of the amount, by order dated 23.3.2005. Now, this Court directs the appellant/Insurance Company to deposit the balance compensation amount, out of the total compensation of Rs.2,40,480/- awarded by this Court, within six weeks from the date of receipt of this order, to the credit of M.C.O.P.No.160 of 2000 on the file of Sub-Court, Dharmapuri with interest at the rate of 9% calculated from the date of claim petition till date of payment of this award. If the appellant/Insurance Company has deposited excessive payment, the same is permitted to be withdrawn by them in M.C.O.P.No.160 of 2000.

18. It is open to the respondent/claimant to receive the balance amount lying to the credit of M.C.O.P.No.160 of 2000 on the file of Motor Accidents Claims Tribunal, Sub-Court, Dharmapuri by filing necessary payment out petition in accordance with law.

19. Resultantly, the civil miscellaneous appeal is partly allowed with the above terms and consequently, the award passed by the Motor Accidents Claims Tribnunal, Sub-Court, Dharmapuri in M.C.O.P.No.160 of 2000 is modified. Consequently, the connected miscellaneous petition is closed. Parties are directed to bear their own costs.

Appeal partly allowed.

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[2009 (3) T.N.C.J. 690 (Mad) (MB)]

MADRAS HIGH COURT

(MADURAI BENCH)

BEFORE:

MRS. ARUNA JAGADEESAN, J.

G.G. KANNAN ...Petitioner

Versus

SALEEM ...Respondent

[C.R.P. (PD) (MD) No. 1288 of 2009 and M.P. (MD) No. 3 of 2009, decided on 11th September, 2009]

Civil Procedure Code, 1908—Order 21, Rule 97(2)—Obstruction to possession of immovable property—Petitioner is in possession of property in question—He is not aware of decree—As soon as he came to know he objected by moving application—Executing Court returned petition—Legality of—Held, trial Court ought to have entertained petition, investigate into matter and decide issue whether obstruction was justified or not—Hence, order set aside—Remitted for fresh adjudication. (Paras 6 to 8)

Case law.—1997 (3) SCC 694; AIR 2002 SC 251—referred.

Counsel.—Mr. R. Rajaraman, for the petitioner.

JUDGMENT

MRS. ARUNA JAGADEESAN, J.—This civil revision petition is preferred against the order dated 18.8.2009 passed in unnumbered E.A. of 2009 in E.P.No.249 of 2002 in R.C.O.P.No.73 of 1985 on the file of Principal District Munsif Court, Kumbakonam.

2. An ex parte order of eviction has been passed against one Theskhna-moorthy, who is said to have let out the property to the petitioner executing a rent deed in his favour by getting a sum of Rs.15,000/-(Rupees fifteen thousand only) as consideration on 18.8.1998. According to the petitioner, he was paying the rent of Rs.750/-(Rupees seven hundred and fifty only) per month to the said Theskhnamoorthy till January, 2008. Thereafter, it is alleged that Theskhnamoorthy colluded with the decree holder and refused to receive the rent. Subsequently an ex parte eviction had come to have been passed.

3. Admittedly, the petitioner is not a party to the proceedings in R.C.O.P.No.73/85. It is submitted by the petitioner that he is running a hotel and tea stall in the name and style of “HOTEL SRIRAM CABE”. On an apprehension that he may be evicted forcibly, it is said that he has filed a suit in O.S.No.129 of 2008 on the file of the learned Principal District Munsif, Kumbakonam, for permanent injunction restraining the said Theskhna-moorthy and the decree holders or their agent men or anybody claiming through them from interfering and evicting the plaintiff forcibly except under

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due process of law and the said suit is pending. It appears that the decree holder has filed the execution petition and delivery has been ordered.

4. The petitioner has filed an application under Order 21, Rule 97 of the Code of Civil Procedure, as an obstructor, but the trial Court, without even numbering the petition, has returned it on the ground that the petition is not maintainable. Thereafter, he has represented the said petition sustaining the maintainability of the petition citing various decisions. Again, the Court has returned the petition stating that the previous returns has not been complied with. As against the said order returning the petition filed under Order 21, Rule 97 of Civil Procedure Code, this civil revision petition has been filed.

5. Order 21, Rule 97 of Civil Procedure Code, reads as follows:“97. Resistance or obstruction to possession of immovable property.

—(1) Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction.

(2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained.”

In Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another, reported in (1997) 3 SCC 694, the Honourable Supreme Court has held that the executing Court must first adjudicate upon objections of the appellant on merits under Rule 97(2) read with Rules 101 and 98 instead of insisting upon first handling over possession and then moving of application by the appellant under Rule 99. In another decision reported in AIR 2002 SC 251 in N.S.S. Narayana Sarma and others v. M/s. Goldstone Exports (P) Limited and others, the Honourable Supreme Court has held that all relevant issues arising in the matter on an application under Order 21, Rule 97 or Rule 99 shall be determined by Executing Court and not by a separate suit.

6. When the delivery of possession of property has been obstructed and a dispute arises as to whether the person causing obstruction is a sub-tenant of the judgment debtor or not, the Execution Court should determine the question by doing proper investigation under Order 21, Rule 97 of Civil Procedure Code.

7. It is the case of the petitioner that he is in possession from 1998 onwards running a hotel and tea stall in the name and style of “HOTEL SRIRAM CABE” and he is not aware of the decree passed against one Thekshnamoorthy, who is the decree holder. In this case, that the petitioner has filed a petition under Order 21, Rule 97 of the Civil Procedure Code, stating that he is in possession. The trial Court ought to have entertained the petition, investigate into the matter and decide the issue whether the obstruction was justified or not. As the execution Court to which an application is made under Order 21, Rule 97 of the Code refused to adjudicate upon the obstructions and the claim of the petitioner who obstructed to the execution proceedings it had clearly failed to exercise jurisdiction vested in it by law.

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8. Consequently, the impugned order of the executing Court returning the petition filed under Order 21, Rule 97 of the Code is set aside and it is necessary to direct the executing Court to adjudicate upon the claim of the petitioner as per provision of Order 21, Rule 97, sub-rule (2), CPC read with Order 21, Rule 98 within a period of one month from the date of receipt of a copy of this order.

9. Accordingly, the above Civil Revision Petition is allowed. No costs.Revision allowed.

[2009 (3) T.N.C.J. 692 (Mad) (MB)]MADRAS HIGH COURT

(MADURAI BENCH)BEFORE:

MRS. ARUNA JAGADEESAN, J.J. JOSEPHINE CHRISTOBELL ...Petitioner

VersusP. SUBRAMANIAN ...Respondent

[C.R.P. (NPD) No. 1708 of 2007, decided on 8th September, 2009]Tamil Nadu Buildings (Lease and Rent Control) Act, 1960—

Sections 10 (2)(i), 10 (3)(a)(iii) and 14 (1)(b)—Eviction—Bona fide need—Building in question is in dilapidated condition—Petitioner landlord running business in rented shop—Need premises for his own use—Need of land is bona fide—Hence, petition for eviction allowed—Two months time given to tenant to vacate premises.

(Paras 12 to 15, 20 and 21) Case law.—2002 (2) LW 611; 1996 (6) SCC 475; 2006 (2) CTC 615; AIR

1964 SC 1676—referred.Counsel.—Mr. S. Meenakshi Sundaram, for the petitioner; Mr. S. Kumar,

for the respondent.JUDGMENT

MRS. ARUNA JAGADEESAN, J.—The landlord is the revision petitioner herein. This civil revision petition has arisen out of the proceedings under the Tamil Nadu Buildings (Lease and Rent Control) Act (herein after referred to as the Act) for eviction of the respondent/tenant from the property belonging to the petitioner/landlord under Sections 10(2)(i), 10(3)(a)(iii) and 14(1)(b) of the Act.

2. The petition mentioned premises is a non residential one and the landlord had purchased the same from her predecessors through their Power Agent namely E.Kailasam by a registered sale deed dated 31.5.2004. The respondent is the tenant even with the predecessors of the petitioner from 28.2.1990 and attorned his tenancy to the petitioner from 1.6.2004.

3. The case of the petitioner is that she has been carrying on tailoring business under the name and style of Venus Tailors in a rental building on a monthly rent of Rs.1,200/- in the same area and for the purpose of

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accommodating her staff and to keep the thread stock she had taken another building on a monthly rent of Rs.1,800/- and in all, she has been paying a sum of Rs.3,000/- p.m. as rent and to develop her business and to augment her income, she need the petition mentioned premises. Further the petition mentioned premises is more than 70 years old and it is in a dilapidated condition and therefore, she wants to demolish the premises in question and reconstruct it. She has stated that she has got sufficient means and obtained necessary plan from the Municipality concerned for putting up a new construction.

4. The trial Court upheld the requirements of the landlord and passed an order of eviction on two grounds under Sections 10(3)(a)(iii) and 14(1)(b) of the Act, which was reversed by the Rent Control Appellate Authority at the instance of the tenant. The Rent Control Appellate Authority held that there was no bona fide requirement for her own occupation to carry on the tailoring business and the case for demolition and reconstruction was not made out. Aggrieved by the order of the Rent Control Appellate Authority, this civil revision petition has been filed by the landlord.

5. Though the eviction was sought for on the ground of willful default, but the learned counsel for the petitioner would submit that he is not pressing the said ground. The learned counsel for the petitioner submitted that the appellate authority had come to the conclusion that the petitioner had failed to prove that she is running the tailoring business in a rental building without considering the admission made by the respondent/tenant that the landlord is running the business in a rental premises which situate four shops ahead of the petition premises. The Rent Controller has referred to the said admission made by the respondent in his cross-examination that the landlord is running the tailoring business in a rented shop lying in the same street and the extent is also very small. The landlord filed Ex.P-10 cards to show that she is carrying on tailoring business and it is not the case of the respondent that it does not relate to the said premises. Even in the petition filed by the landlord for eviction, her address is given as Venus Tailors at Door No.84, South Mada Street, Palayamkottai, Tirunelveli District which is not her own building. This aspect has not been disputed by the respondent.

6. It is the case of the petitioner that she does not own any non resi-dential building than the petition premises. In her evidence she has only stated that she owns a residential building in KTC Nagar, which cannot be said that it is suitable for her to run the tailoring business.

7. Therefore, it is evident that the petitioner is running her tailoring business in a rented premises and she does not have any other non residential premises available within the city to satisfy her requirement. The request of the landlord, who is already engaged in a commercial activities but in a rental building cannot be said to be not acting bona fide when she claims the tenancy premises of her own to satisfy her own requirement for continuing her tailoring business by shifting the same to the petition mentioned premises.

8. In the decision of the Principal Bench of this Court rendered in the case of S.V. Janardanam and another v. D. Kivraj Sowkar and two others, 2002 (2) LW 611, it is held that when the landlord, who owns the property filed an application under Section 10(3)(a)(i) or 10(3)(a)(iii) of the Act, the

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authorities under the Act have to draw a presumption in favour of the bona fide requirements of the landlord. It is further held thus:

“It is now well settled that when an application is filed under Sections 10(3)(a)(i) and 10(3)(a)(iii) and the requirements of the provisions are satisfied, it is not for the tenant to say that the property is suitable or not suitable to the petitioners’ requirement. Further when the landlord who owns the property filed an application under Section 10(3)(a)(i) or 10(3)(a)(iii) of the Act, the authorities under the Act have to draw a presumption in favour of the bona fide requirement of the landlord”.

It is the same view of the Honourable Supreme Court in the case of Sarla Ahuja v. United India Insurance Company Ltd., 1998 (III) CTC 679, wherein the Honourable Supreme Court has dealt with the bona fide requirement of the landlord in paragraph 14 of the judgment and has held thus:

“14. The crux of the ground envisaged in Clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation. The Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case, it is open to the Rent Controller to draw a presump-tion that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to who else he can adjust himself without getting possession of the tenants premises. While deciding the question of bona fides of the requirement of the landlord, it is quite unnecessary to make an endeavour as to who else the landlord could have adjusted himself.”

9. It is pertinent to point that in so far as the non residential building is concerned, the Act does not say that if the landlord owned more than one building, he or she would not be entitled to an order of eviction. It is entirely upon the petitioner/landlord to choose which building he or she would require for occupation for his or her sons to carry on their business. Therefore, I am unable to agree with the findings of the Rent Control Appellate Authority that there is no bona fide requirement of the petitioner to carry on the business.

10. As regards the other ground that the petition mentioned premises is a very old building and there is a requirement to demolish the same and further the petitioner needs the building to carry on her tailoring business after putting up a new construction, in the petition she has averred that she had taken steps to get plan sanctioned from the Municipality concerned and had already applied for approval of the plan. She has further stated that she has made arrangements for getting loan from the Bank and so, in all respects had taken steps to demolish the existing superstructure and put up a new construction to suit her requirement. In her evidence, she has reiterated the same.

11. The petition premises is 70 years old according to the landlord and the respondent has not specified about the age of the building in his cross-examination except stating that it would be of 60 years old. The Advocate

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Commissioner has inspected the building and filed his report, which has been marked as Exs.C-1 and C-2 and the Engineer’s Report has been marked as Ex.C-3. The Engineer in Ex.C-3 has given the age of the building as 70 years and has found cracks on the walls. Above said reports of the Advocate Commissioner and the Engineer clearly indicate that the building is an old building and it requires demolition.

12. It is settled law that the report of the Commissioner is part of the records and that therefore, the report cannot be overlooked or rejected without any justification. Exs.P-11 to P-14 are the deposits made by the petitioner in the Nationalized Bank and Post Office and it would prove her means to erect a new building. That apart, her husband is employed in the Tamil Nadu Transport Corporation and the petitioner is also getting sizeable income from the tailoring business.

13. When the building is 60 to 70 years old, which requires immediate demolition, there is nothing wrong in the petitioner proposing to demolish such an old building and instead construct a modern and spacious complex so as to make better use of the property and augment her income. There is no reason to assume that the need for demolition and reconstruction deposed to by the landlord is unnatural or lacking in sincerity and there is no material on record to hold that she was merely attempting to find out a pretest or ruse to get rid of the tenant.

14. The reasoning adopted by the Rent Control Appellate Authority was under a factual misappropriation of evidence. It is seen that the Rent Control Appellate Authority was much impressed by the fact that the respondent filed a suit for permanent injunction against the petitioner not to dispossess him except under due process of law and this had been taken as a factor to hold that the petitioner’s intention was only to evict the tenant. It is brought to the notice of this Court by the petitioner that she filed a memo conceding that she would not disturb his possession except under due process of law and it does not mean that the petitioner should not file an eviction petition against the tenant and she had filed it only with a mala fide intention.

15. Another factor, which the Rent Control Appellate Authority has adverted to, is with regard to the demolition of common walls of the adjacent owners, which according to the Rent Control Appellate Authority without getting consent of the adjacent owners, the common walls cannot be demolished and therefore, it is not possible to demolish the petition mentioned premises does not merit acceptance. It is the case of the petitioner that except the common walls on the northern and southern sides, the other portions could be demolished, for which the consent of the adjacent owners is not necessary. In fact necessary plan has been sanctioned by the Municipality concerned under Ex.P-7 proceedings to erect a new building without demo-lishing the compound wall on the northern and southern side. Therefore, the Rent Control Appellate Authority has wrongly assumed that the entire structure cannot be demolished without getting consent from the adjacent owners.

16. To make out a case under Section 14(1)(b) of the Act, the landlord has to satisfy the authorities that the building is bona fidely required by the

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landlord for immediate purpose of demolishing it and the purpose of such demolition is to erect a new building on the site of the building sought to be demolished. On being satisfied the authorities shall direct the tenant to deliver possession of the building to the landlord.

17. The Constitution Bench of the Honourable Supreme Court in the case of Vijay Singh v. Vijayalakshmi Ammal, 1996 (6) SCC 475, has held that for recording a finding that the requirement of the landlord was bona fide, the authorities have to take into account (i) the bona fide intention of the landlord far from the sole object only to get rid of the tenant, (ii) the age and condition of the building and (iii) the financial position of the landlord to demolish and erect a new building according to the statutory requirements of the Act. It also added that no Court can fix any limit in respect of the age and condition of the building, which is the factor to be taken into consideration along with the other factors. The term “immediate” as qualifying demolition suggests a proximity of purpose and not proximity of time or the urgency of demolition.

18. In the case of S. Venugopal v. A. Karruppusamy and another, 2006 (2) CTC 615, the Honourable Supreme Court has held that as regards the bona fide requirement for demolition and reconstruction, the condition of the building is not material when the landlord wants to demolish the owned structure in order to build a multi-storeyed building so as to get better return of the investment. It held that even if the landlord had not given the details regarding funds for construction, it will not militate against his claim, since raising funds for constructing commercial structure is not difficult as the Bank and Financial Institutions are willing to advance such funds.

19. It has been held by the Honourable Supreme Court in the case of Ramniklal Pitambardardas Mehta v. Indradaman Amratlal Shekh, AIR 1964 SC 1676, that where the case pleaded by the landlord is that he wants to demolish and reconstruct the tenancy premises before occupying the same for his own requirement, the nature of requirement pleaded would be one of the bona fide requirements.

20. The law is well settled that if the authorities failed to consider the materials placed before it, this Court can interfere under Section 25 of the Act to decide as to whether the authority below approached the question from proper angle.

21. For the reasons aforesaid, I am of the considered view that the reasoning of the Rent Control Appellate Authority that the requirement of the petitioner is not bona fide and no case is made out for demolition and reconstruction is not sustainable and hence, the impugned order of the Rent Control Appellate Authority is liable to be set aside and accordingly, it is set aside. Relief of eviction is granted in favour of the petitioner/landlord by allowing this Civil Revision Petition both on the grounds under Sections 10(2)(i), 10(3)(a)(iii) and 14(1)(b) of the Act. No costs. Considering his occupation of the premises for long years, the tenant is given two months time to vacate the premises from the date of this order on condition that he should file an affidavit of undertaking within two weeks from today to that effect, failing which the time granted to vacate the premises shall stand automatically vacated.

Petition allowed.

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[2009 (3) T.N.C.J. 698 (Mad) (MB)]MADRAS HIGH COURT

(MADURAI BENCH)BEFORE:

MRS. ARUNA JAGADEESAN, J.ELANGO ...Petitioner

VersusKASTHURI ...Respondent

[C.R.P. (PD) No. 2123 of 2008 and M.P. No. 1 of 2008, decided on 10th

September, 2009]Civil Procedure Code, 1908—Order 26, Rule 9—Advocate Comm-

issioner—Appointment of—Appointment was sought indirectly seeking to note down factum of possession under pretext of noting of physical features—For such reason appointment cannot be made—Hence, order of appointment by Court below set aside.

(Paras 11 to 14)Case law.—2007 (1) MLJ 513; 2008 (5) CTC 181; 2003 (3) MLJ 391;

2006 (2) LW 159—referred. Counsel.—Mr. K. Srinivasan, for the petitioner; Mr. B. Prahalad Ravi, for

the respondent.JUDGMENT

MRS. ARUNA JAGADEESAN, J.—This civil revision petition is filed by the defendant against the order dated 5.11.2008 passed in I.A.No.512/2008 in O.S.No.176/2008 passed by the learned District Munsif Court, Manaparai.

2. The respondent/plaintiff had filed the above said suit for permanent injunction restraining the petitioner from interfering with the possession and enjoyment of the suit property on the ground that the respondent is a tenant, who is carrying on the Pharmacy Business and that the agreement is oral and the period of tenancy is five years.

3. According to the petitioner, the lease was given to the respondent for a period of three years and the respondent had agreed to vacate the premises on the expiry of the lease period of three years and accordingly on 17.2.2008, he vacated the premises and also got the refund of Rs.1,00,000/-, which he had paid as advance. Pending the suit, the respondent has filed the said application for appointment of an Advocate Commissioner to note down the features relating to the fact that the respondent had been in possession of the property and the electricity service connection had been disconnected to the suit property.

4. It is the case of the respondent that the petitioner was trying to dispossess the respondent unlawfully by resorting to illegal methods of disconnecting the electricity service connection with an ulterior motive to paralyze the business of the respondent and force him to vacate from the suit property.

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5. In the counter filed by the petitioner in the said application, it is stated that the lease was given to the respondent for a period of three years and as agreed, the respondent vacated the premises and also got the refund of Rs.1,00,000/-. Therefore, it was submitted by the petitioner that no Advocate Commissioner can be appointed in order to collect or gather evidence in respect of one party.

6. The Court below appointed an Advocate Commissioner by the impugned order on the ground that for the purpose of elucidating the matter in dispute and to find out as to whether the electricity service connection is disconnected, there is necessity for appointment of an Advocate Comm-issioner and thus allowed the petition by the impugned order. Hence, this civil revision petition has been filed.

7. Mr. K. Srinivasan, the learned counsel for the petitioner would contend that an Advocate Commissioner cannot be appointed to find out as to who is in possession and for collection of evidence and the impugned order of the Court below is beyond the scope of the Order 26, Rule 9 of CPC. He would submit that disconnection of electricity service connection as alleged by the respondent could be proved by documents and such an appointment for the said purpose will only amount to collection of evidence. He would advert to the observations made by this Court in a catena of decisions ascertaining that the factum of possession cannot be ascertained by seeking an appoint-ment of an Advocate Commissioner and it must be proved by evidence.

8. The learned counsel for the petitioner would contend that the contention of the respondent that no prejudice would be caused, if a Commissioner is appointed cannot be a ground for appointment of an Advocate Commissioner.

9. In the case of Chinnathambi and others v. Anjalai, 2007 (1) MLJ 513, it is held thus:

“It is well accepted principle of law that an Advocate Commissioner should not be appointed to find out the possession of the property, which has to be adjudicated only by oral and documentary evidence. Under such circumstances, the order of the lower Court suffers from material irregularity and it is not in accordance with the principles laid down in the above said decisions.”

The said view has been reiterated in the decisions rendered in the cases of M/s. Benz Automobiles Private Limited by its authorised person under the Companies Act, S.Ramamurthy v. C. Mohanasundaram and others, 2003 (3) MLJ 391, Meenakshi v. Vennila and another, 2008 5 CTC 181 and Chandra-sekaran and 6 others v. V. Doss Naidu, 2006 (2) LW 159.

10. This Court carefully considered the arguments of the learned counsel on either side. Order 26, Rule 9 of CPC reads as follows:

“Commission to make local investigation.—In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to

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such person as it thinks fit directing him to make such investigation and to report thereon to the Court:Provided that where the State Government has made the rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.”

11. It is evident from the aforesaid provision of law that a Court may appoint an Advocate Commissioner in any suit where it deems a local investigation is requisite for the purpose of elucidating any matter in dispute. It is necessary to point out that in the affidavit filed in support of the said application, it is stated by the respondent that he is likely to be dispossessed at any time and he need to prove that he is in possession of the suit property, which necessitated him to file this petition for appointment of an Advocate Commissioner to inspect the physical features of the suit property, indirectly seeking to note down the factum of possession under the pretext of noting of the physical features. Such a reason ought to have been rejected by the Court below as untenable.

12. As far as the factum of possession is concerned, the Court alone could gather evidence through the parties and it cannot entrust the said matter to the Advocate Commissioner to collect evidence. Likewise, disconnection of electricity service connection can be proved by other means and evidence and it is not necessary to appoint an Advocate Commissioner for the said purpose. The judgment relied by the respondent rendered in the case of Karthikeyan v. Kannan @ Rajendran, 2008 (2) TLNJ 93 Civil, has no application to the case on hand, as the said suit was filed for specific performance and appointment of Advocate Commissioner was made to note down features of the suit property.

13. Taking into consideration the facts and circumstances involved in this case and also the decisions relied on by the learned counsel for the petitioner, this Court is of the considered view that the impugned order appointing an Advocate Commissioner is unsustainable in law and hence, the same is liable to be set aside and accordingly, it is set aside.

14. In the result, this civil revision petition is allowed. No costs. Consequently, the connected M.P. is closed.

Petition allowed.

[2009 (3) T.N.C.J. 701 (Mad) (MB)]MADRAS HIGH COURT

(MADURAI BENCH)BEFORE:

MRS. ARUNA JAGADEESAN, J.S. GUNASEELAN ...Petitioner

VersusC. VALARMATHI AND OTHERS ...Respondents

[C.R.P. (PD) No. 1769 of 2008 and M.P. No. 1 of 2008, decided on 18th

September, 2009]

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Civil Procedure Code, 1908—Order 7, Rule 11—Rejection of plaint—Scope of—Plaint can be rejected on certain grounds—It is plaint alone which has to be considered—If plaint makes out a case indicating a cause of action, then falsity of claim would be a matter to be determined at time of trial—On bare perusal of plaint nothing indicated which is adverse—Hence, plaint cannot be rejected.

(Paras 13 and 15)Case law.—2009 (2) CTC 819; AIR 1987 SC 1926; 2007 (1) CTC 251;

2005 (5) CTC 748; AIR 1977 SC 2421—referred.Counsel.—Mr. S. Natarajan, for the petitioner; Mr. V.K. Vijaya

Raghavan, for the respondents.JUDGMENT

MRS. ARUNA JAGADEESAN, J.—This civil revision petition is filed to strike off and to reject the plaint in O.S.No.98/2008 on the file of the learned District Munsif Cum Judicial Magistrate, Andipatti.

2. The brief facts, which are essential for the disposal of this civil revision petition, are as follows:

The suit has been filed by the 1st respondent/plaintiff against the petitioner and the respondents 2 and 3 for declaration of her title and for consequential relief of injunction. The suit schedule property is described as S.No.892, 24 acres 80 cents situated at Sanmugasundrapuram Village. The 2nd respondent/2nd defendant is the daughter of the petitioner/1st defendant and the 3rd respondent/3rd defendant is the power agent of the 2nd respondent. The 1st respondent has traced her title to the suit lands on the basis of the sale deed executed in favour of one Rasu Thevar by one Thayammal and the 1st respondent has also referred to the earlier litigation in O.S.No.354/1961, As.No.144/1962 and S.A.No.1023/1964.

3. The said Thayammal is the original owner of an extent of 6.20 acres in S.No.892, 2.77 acres in S.No.880 and 1.57 acres in S.No.881 of Sanmuga-sundarapuram Village, Andipatti Taluk. She has executed a sale deed dated 4.5.1956 to Seeni Thevar registered as document No.589/1956 for 4.80 acres in S.No.892 and she had also executed a sale deed dated 3.8.1961 to Rasu Thevar registered on 28.11.1961 for 2.77 acres in S.No.880, 1.57 acres in S.No.881 and 0.40 acres in S.No.892, excluding the land sold to the Seeni Thevar. One Thangaraj and Seeni Thevar filed a suit in O.S.No.354/1961 against Thayammal and Rasu Thevar for declaration and injunction with regard to 2.77 acres in S.No.880, 1.57 acres in S.No.881 and 0.40 acres in S.No.892. The said suit was dismissed on 6.10.1962 and the appeal filed in AS.No.144/1962 was allowed on 30.9.1963, as against which, Thayammal and Rasu Thevar filed S.A.No.1023/1964 and the same was dismissed on 10.7.1964.

4. Pursuant to the said litigation, the Special Tahsildar by his order dated 24.12.1985 granted patta to Seeni Thevar for S.Nos.880, 881 and 1.40 acres in S.No.892 and to Rasu Thevar for 4.80 acres in S.No.892 by subdividing S.No.892. The legal heirs of Rasu Thevar executed a sale deed dated 30.10.1992 in favour of C.Valarmathi, the 1st respondent. On 18.11.1994 the legal heirs of Rasu Thevar executed a sale deed in favour of M/s. R.J. Textiles for 2.70 acres in S.No.880 and 1.57 acres in S.No.881 and

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0.40 acres in S.No.892/1 and 70 cents in S.No.882/2C. On an application by the petitioner for rectification of patta regarding S.No.892/1 and 892/2, the Tahsildar by his order dated 2.11.1996 rectified patta for S.No.892/2 measuring 4.80 acres in the name of Seeni Thevar and S.No.892/1 in the name of Thayammal. The appeal filed by the 1st respondent to the Revenue Divisional Officer was allowed, as against which, the petitioner filed a revision to the District Revenue Officer and the same was allowed by order dated 26.11.2001. The 2nd revision was filed by the 1st respondent to the Special Commissioner of Land Administration and the same was allowed. The petitioner filed W.P.No.21019/2003 as against the said order on the ground that the 2nd revision is not maintainable under Sections 11 and 12 of the Patta Pass Book Act, 1983. The said writ petition was allowed on 7.7.2006 and the order of the Special Commissioner was set aside, however, the matter was remanded back to the District Revenue Officer for fresh disposal. The order passed in the writ petition was challenged by the petitioner in W.A.No.1170/2006 and the same was allowed, holding that the original order passed by the District Revenue Officer dated 26.11.2001 had become final. The review petition filed by the 1st respondent in No.155/2008 was dismissed as not pressed. Again, the 2nd review was filed by the 1st respondent and the same was dismissed with cost on 22.7.2009.

5. In the mean while, the petitioner had settled the property in favour of his daughter the 2nd respondent herein and when her possession was attempted to be disturbed, she filed O.S.No.115/2007 through her Power of Attorney the 3rd respondent herein. Subsequently, the document in favour of the 2nd respondent had been cancelled by the petitioner. On the said basis, the suit was also withdrawn on 10.7.2009.

6. The petitioner seeks rejection of plaint on the following grounds:-(a) Purposely suppressing vital facts.—Though in the plaint the 1st

respondent has narrated the facts upto the order of the Special Commissioner dated 24.2.2003 and relied upon the consequential patta in favour of the plaintiff, but purposely suppressed the order of the Special Commissioner, which has been set aside in the writ petition in W.P.No.21019/2003 which was confirmed in the writ appeal in W.A.No.1170/2006. According to the petitioner, the above facts relating to the order passed in the writ petition and the writ appeal were purposely suppressed and the order of the Special Commissioner which has been set aside has been relied upon by the 1st respondent in the plaint.

(b) Fraudulently shown previous title deed.—The plaintiff in her title deed dated 30.10.1992 claimed purchase of the suit property from the legal heirs of Rasu Thevar wherein the previous title deed in favour of Rasu Thevar has been shown as the document dated 22.7.1948 in document No.4925 in Book 1 on the file of the Registrar of Madurai. But that document relates to the sale deed executed by one Rama-krishna Mudhaliar in favour of one Sundara Rao relating to a different property and hence, the prior title deed relied upon by the plaintiff is totally irrelevant to the suit property and the sale deed dated 30.10.1992 is a fraudulent

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one and hence, the plaint is liable to be rejected without any further trial.

(c) Distortion of facts.—Though the plaintiff relied upon the sale deed dated 3.8.1961 executed by Thayammal in favour of Rasu Thevar, but by the said document only 40 cents in S.No.892 had been purchased by Rasu Thevar. In the earlier proceedings in AS.No.144/1962, after referring to the sale deed dated 4.5.56 executed by the Thayammal in favour of Seeni Thevar and the sale deed 3.8.61 executed by Thayammal in favour of Rasu Thevar, it has been held that if the suit properties were included in Ex.A-2 document dated 4.5.56 the sale deed in favour of Seeni Thevar, then Thayammal had no right to convey the same property in favour of the 2nd defendant, Rasu Thevar under Ex.B-1, sale deed dated 3.8.1961 executed in favour of Rasu Thevar the plaintiff’s vendor. In spite of the said finding, the vendor of the plaintiff has not taken any steps to rectify either to get another sale deed from Thayammal for 4.80 acres in S.No.882 or to rectify the same. Therefore, according to the petitioner the plaintiff has no right to file the present suit on the basis of the document dated 30.10.1992 claiming 4.80 acres in S.No.892.

(d) In the plaint it has been purposely described as if Seeni Thevar the father of the petitioner, who purchased the property under sale deed dated 4.5.56 has sold the same to M/s.RJ Textiles by sale deed dated 18.11.1994 and this statement is made knowingly. The legal heirs of the Rasu Thevar has executed a sale deed in favour of the M/s. R.J. Textiles and the derivation of the title to the vendor has been described in paragraph 4 of the sale deed, wherein the sale deed executed by Thayammal in favour of Rasu Thevar dated 3.8.1961 registered on 28.11.1961 had been relied upon and after Rasu Thevar the legal heirs have succeeded and executed the sale deed in favour of M/s. R.J. Textiles. According to the petitioner, since the patta alone stood in the name of Seeni Thevar, he was asked to sign the document as 5th person as patta holder and at that time, he had no knowledge of the sale deed in favour of the 1st respondent and he has put his signature only as a patta holder. Though the sale deed has been executed by the legal heirs of Rasu Thevar in favour of M/s. R.J. Textiles in the plaint, it has been purposely distorted as if Seeni Thevar sold the property.

(e) In the cause of action paragraph the document dated 3.8.1961 in favour of Rasu Thevar is shown as prior title deed, but by the said document only 40 cents were purchased by Rasu Thevar. There is no reference to the previous civil cases and further the document dated 2.11.1992 has been shown as plaintiff title deed, wherein there is no such document dated 2.11.1992. The petitioner, who has been in continuous possession and succeeded before the District Revenue Officer which has become final, has obtained patta and in such circumstances and

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in the factual matrix, the plaintiff has no right to rely upon the order of the Special Commissioner, which has been set aside.

7. The main issue in the suit is as to who is the owner of S.No.892 measuring 4.80 cents. According to the 1st respondent, both Seeni Thevar and Rasu Thevar were cordial and they claimed title through their vendor Thayammal. The suit is not filed during his life time. Seeni Thevar during his life time purchased the lands measuring 4.80 acres in S.No.892 whereas Rasu Thevar had purchased from Thayammal on 3.8.1961 an extent of 4.80 acres. There was dispute regarding the identity of the lands purchased by the Seeni Thevar and Rasu Thevar and therefore, Seeni Thevar filed O.S.No.354/1961 on the file of the District Munsif, Periyakulam on the ground that he had purchased 2.77 acres in S.No.880, 1.57 acres in S.No.881 and 0.46 (on the west) acres in S.No.892 in all 4.80 acres.

8. The trial Court dismissed the suit and the first appeal filed by the petitioner’s father was allowed on 30.9.1963. Thayammal and Rasu Thevar challenged the decree and judgment of the lower appellate Court in the second appeal, which was dismissed, confirming the judgment and decree of the trial Court, which according to the 1st respondent had become final in respect of the survey numbers purchased. By reason of the above suits and appeals filed by Seeni Thevar his ownership was declared for 2.77 acres in S.No.880, 1.57 acres in S.No.881 and 0.46 acres in S.No.892 in all 4.80 acres. So according to the 1st respondent, after the disposal of the above litigation, except in respect of 46 cents in S.No.892, Seeni Thevar has nothing to do with the remaining extent in S.No.892.

9. The learned counsel for the 1st respondent would contend that after the above litigation both Seeni Thevar and Rasu Thevar approached the Special Tahsildar and sought patta for their holdings and accordingly patta was granted to them by the Special Tahsildar in proceedings dated 24.12.1985. He would submit that in the patta proceedings S.No.882/2C had been referred to and it was observed that S.No.882/2C was in enjoyment of Rasu Thevar vendor of the 1st respondent and S.No.882/2C did not belong to Seeni Thevar nor to Thayammal and thus the dispute between Seeni Thevar and Rasu Thevar was settled completely and by reason of the judgment of the Civil Court Seeni Thevar did not claim 4.80 acres in S.No.892. He would submit that the 1st respondent claims right under Rasu Thevar who was the exclusive owner of 4.80 acres in S.No.892 and the 1st respondent had purchased the said extent on 30.10.1992 under the sale deed executed by the legal heirs of the Rasu Thevar in favour of the 1st respondent as Rasu Thevar died subsequently. He would further submit that while tracing title to the lands the legal heirs mistakenly mentioned in the sale deed dated 30.10.1992 that the lands were purchased by Rasu Thevar on 22.7.1948 and the reference to the sale deed dated 22.7.1948 is obviously a mistake. In the earlier suits and the appeals, the sale deed in favour of Rasu Thevar executed by Thayammal was referred to as 3.8.1961 and thus, the 1st respondent has become the absolute owner of 4.80 acres in S.No.892 as per her sale deed and therefore, her title is perfect.

10. As regards the lands sold to M/s. R.J. Textiles by sale deed dated 8.11.1994, four items have been sold i.e., 2.77 acres in S.No.880, 1.57 acres in S.No.881 and 1.40 acres in S.No.892 and 70 cents in S.No.882/2C. It is

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submitted by the learned counsel for the 1st respondent that though 46 cents has been granted in the decree of the Civil Court to Seeni Thevar, but he was granted patta for 1.46 cents in S.No.892. Therefore, he would contend that claiming right on the basis of the sale deed dated 4.5.56 by the petitioner is totally fraudulent especially when his father himself had contended in the suit that he was not the owner of the lands measuring 4.80 acres in S.No.892 and claimed lands in the civil suit in O.S.No.354/61 more particularly 0.46 acres in S.No.892.

11. The facts involved in this case indicate that the predecessors of both the parties though acquired lands by title deeds but in the prior litigation their entitlement to their respective properties were not determined in accordance with their respective title deeds. Even the revenue authorities have granted patta to the respective parties not in accordance with the extent mentioned therein. The complexity of facts requires complete investigation which can be done only at the stage of the trial when both the parties adduce evidence both oral and documentary. Admittedly, there are some mistakes in the plaint in tracing out the title of the vendor of the plaintiff and on the said ground the plaint cannot be rejected or struck off.

12. It is the case of the respondent that in appropriate proceedings, the ownership of Seeni Thevar the vendor of the plaintiff has been held only for 0.46 cents in S.No.892, but whereas the patta has been granted to him for 1.40 acres. Another important aspect in this case is that Seeni Thevar has joined the legal heirs of Rasu Thevar in executing the sale deed in favour of M/s. R.J. Textiles. It is the contention of the learned counsel for the petitioner that since patta stood in his name he had joined the legal heirs of Rasu Thevar in executing the documents, which on the face of it does not merit acceptance. There are many factors which have to be gone into in detail and considering the entire materials placed on record, it cannot be said that the 1st respondent has suppressed purposely many facts or distorted the facts. It is no doubt true that there are some discrepancies and controversies in tracing the title of the vendor and in order to determine the relevancy of documents and to settle the real controversy the trial of the suit is necessary and it cannot be said that the plaintiff is relitigating the matter especially in the factual matrix of the case.

13. It is to be noted that when this Court is called upon to exercise jurisdiction to reject the plaint under Order 7, Rule 11 of CPC, the averments made in the plaint and the documents filed along with the plaint, which form part thereof alone will be taken into consideration and this Court cannot consider the defence, pleas or materials submitted by the defendant for the purpose of rejecting the plaint. In other words, what can be a defence to the plaintiff cannot be taken into consideration for deciding as to whether the plaint should be rejected or not under Order 7, Rule 11 of CPC.

14. The learned counsel for the petitioner drew the attention of this to the decisions rendered in the cases of Samar Singh v. Kedar Nath and others, AIR 1987 SC 1926, M. Gnanasambandam v. M. Raja Appar, 2009 (2) CTC 819, Poppat Jamal & Sons by its Managing Partner v. N.M. Venkatachalapathy @ Babulal and another, 2007 (1) CTC 251, A. Sreedevi v. Vicharapu Rama-krishna Gowd, 2005 (5) CTC 748, Nesammal and another v. Edward and another, 1998 (II) CTC 537 and T. Arivanandam v. V. Satyapal and another,

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AIR 1977 SC 2421, in support of his contention that when the plaint is based on fraud and misrepresentation and the plaintiff had come with unclean hands, then this Court exercise its power and reject the plaint. The learned counsel would further contend that when a party to a litigation is said to be guilty of abuse of process of Court, this Court can exercise its power under Article 227 to strike off the plaint.

15. The power under Order 7, Rule 11 of CPC speaks about rejection of plaint in four circumstances. The first one being non disclosure of cause of action and the last one is of a bar on suit under any provision of law. The other two grounds on which the plaint could be rejected relate to valuation and non payment of court-fee, which are not matters concerned with the present case. The disputed questions cannot be decided at the time of considering an application filed under Order 7, Rule 11 of CPC. For an order under Order 7, Rule 11 of CPC, it is the plaint alone which has to be considered and if the plaint makes out a case indicating a cause of action, then falsity of the claim would be a matter to be determined at the time of trial and if at all the suit is found to be vexatious or based on false assertion, then the plaintiff would be liable for compensatory cost under Section 35-A of CPC. The intention of the party concerned is to be gathered primarily from the tenor and terms of pleadings taken as a whole. At the same time, it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair splitting technicalities.

16. For the reasons aforesaid, the plaint cannot be thrown out at the threshold and this civil revision petition for striking off and rejection of plaint cannot be entertained.

17. In the result, this civil revision petition is dismissed. No costs. Consequently, the connected M.P. is closed.

Petition dismissed.

[2009 (3) T.N.C.J. 708 (Mad) (MB)]MADRAS HIGH COURT

(MADURAI BENCH)BEFORE:

MRS. ARUNA JAGADEESAN, J.P. SIVASUBRAMANIAN AND ANOTHER ...Petitioners

VersusR. SARAVANAN AND ANOTHER ...Respondents

[C.R.P. (PD) No. 1242 of 2007, decided on 18th September, 2009]Civil Procedure Code, 1908—Order 6, Rule 17—Amendment of

plaint—Suit for permanent injunction—Later amendment of plaint seeking declara-tory relief in view of stand taken in written statement—Application rejected on ground that it would introduce new cause of action and change character of suit—Hence, this petition—Held, for substantial justice Court may allow amendment—Hence, order of Court below set aside. (Paras 9 to 11)

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Case law.—1998 (1) CTC 529; AIR 1993 Gauhati 50; AIR 1986 Ori 236; AIR 1971 SC 2366—referred.

Counsel.—Mr. M. Ajmalkhan, for the petitioner; Mr. P. Muthu-vijayapandian, for the respondents.

JUDGMENT

MRS. ARUNA JAGADEESAN, J.—This civil revision petition is filed by the plaintiffs against order dated 22.6.2007 passed in I.A.No.68/2007 in O.S.No. 167/2006 by the District Munsif, Periyakulam.

2. The brief facts are as follows:-The petitioners/plaintiffs filed the above said suit for permanent

injunction restraining the respondents/defendants from interfering with their peaceful possession of the suit property. The petitioners claim title to the suit property by virtue of the registered sale deed dated 3.6.1982 and claim to be in possession and enjoyment of the suit property. The respondents filed a written statement disputing the title of the petitioners to the suit property, which necessitated the petitioners to file an application in IA.No.68/2008 under Order 6, Rule 17 of CPC for amendment of the plaint seeking declaratory relief in view of the stand taken by the respondents in the written statement. The said application has been resisted by the respondents contending that they would be prejudiced if such an amendment is allowed. The Court below dismissed the said application on the ground that if such an amendment is allowed, it would introduce a new cause of action and change the character of the suit. Aggrieved against the said order, this civil revision petition has been filed by the plaintiffs.

3. Mr. M. Ajmalkhan, the learned counsel for the petitioner would contend that the amendment sought for is a pre trial amendment and the Court below ought to have taken a liberal approach and by allowing such an amendment, no new cause of action would be introduced nor the character of the suit would be changed. He would rely upon the decision of this Court rendered in similar circumstances in the case of Kalavathi v. Chitra, 1998 (1) CTC 529, wherein this Court has held that an amendment not changing the nature of the suit and not affecting the rights of the parties has to be allowed in the interest of the parties concerned. That is also a case where the defendant disputed the title of the plaintiff, which necessitated the plaintiff to seek for an amendment of the plaint filed originally for permanent injunction and this Court allowed such an amendment holding that the amendment would not result in change of cause of action and no prejudice is likely to be caused to the other party.

4. In the instant case, all the facts and circumstances which would have entitled the plaintiff to claim declaration of right in question have been pleaded in the plaint and therefore, it cannot be said that the respondents would be prejudiced in the event of allowing such an amendment. It is an amendment which does not constitute an addition of new of cause of action or raise a different issue, but merely a different approach to the same facts.

5. In the case of Amar Singh Chetri v. Bijay Chandra Modak and others, AIR 1993 Gauhati 50, the suit was filed for declaration and permanent injunction and when the defendant trespassed into the property during the pendency of the suit, conversion of the plaint was sought for into one for

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declaration and recovery of possession. On the said facts, the High Court of Gauhati held that no prejudice or irreparable injury was likely to be caused to the defendant and the amendment was necessary to adjudicate the real issue between the parties.

6. In another decision rendered in the case of Abdul Hannan Khan and others v. Chandra Sekhar Patra and others, AIR 1986 Orissa 236, the facts are more or less similar to that of this case that the suit was filed for permanent injunction and the defendant had pleaded title and possession and hence amendment of the plaint was sought for including the title of the plaintiff and prayer for possession and it was held that the amendment should be allowed as the nature of the suit would not be changed and the defendant would not be prejudiced.

7. The main object of Order 6, Rule 17 of CPC is that the Courts should get at and try the merits of the case that comes before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties without causing injustice to the other side.

8. It has been held by the Honourable Supreme Court in the case of Haridas Girdharidas and others v. Vasadaraja Pillai and another, AIR 1971 SC 2366, that the rule of conduct of the Court is that “however negligent or careless the first omission may have been, and however, late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side.” In the said decision, in a suit for possession, the plaintiff applied to amend the pleadings and it was held that no prejudice was being caused to the opposite party and the relief claimed also was within the period of limitation.

9. Therefore, it is well settled that under Order 6, Rule 17 of CPC, a Court of law trying the suit has very wide powers, in the matter of allowing amendments of pleadings and all amendments which will aid the Court in disposing of the matters in dispute between the parties are as a rule allowed subject to the law of limitation. So, it is a duty which has been cast upon the Courts so that the substantial justice may be done for which alone the Court exists. The provisions of Order 6, Rule 17 of CPC have been included to do justice and not to shut out justice merely on technicality of pleadings.

10. In view of the aforesaid reasons, the impugned order passed by the Court below dismissing the application for amendment cannot be sustained and accordingly, it is set aside.

11. In the result, this civil revision petition is allowed. No costs.Petition allowed.

[2009 (3) T.N.C.J. 710 (Mad) (MB)]MADRAS HIGH COURT

(MADURAI BENCH)BEFORE:

MRS. ARUNA JAGADEESAN, J.

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G. PITCHIAH AND OTHERS ...PetitionersVersus

G. RADHA KRISHNAN ...Respondent[C.R.P. No. 712 of 2009 and M.P. Nos. 1 and 2 of 2009, decided on 15th

September, 2009]Civil Procedure Code, 1908—Section 17—Jurisdiction of Civil

Court—Partition suit—Properties lying in two different cities—In either District Civil Court having jurisdiction to try suit.

(Paras 9 and 10)Counsel.—Mr. P. Prabhakaran, for the petitioners; Mr. T.A. Ebenezer, for

the respondent.JUDGMENT

MRS. ARUNA JAGADEESAN, J.—This civil revision petition is filed against the order dated 8.4.2009 in O.S.No.55/2005 passed by the learned Additional District Judge (FTC-II) Tirunelveli, dismissing the preliminary issue raised by the petitioners/defendants, holding that the above said Court has got jurisdiction to try the suit.

2. The respondent/plaintiff has filed the above said suit before the learned Additional District Judge (FTC-II) Tirunelveli for partition of his 1/4th share in the suit property. The suit was resisted by the petitioners that the properties purchased by their father by name Gurusamy Konar were be-queathed in favour of the defendants by a registered Will dated 25.1.1993. Further, they have raised an issue inter alia that Gurusamy had purchased some other properties along with the suit schedule properties in the name of the plaintiff, but the plaintiff has wilfully suppressed the same and has not included in the partition suit.

3. The main contention put forth by the learned counsel for the petitioners is that the item (1) of the suit schedule properties alone is situated in the Tirunelveli District, whereas the other properties value of which is more than one crore of rupees mentioned in the suit schedule properties are lying in the Tuticorin District. Since the respondent is residing at Tirunelveli, he has purposely included the item (1) of the suit schedule properties standing in the name of the plaintiff, the market value of which is very meagre in order to bring the suit under the jurisdiction of the Tirunelveli Court.

4. The petitioners have already moved this Court in Tr.CMP.No.165/2007 under Section 24 of CPC to withdraw the suit in O.S.No.55/2005 from the file of the learned Additional District Judge (FTC II), Tirunelveli and transfer the same to the District Court at Tuticorin and this Court directed the trial Court to decide the point of jurisdiction as a preliminary issue. Again Tr. CMP. No.80/2008 was moved by the petitioners before this Court and this Court directed the trial Court to comply with the earlier order made in Tr.CMP.No.165/2007 dated 14.12.2007 and decide the issue regarding territorial jurisdiction as a preliminary issue within a period of four weeks from the date of receipt of a copy of the order.

5. Pursuant to the order passed by this Court, the trial Court took up the issue regarding territorial jurisdiction as a preliminary issue and after

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hearing the arguments of either side held that since a portion of the suit property i.e., item (1) was situated within the jurisdiction of the Tirunelveli Court, the trial Court has got jurisdiction to try the suit.

6. Section 17 of CPC provides that where a suit is to obtain a relief in respect of the suit property in the jurisdiction of different Court, the suit can be brought in any one of the Courts and such Court can deal with the whole of the property though some portion of it is situated outside the jurisdiction.

7. It has been held by the Honourable Supreme Court in the case of Madhao Deshpande v. Madhav Dharmadhikari, AIR 1988 SC 1347, that where the dispute regarding the properties located within the jurisdiction of two Courts was referred to arbitration and one of the properties was located within the jurisdiction of one of the Courts, that Court will have jurisdiction to entertain the award. It held that returning of the award by that Court for presentation to the Court within whose jurisdiction the other properties forming subject-matter of the dispute were located was not proper.

8. The Division Bench of this Court in the case of T.S.S. Natarajhun v. T.S.S. Neelakanthan and another, 2009 (1) MLJ 117, has held that for filing a suit for partition if any fraction of the immovable property is situate within the jurisdiction of the Court, it is sufficient to try the case in the Court where the suit is instituted.

9. Admittedly, the suit filed by the plaintiff is for partition. The claim of the plaintiff is that the suit schedule properties belonged to his father and he is entitled to 1/4th share along with his other brothers. The properties except item (1) of the suit schedule properties are situated at Tuticorin and the suit has been laid by the respondent in the Court at Tirunelveli where item (1) suit schedule of property is situate.

10. In view of the settled position of law and in view of the provisions of Section 17 of CPC, I have no hesitation to hold that the suit filed by the respondent before the Additional District Court-Cum-FTC II, Tirunelveli is valid and thus, the trial Court has rightly decided the preliminary issue, which do not suffer from any illegality or infirmity, warranting interference by this Court. Therefore, there are no merits in this Civil Revision Petition and the same is liable to dismissed.

11. In the result, this civil revision petition is dismissed. No costs. Consequently, the connected M.Ps. are closed.

Petition dismissed.

[2009 (3) T.N.C.J. 712 (Mad) (MB)]MADRAS HIGH COURT

(MADURAI BENCH)BEFORE:

R.S. RAMANATHAN, J.MUJEEB RAHMAN AND OTHERS ...Petitioners

VersusTHE DISTRICT COLLECTOR AND OTHERS ...Respondents

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[W.P. (MD) Nos. 4409 to 4414 of 2009 and M.P. (MD) Nos. 1 and 2 of 2009, decided on 16th September, 2009]

Tamil Nadu Hill Areas (Prevention of Trees) Rules, 1957—Rule 10—Tamil Nadu Hill Areas (Prevention of Trees) Act, 1957—Sections 3 and 11—Transfer of Property Act, 1882—Section 55(1)(a)—Tamil Nadu Stamp (Prevention of Undervaluation of Instruments) Rules, 1968—Rule 3(1)—Trees on land—Claim of—Petitioner entered into an agreement of sale with original owner viz., 9th respondent for sale of land—Earlier to this agreement respondent entered into agreement with others for cutting of trees—Respon-dent obtained orders for cutting trees—Petitioner objected to—Held, in the agreement there is no mention of sale of trees and petitioner not paid stamp duty for trees while getting registration—Hence, petitioner having no right over trees—Respondent permitted to cut trees within extended time.

(Paras 12, 19, 20, 26 to 29, 31 to 34, 36 and 37)Case law.— AIR 1968 SC 612; AIR 1991 All 193; 1951 (2) MLJ 611—

referred.Counsel.—Mr. V.R. Venkatesan, for the petitioner; Mr. K. Balasub-

ramaniam, Additional Government Pleader, for the respondents 1 to 6; Mr. M. Ajmal Khan, for the respondents No. 7 and 8; Mr. T.A. Ebenasan, for the 9 th

respondent.JUDGMENT

R.S. RAMANATHAN, J.—Heard both sides.2. In the above six writ petitions, common facts and law are involved

and the respondents are also common in all the writ petitions and hence, with the consent of both parties, all the writ petitions were taken together for final disposal.

3. The properties in Survey Nos.835/31 acres 1.29 cents, S.No. 784/143C-acre 11.52 cents, S.No.835/15- acre 19.72 cents, S.No.835/19 - acre 17.31 cents, S.No.835/24- acre 121.29 cents, S.No.836/2 - acre 21.33 cents, S.No.641-acre 7.51 cents, S.No.646- acre 5.64 cents, S.No.774- acare 5.85 cents, S.No.775- acre 8.74 cents, S.No.784/8C- acre 13.01 cents, S.No.784/8B acre 37.05 cents, S.No.784/8D- acre 12.99 cents, S.No.784/14D- acre 12.01 cents at Pandrimalai and in Manalur village in S.No.195/2- acre 3.98 cents, S.No.200-acre 1.39 cents, of a total extent of 336.37 acres situate at Pandrimalai and in Manalur village belonged to the 9th respondent.

4. It is admitted that the properties are estate lands with trees and the petitioners, in all the cases, entered into an agreement of sale with the original owner viz., the 9th respondent, for the sale of lands, by agreement, dated 30.8.2008 and as per the agreement of sale, 339 acres situate in various survey Numbers mentioned above, were agreed to be sold for valid con-sideration of Rs.50,000/- per acre and as per the agreement, the petitioners have also agreed to purchase the properties for the said purchase price, immediately free from all encumbrance. Therefore, supplementary agreement has been entered into between the petitioners and the 9th respondent, dated 27.11.2008 and thereafter, a registered sale deed was

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also executed by the 9th respondent in favour of the petitioners on 9.3.2009 conveying various items of properties stated therein.

5. According to the petitioners, they have purchased not only the lands, but also the trees grown on that lands. It is the further case of the petitioners that later they came to know on 16.6.2008 that the 9th respondent had entered into an agreement with the 7th respondent for the sale of trees in respect of trees grown in Survey Nos.835/24 and 836/2 and on 15.7.2008, the 9th respondent also gave a registered power of attorney in favour of the 8th

respondent, authorising him to cut the trees grown on those lands and apply for getting necessary permits from the respondents 2 and 3 and without disclosing the earlier agreement of sale entered into by the 9th respondent with the 7th respondent, a sale deed was executed by the 9th respondent in favour of the petitioners.

6. Further, the 7th respondent applied for the grant of permits from the respondents 1 and 2 for cutting the trees, in pursuance to the agreement and on 4.2.2009, an order was issued by the first respondent in favour of the 8 th

respondent, who is the power agent of the 7th respondent and on 2.3.2009, an order was passed by the 2nd respondent in respect of trees grown in Survey Nos.836/2 and 835/24 respectively. According to the petitioners, as per the sale deed, dated 9.3.2009, the petitioners became the absolute owners of the landed properties, which includes trees and therefore, the respondents 7 and 8 have no right to cut and remove the trees as per the agreement of sale entered into with the 9th respondent. On coming to know of the cutting order given by the respondents 1 and 2, the petitioners preferred an appeal before the District Collector/1st respondent and before the 2nd respondent under Rule 10 of the Tamil Nadu Hill Areas (Prevention of Trees) Rules, 1957 and a show cause notice was given by the 2nd respondent to the 7th respondent why the cutting order should not be cancelled and thereafter, no action has been taken by the respondents 1 and 2.

7. It is further stated in the affidavit that the 7th respondent filed a suit O.S.No.100 of 2009 on the file of the Sub-Court, Dindigul, against the 9 th

respondent and Thiru. Mujeeb Rahman, who is the petitioner in W.P. (MD) Nos.4409 and 4412 of 2009, restraining them, preventing the plaintiff in that, suit from cutting and removing the trees from the suit properties, as per the agreement, dated 16.6.2008 and in that suit, all the petitioners herein, were not parties, except the petitioner in W.P.(MD) Nos.4409 and 4412 of 2009 and an injunction order was granted by the Sub Court, Dindigul and that was under challenge in C.M.A.No.1 of 2009, on the file of the District Court, Dindigul and the same is pending before the District Court, Dindigul. As the petitioners have purchased the properties in pursuance to the agreement of sale, dated 30.8.2008 and 27.11.2008, the petitioners have become the owners of the properties, which includes the trees grown on that properties and therefore, the 7th respondent, by suppressing the agreement of sale, got the cutting order issued by the respondents 1 and 2 on 4.2.2009 and 2.3.2009 and as the 7th respondent has suppressed the material facts about the agreement of sale and subsequent sale deed, the respondents 1 and 2 are having power to cancel the permission and though a show cause notice has been given by the 2nd respondent, no further action has been taken and in these circumstance, the petitioners filed the above writ petitions, directing

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respondents 1 and 2 to invoke the Rule 10 of the Tamil Nadu Hill Areas (Preservation of Trees) Rules, 1957 and to cancel the cutting order, dated 4.2.2009 issued by the 1st respondent and the order, dated 2.3.2009 issued by the 2nd respondent.

8. The respondents 7 and 8 have filed the counter affidavit stating that the 7th respondent entered into an agreement of sale for cutting all the trees found in Survey Nos.835/24 and 836/2, of an extent of 142 acres and a registered power of attorney was given by the 9th respondent in favour of the 8th respondent, directing the 8th respondent to cut and remove the trees and to apply for necessary permission from the respondents 1 and 2 for cutting the trees and on the basis of the agreement of general power, the 8th respondent has applied for permit on 6.8.2008 seeking permission from the respondents 1 and 2 and permission was granted on 4.2.2009 and 2.3.2009, much before the sale deeds were executed in favour of the petitioners by the 9th respondent and therefore, the petitioners have no right to question the right of the respondents 7 and 8 to cut and remove the trees and as the respondents 7 and 8 took steps to cut and remove the trees, the petitioner in W.P.(MD) No.4412 of 2009 prevented them and hence, the CMA was filed in C.M.A.No.1 of 2009 and that is pending before the District Court, Dindigul and the petitioners have no right to challenge the order of the respondents 1 and 2 and if they are aggrieved by the order of the respondents, they will have to establish their right, by filing necessary suits, in the Civil Courts and they have no right to seek the writ of mandamus as prayed for in these writ petitions.

9. The learned counsel appearing for the petitioner Mr. V.R. Venkatesan, contended that admittedly, the respondents 7 and 8 have not cut and remove the trees as per the agreement, dated 16.6.2008. By virtue of the sale deed, dated 9.3.2009, the landed properties were sold to the petitioners by the 9th respondent and under those sale deeds not only the lands but also the trees, which are attached to earth are also presumed to have been sold to the petitioners and hence, the 7th respondent cannot claim any right over the trees, by virtue of the agreement of sale in his favour, in respect of trees, having regard to the fact that the lands were sold before the trees were cut down by the respondents 7 and 8.

10. Mr. V.R. Venkatesan, the learned counsel appearing for the petitioners further submitted that as per Section 8 of the Transfer of Property Act, Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property in the legal incidents thereof. Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth.

11. Further as per interpretation Clause 3 of the said Act, “ attached to the earth” means—(a) rooted in the earth, as in the case of trees and shrubs; (b) imbedded in the earth, as in the case of walls or buildings; or (c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached. Therefore, contended that after the execution of the sale deed in their favour, the title to the trees also transferred to them and hence,

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the respondents 7 and 8 cannot claim any right over the trees. Therefore, he contended that the respondents 1 and 2 should not have issued the impugned orders in favour of the respondents 7 and 9 as they have no right to the trees.

12. Mr. V.R. Venkatesan, the learned counsel appearing for the petitioners also relied upon the judgment of the Honourable Supreme Court reported in AIR 1968 SC 612, in the case of Divisional Forest Officer, Sarahan Forest Division of Simla Forest Circle, Himachal Pradesh and another v. Daut and others, wherein it has been stated in para 6, there can be no doubt that trees are capable of being transferred apart from land, and if a person transfer trees or gives a right to a person to cut trees and remove them it cannot be said that he has transferred land. But we are concerned with a different question and the question is whether under Section 11 of the Act trees are included within the expression “right, title and interest of the land-owner in the land of the tenancy”. It seems to us that this expression “right, title and interest of the landowner in the land” is wide enough to include trees standing on the land. It is clear that under Section 8 of the Transfer of Property Act, unless a different intention is expressed or implied, transfer of land would include trees standing on it. It seems to us that we should construe Section 11 in the same manner and also relied upon the judgment reported in AIR 1991 Alld. 193 in the case of Vishwa Nath and others v. Ramraj and others, wherein it has been held that there may be a presumption that when land is transferred, all things attached to the earth, such as trees and shrubs, are also transferred along with the land in view of the provisions of Section 8 read with Section 3 of the Transfer of Property Act, 1882. But there can be no presumption in a case vice versa.

13. On the other-hand, Mr. Ajmal Khan, the learned counsel appearing for the respondents 7 and 8 contended that after the agreement of sale entered into, by the 9th respondent with the 7th respondent, the 9th respondent ceased to be the owner of the trees and hence, what has been conveyed by the 9th respondent to the petitioners are the landed properties alone without trees as the trees have already been sold to the 7th respondent.

14. He further submitted that immediately after the agreement of sale and the general power of attorney, executed by the 9th respondent, the respondents 7 and 8 applied for permit on 6.8.2008 and after conducting various enquiries and obtaining reports from the various officers, orders were passed on 4.2.2009 and 2.3.2009 by the 2nd and 3rd respondents for cutting the trees and hence, there is no infirmity in the cutting order passed. Further, on the date of passing of the cutting order, the sale deeds were not executed by the 9th respondent in favour of the petitioners and an agreement of sale in respect of the immovable properties does not create any interest in the immovable properties and hence, on 4.2.2009 and 2.3.2009, the petitioners have no right over the trees even assuming that under that sale deeds trees were also conveyed to the petitioners. Therefore, he contended that on the date of passing of cutting order, the 7th respondent was the lawful owner of the trees, by virtue of agreement of sale and hence, the cutting orders cannot be challenged.

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15. He further brought to my notice, the various provisions of the Tamil Nadu Hill Areas (Preservation of Trees) Rules, 1957. As per Section 3 of the said Act, no person shall be cut or fall or remove any tree except as per rule framed in that Act and under Rule 10 permission granted can be cancelled or modified if the committee has reason to believe that any person to whom permission was granted furnished the particulars which are materially incorrect or has contravened any provisions of these rules or the conditions subject to which permission was granted. As the respondents 7 and 8 did not contravene any of the rules or have not suppressed any material particulars, the permission cannot be cancelled or modified.

16. Mr. M. Ajmal Khan, the learned counsel appearing for the respondents 7 and 8 also brought to my notice the recitals in the agreement, dated 27.11.2008 between the 9th respondent and the petitioners, wherein it has been stated that the possession has been handed over for limited purpose of residing and to do the work of removing the shrubs in the estate and Mr.Mujeeb Rahman, who is the agreement holder or his servants were not permitted to cut the valuable trees from the estate. Relying on that passage in that agreement, Mr.M.Ajmal Khan, the learned counsel appearing for the respondents 7 and 8 submitted that it has been specifically provided that trees should be cut only by the petitioners as per the agreement and, therefore, what has been sold to the petitioners is actually the lands and not trees, and in any event, as the 7th respondent has purchased the trees and entered into agreement, he is entitled to remove the trees and the subsequent sale deed in favour of the petitioners will not have the effect of preventing the 7th respondent from cutting the trees.

17. Before going into the power of the respondents 1 and 2 to cancel or modify the cutting order, we will have to see what is the effect of the sale deeds in favour of the petitioners and whether under the sale deeds, the trees were also conveyed along with the lands, by virtue of Section 8 of the Transfer of Property Act, and if so, will it prevent the 7th respondent from cutting the trees.

18. No doubt under Section 8 of the Transfer of Property Act, unless the different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof, which includes all place attached to the earth. Therefore, as per the above section, under a transfer of property, all the interest, which the transferor is then capable of passing in the property will be transferred.

19. As rightly contended by Mr.M.Ajmal Khan, the learned counsel appearing for the respondents 7 and 8 that earlier to the date of the sale deed, the 7th respondent had entered into an agreement of sale for cutting of trees in two survey numbers and therefore, while executing the sale deed the transferor has no right to convey the trees, as he had already sold to the 7th respondent and he was not capable of transferring the trees on 9.3.2009. Therefore, it was contended by the learned counsel appearing for the respondents 7 and 8, Mr.M.Ajmal Khan, that under the sale deed, the trees could not have been transferred.

20. To appreciate the contention of Mr.M.Ajmal Khan, the learned counsel appearing for the respondents 7 and 8, we will have to ascertain

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whether under the sale deed, dated 9.3.2009, the 9th respondent sold the lands as well as the trees to the petitioners. Though the petitioners entered into an agreement of sale deeds, dated 30.8.2008 and 27.11.2008, under those agreements, they cannot claim any interest in the immovable properties and if at all they can claim any interest in the immovable properties they can do so only under the sale deed, dated 9.3.2009.

21. In a case where the vendor purports to have sold the entire properties but actually there is some deficiencies either in respect of area or estate or right, the rights of the purchaser, has been stated by Darts in his book “On vendors and purchasers” (8th edition)Vol. I, page 565 as follows: “The purchaser will be entitled to compensation for a deficiency in quantity even though the estate is not sold professedly by measurement”.

“In Williams on Vendor and Purchaser (4th Edition page 725, it is stated as follows:“The purchaser therefore, is as a rule entitled if it turns that there is a mere deficiency whether of area, estate or right and whether sub-stantial or not between the property described in the contract and that offered in fulfilment, thereof to enforce the specific performance of the contract, taking such interest in the property sold as the vendor has and receiving compensation for the deficiency. For example where a vendor described the land sold as containing a much greater quantity than its actual area, he was obliged at the purchaser’s suit to convey what estate he had and to allow compensation for the deficiency”.

22. Further in Halsbury’s Laws of England Vol.29, paragraph 669, is as follows:

“After completion of the contract, the transaction is at an end as between vendor and purchaser and as a general rule, no action either at law or in equity can be maintained by either party against the other for damages or compensation on account of errors as to quantity or quality of the property sold unless such error amounts to a breach of some contract, or warranty contained in the conveyance itself, or unless some fraud has been practised by the purchaser.”

23. The above passages were discussed in the judgment reported in 1951(2) MLJ page 611 in the case of M. Delli Gramani and another v. C.R. Ramachandran, and in that case it has been held that in the absence of fraud on the part of the vendor in case of deficiency of property conveyed under the sale deed and where specific boundaries were given the purchaser has no right to claim compensation.

24. Further as per Section 55 of the Transfer of Property Act, the rights and liabilities of buyers and seller have been stated and as per Section 55(1)(a) the seller is bound to disclose to the buyer any material defect in the property or in the seller’s title thereto, of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover.

25. Further, it is stated in the said section that any omission to make such disclosures as are mentioned under section para 1 Clause (a) and para (5) Clause (5) is fraudulent. As per Section 55(1)(a) when the seller did not disclose any material defect in the property which buyer is not aware of and

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could not with ordinary care discover, the same can be treated as fraudulent one.

26. In this case, according to the learned counsel appearing for the petitioners, Mr.V.R.Venkatesan, they are not aware of the agreement of sale in respect of the trees entered into between the 9th respondent and the 7 th

respondent and had they known the same, they would not have entered into the sale transactions by paying huge consideration and hence, fraud has been committed on them.

27. Though, it is not necessary for me, to go into the aspect of fraud alleged to have been committed on the petitioners by the 9th respondent, having regard to limited purpose of arriving at a decision, whether the petitioners are entitled to relief prayed for on the ground that the permits were obtained by suppressing the material particulars by the 7th respondent, I have to give a finding what is the nature of property that was conveyed under the sale deed, dated 9.3.2009 and whether it includes the trees also.

28. Admittedly, in the sale deed, there is no mention about the trees. As contended by the learned counsel appearing for the petitioners, trees attached to the earth are also immovable properties and hence, they ought to have been mentioned as they have their own value.

Under Section 27 of the Indian Stamp Act—“The consideration and all other facts and circumstances affecting the chargeability of any instrument with duty, or the amount of the duty with which it is chargeable, shall be fully and truly set forth therein”.

29. Admittedly, the trees have got potential values and therefore, while executing the sale deeds, if the trees are also conveyed, it must have been mentioned and value of the trees must have been stated in the instrument of sale.

30. It is further evident by Rule 3(1) of the Tamil Nadu Stamp (Prevention of Undervaluation of Instruments) Rules, 1968, wherein it has been stated that in any instrument, number of items of property, the market value of each of the items shall be specified separately.

31. Rule 5 deals with the principles of determination of market value and as a matter of fact in the sale deed dated 9.3.2009 declaration has been made by the 9th respondent about the nature of properties, which were sold and a perusal of that statement given under Rule 3(1) of the Tamil Nadu Stamp (Prevention of Undervaluation of Instruments) Rules, 1968, would make it clear that, market value was arrived at only for the lands and no value has been fixed for the trees grown on the lands.

32. Thus, it is made clear that under the sale deed, dated 9.3.2009, only the lands were sold. This is fortified by the fact that even on 16.6.2008, the 9th respondent has sold the right of cutting trees in favour of the 7 th

respondent.33. Further the 9th respondent has executed a registered power of

attorney in favour of the 8th respondent on 15.7.2008, wherein it has been specifically stated that the power has been given for cutting trees marked and to get necessary permission from the respondents 1 and 2. Therefore, if the petitioners are prudent persons they would have applied for encumbrance, while ascertaining the right of the 9th respondent to convey

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the property and they would have found out that already the trees were sold. Therefore, from these facts, prima facie it is made clear that what has been sold under the sale deeds and only the lands not trees.

34. Further, even admitting the case of the petitioners that they have purchased the properties on the basis of representation given by the 9 th

respondent that along with the lands, trees were also conveyed and later they came to know that even earlier to that, the trees were sold by the 9 th

respondent to the 7th respondent, it can be inferred that fraud has been committed on the petitioners by the 9th respondent by making false represen-tation without disclosing the earlier agreement of sale of trees and in that event, the petitioners are only entitled to file the suit for damages and they have no right to challenge the cutting orders granted by the respondents 1 and 2.

35. According to me, under Rule 10 of the Tamil Nadu Hills (Preservation of Trees) Act, 1957, permission can be cancelled only when the person whom permission was granted and gave a materially incorrect or has contravened any provisions of these rules the conditions subject to which the permission was granted and in this case, it cannot be stated that the respondents 7 and 8 have suppressed the particulars, while obtaining the permission or violated any condition subject to the permission was granted. Hence, the permission orders issued by the respondents 1 and 2 in favour of the respondents 7 and 8 cannot be challenged by the petitioners. If the petitioners are aggrieved by the facts that the 9th respondent has committed fraud on them, it is always open to them to file necessary suits claiming compensation and if any suit is filed, the suit without being influenced any of the observations made in these writ petition, the same shall be disposed on the basis of the evidence and pleadings by the learned Judge.

36. In the result, these writ petitions are dismissed. However, it was represented by Mr.M.Ajmal Khan, the learned counsel appearing for the respondents 7 and 8 that they are not able to cut and remove the trees by reason of the injunction order passed in these writ petitions and the cutting orders permitted the respondents 7 and 8 to cut and remove the trees only upto 7.9.2009 and in the event of the writ petitions are dismissed, direction may be issued to the respondents 2 and 3 to extend the period to enable the respondents 7 and 8 to cut and remove the above trees.

37. As the writ petitions are dismissed, the respondents 2 and 3 are directed to grant sufficient time to the respondents 7 and 8 to cut and remove the trees, as per the cutting orders, dated 4.2.2009 and 2.3.2009 issued by the respondents 2 and 3 respectively, in favour of the respondents 7 and 8. Consequently, connected miscellaneous petitions are also dismissed. No costs.

Petition dismissed.

[2009 (3) T.N.C.J. 722 (Mad) (MB)]

MADRAS HIGH COURT

(MADURAI BENCH)

BEFORE:

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T.S. SIVAGNANAM, J.

K.V.S. PALANIVEL ...Petitioner

Versus

THE DISTRICT COLLECTOR AND OTHERS ...Respondents

[W.P. (MD) No. 7270 of 2009 and M.P. Nos. 1 to 4 of 2009, decided on 16th

September, 2009]

Registered Contractor—Cancellation of registration—Person who issued show cause notice conducted inquiry without affording opportunity of hearing and passed order against contractor—Validity of—Held, though there is no specific provisions under Rules for providing personal hearing yet respondent ought to have afforded opportunity of personal hearing—Hence, respondent directed to appoint another person equivalent to BDO for conducting enquiry and afford personal hearing before passing order.

(Para 20)

Case law.—2006 (1) CTC 689; 1975 (1) SCC 70; AIR 1978 SC 930; 1989 (1) SCS 229; AIR 1990 SC 1984; AIR 1978 SC 930; 2006 (II) SCC 548—referred.

Counsel.—Mr. AR.L. Sundaresan, Senior Counsel, for M/s. AL. Gandhi-mathi, for the petitioner; Mr. D. Sasikumar, Government Advocate, for the respondents 3 to 4; Mr. K. Baalasundaram, for the respondent 5.

JUDGMENT

T.S. SIVAGNANAM, J.—The petitioner is a registered Contractor with the third respondent Panchayat Union, who has participated in several tenders called for by the respondent. While so, in response to a tender notification issued by the first respondent on 17.6.2009 calling for tenders in respect of three items, the petitioner was inclined to participate. As per the notification tender forms could be purchased on 25.6.2009 up to 4.00 p.m. and the tenders were to be submitted by 26.6.2009 up to 4.00 p.m. and tenders to be opened at 4.30 p.m. on the same day. The petitioner submits that in order to participate in the tender, he went to the office of the respondents for remitting the cost of the tender forms at 3.40 p.m. and presented a challan for remittance of the cost and it was informed that the work for the tender was called for and already earmarked for certain preferred contractors of the ruling party and hence, the tender forms could not be issued. The petitioner would further submit that this led to arguments and by that time it was 4.10 p.m. and the petitioner was forced to leave the office of the respondents. It is further submitted that the respondents lodged a false complaint before the police against the petitioner and another contractor one Mr. Selvam, as if they had picked up quarrel and used unparliamentary words and the said Mr. Selvam caught hold of the Assistant Block Development Officer by his collar and threatened to assault him. Based on such complaint made by the respondents, a case was registered in Crime No.220 of 2009 on the file of the Alangudi Police for the alleged offence under Sections 294(b), 323 and 353, IPC. As the sections are bailable, the petitioner and Selvam were released on bail on the same day. Thereafter, the third respondent issued a show cause

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notice on 26.6.2009 calling upon the petitioner to state as to why he should not be removed from the list of contractors.

2. On receipt of the show cause notice, the petitioner submitted his explanation on 7.7.2009 denying all the allegations levelled against him. It is submitted that in the meantime, the third respondent issued another tender notification dated 10.7.2009 calling for tenders for 72 items of work and the cost of the tender forms was to be paid by 4.00 p.m. on 15.7.2009 and the tenders to be submitted by 4.00 p.m. on 16.7.2009 and to be opened on the same day at 5.00 p.m. According to the petitioner, he came to know of the said tender only on 16.7.2009, when some of the registered contractors were going to the office of the first respondent for submission of their tender forms. Therefore, the petitioner has filed W.P.No.6413 of 2009 before this Court challenging the notification and an order of interim injunction has been granted by this Court and the writ petition is pending. It is further stated that the third respondent subsequently issued another tender notification dated 21.7.2009 and as per the said notification tender forms to be obtained up to 30.7.2009 and to be submitted on 31.7.2009 up to 4.00 p.m. and to be opened at 4.30 p.m. on the same day. It is further alleged that the petitioner was not intimated about the said tender. At that stage of the matter, on 29.7.2009, an order dated 9.7.2009 was served on the petitioner stating that his name has been removed from the role of registered contractors for the alleged misconduct under Section 17(3) of the Tamil Nadu Panchayats (Preparation of Plans and Estimates for Works and Mode and Conditions of Contracts) Rules, 1998 (hereinafter referred to as “the Rules”). The said order dated 9.7.2009 is impugned in the present Writ Petition.

3. Mr. AR.L. Sundaresan, learned senior counsel appearing for the petitioner would first contend that the impugned order is in violation of principles of natural justice, as no enquiry was conducted pursuant to the show cause notice. He would further contend that the impugned order is based on the same allegations, in which a criminal case is pending in Crime No.220 of 2009 on the file of the Alangudi Police Station and when the same is pending investigation, if the petitioner is required to answer to the present charge, then he would be put to much prejudice. It is further submitted by the learned senior counsel that no witnesses were examined, no opportunity of cross-examination was permitted and there has been a total denial of principles of natural justice. He would further submitted since, the allegations in the criminal case and that in the show cause notice are identical, there cannot be any parallel proceedings. In support of his contentions, the learned senior counsel placed reliance upon the decision of the Division Bench of this Court in Indian Overseas Bank, represented by its Deputy General Manager, Chennai and another v. P. Ganesan and others reported in 2006 (1) CTC 689, wherein the Division Bench directed that the departmental proceedings should be deferred till the conclusion of the criminal trial, since both are based on the same set of facts. Next, the learned senior counsel would contend that in the impugned order apart from the allegations contained in the show cause notice, it has been stated that the petitioner and the another contractor were in a drunken mood. The learned senior counsel for the petitioner would submit that this allegation did not find place in the show cause notice and therefore, the impugned order is vitiated on this ground also.

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4. The learned senior counsel would further submit that though the impugned order was dated 9.7.2009, it has been despatched by the dispatch clerk in the office of the respondent on 27.7.2009. In the interregnum period, the notification dated 10.7.2009 and 27.7.2009 have been issued in respect of other works and this itself establishes that there is mala fide on the part of the respondent in trying to keep away the petitioner from participating in the subsequent tenders. The further case of the petitioner is that since the Block Development Officer, who also is the Commissioner of the Panchayat is the complainant in the criminal case, show cause notice has also been issued by the same officer and therefore, he cannot conduct any enquiry. The learned senior counsel for the petitioner would also contend that though the impugned order is dated 9.7.2009, the same was placed before the council of the Panchayat only on 30.7.2009. Therefore, such order is nullity in the eye of law, since, the third respondent has no jurisdiction to take such a decision. Further the despatch Clerk does not have any jurisdiction to despatch such an order on 27.7.2009, when the decision of the council was taken only on 30.7.2009. On the above stated grounds, the learned counsel for the petitioner submitted that the impugned order is liable to be set aside.

5. Mr. D. Sasikumar, learned Government Advocate appearing for the respondents 1 to 3 would submit that the allegations levelled against the petitioner are serious in nature and such conduct cannot allowed to be condoned. He would further submit that the action initiated against the petitioner is just, proper and legal and that the petitioner has been afforded opportunity to submit his explanation and after considering all the factors, the impugned order came to be passed and as such it does not call for any interference. The learned Government Advocate would further submit that Rule 13(7) of the said Rules does not contemplate any personal hearing or inquiry and the order is valid in the eye of law. The learned Government Advocate would further submit that as regards the allegations regarding the drunken behaviour, when the criminal complaint was lodged, there was no direct evidence since the accused were not available and hence the same was not mentioned in the complaint. The learned Government Advocate would submit that council ratified the decision on 30.7.2009.

6. Mr. K. Baalasundaram, learned counsel appearing for the fifth respondent by relying upon the counter affidavit would submit that the Deputy Block Development Officer (Administration) informed the petitioner that the cost for the tender schedule cannot be remitted after 4.00 p.m. It is, thereafter, the petitioner picked up quarrel scolded and assaulted the Deputy Block Development Officer and the criminal behaviour of the petitioner was informed to the Alangudi Police Station. On that the complaint has been taken on file in Crime No.220 of 2009. It is further submitted that the third respondent issued show cause notice dated 26.6.2009 and after receiving the reply, impugned order dated 9.7.2009 has been passed and the council also proved the same by resolution dated 30.7.2009. It is further submitted that the said Rules are applicable in respect of the present work and action has been initiated solely under the said Rules and under Rule 13(7) of the Rules. In terms of the said Rule there are contingencies under which the name of the Contractor could be removed from the approved list and one such contingency is “any other reason”. In the instant case, it has fallen within the

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said contingency “any other reason” and therefore, the learned counsel would submit that the impugned order is valid. He would also submit that the rule does not contemplate conducting of an enquiry and, therefore, the procedure adopted is proper and there is no violation of the principles of natural justice.

7. I have carefully considered the rival contentions put forward by all the parties and perused the materials available on record.

8. The issue to be considered in the present matter is as to whether the impugned order dated 9.7.2009 is legally valid and whether it is vitiated on any of the grounds as stated by the learned senior counsel for the petitioner. Admittedly, the impugned order is an order which has the effect of removing the name of the petitioner from the list of registered contractors. It is the serious matter as it involved civil consequences and the contractor is shut out from being able to participate in any of the bids or auction. Therefore, the Hon’ble Supreme Court and this Court have consistently held that when a department or an agency decides to either blacklist or remove a contractor, it is incumbent that the principles of natural justice should scrupulously followed.

9. The learned senior counsel placed reliance upon a decision in Erusian Equipment & Chemicals Ltd. v. State of West Bengal reported in 1975 (1) SCC 70, wherein the Hon’ble Supreme Court has held in paragraph 20 as follows:

“(i) Blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the Government for purpose of gains. The fact that a disability is created by the order of blacklisting indicates that the relevant authority is to have an objective satisfaction. Fundamentals of fair play require that the person concerned should be given an opportunity to represent his case before he is put on the blacklist.

(ii) In J. Vilangandan v. Executive Engineer (P.W.D.), Ernakulam reported in AIR 1978 SC 930, while following the judgment in Erusian Equipment case (cited supra), has stated that while conceding that the State can enter into contract with any person it chooses and no person has a fundamental right to insist that the Government must enter into a contract with him, held that the fact that a disability is created by the order of black listing indicates that the relevant authority is to have an objective satisfaction. Fundamentals of fair-play require that the person concerned should be given an opportunity to represent his case before he is put on the black-list.

(iii) In Raghunath Thakur v. State of Bihar reported in 1989 (1) SCC 229 while considering a case where the person granted a right to vend liquor was placed in a black listing in respect of future contracts, the Honourable Supreme Court has observed that even if the rules do not express so, it is an elementary principle of nature justice that parties affected by any order should have right of being heard and making representations against the order. In that view of the matter, the last portion of the order in so far as it directs blacklisting of the appellant in respect of future contracts, cannot

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be sustained in law. Further, the decisions in the case of Raghunath Thakur and Erusian Equipment as referred supra have been followed by the Honourable Supreme Court in B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. & Ors. reported in (2006) II SCC 548 and reiterated the principles laid down.”

10. In view of the law laid down by the Hon’ble Supreme Court in the aforementioned decision, it is necessary that the petitioner should be afforded an opportunity and making a representation against the order, even though the rules do not specifically provided for. That apart, the Hon’ble Supreme Court has held that any order should be a speaking order and supported by reasons. It is relevant to note that the Honourable Supreme Court in a decision reported in S.N. Mukherjee v. Union of India, AIR 1990 SC 1984, observed that in view of the expanding horizon of the principles of natural justice, the requirement to record reasons can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi judicial functions the legislator, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement.

11. The respondents being an administering authority is bound to act fairly and reasonably and all the actions of the respondents have to satisfy the touchstone of reasonableness. The requirement to record reason is incumbent and Courts have consistently held that an order devoid of reasons is in violation of principles of natural justice and liable to be set aside.

12. The impugned order is devoid of any reasons, there is no considera-tion of the explanation submitted by the petitioner and therefore, this Court finds that the impugned order does not satisfy the tests laid by the Hon’ble Supreme Court in the above mentioned decisions. Inasmuch as there has been violation of principles of natural justice, the petitioner has not been afforded an opportunity of personal hearing and the order impugned is not a speaking order.

13. The next contention, which has been raised by the petitioner which needs to be gone into is that whether parallel proceedings can be allowed to be conducted. The learned senior counsel placed reliance upon the decision of the Division Bench in the case of P. Ganesan as cited supra. The said case was a service matter and after annualizing the law and subject, the Division Bench held as follows:

“13. It is thus fairly settled law that on basic principles proceedings in a criminal case and a departmental proceedings can go on simultaneously, except in some cases where departmental proceedings and criminal case are based on the same set of facts and the evidence in both the proceedings are same. It is in these cases the Court has to decide taking into account special

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features of the case whether simultaneous conti-nuance of both would be proper. There can be no straight-jacket formula as to in which case the departmental procee-dings have to be stayed, and the Court will have to decide in the given circumstances of a particular case as to whether disciplinary proceedings should be interdicted, pending criminal trial.”

14. Therefore, as per the law declared, it is necessary that each and every case has to decided based on its facts. In my view, the present issue is regarding registration of a contractor. It is true that no person can claim as a matter of right to enter into a contract with the Government. Equally true is the principle that the respondent being a limb of the State cannot pick and choose while entering into a contract with private parties. But, however, the petitioner being a registered contractor, he is bound by the rules and regulations in this regard and the terms and conditions of his license. The registration does not confer upon him any unfettered right. Such right is liable to be interfered, if circumstances warrant. In the instant case, a complaint has been lodged making certain allegations against the petitioner. It is true that there is also a criminal case. But the petitioner enjoys certain privileges by virtue of being a registered contractor. This registration is given by the respondent Department and they have sufficient power to regulate such permission granted.

15. Considering the facts and circumstances of the present case and the rights said to have been infringed, I am of the view that this is not a case where the Departmental proceedings have to await the decision of the criminal Court. Therefore, the department shall be entitled to proceed further in the matter. It is further to be noted that the petitioner has not raised any such objection on receipt of the show cause notice. On the contrary, the petitioner promptly submitted his explanation denying the entire incident and also requested that action may be dropped against the petitioner. Therefore, the petitioner having acquiesced of himself with the position and participated in the procedure, by submitting his reply, cannot at this stage of the matter, contend that the proceedings should not go on. It is to be noted that in the present case, show cause notice has been issued in pursuant to the powers conferred under Rule 13(7) of the Rules. Therefore, the contention that the Departmental action should await the ultimate result of the criminal complaint is liable to be rejected.

16. The learned senior counsel had submitted that the person who lodged the complaint is the Block Development Officer and he is also the person, who issued the show cause notice and no enquiry can be conducted by the same officer. It is true that the complaint has been given by the Block Development Officer, in the discharge of his duties as the Commissioner of the Panchayat, his duties and responsibilities are different. He is the public authority functioning under the statute. Therefore, such an interpretation cannot be given, since, he is the Competent Authority under the Rules to deal with the matter. The learned senior counsel for the petitioner would contend that no opportunity of personal hearing was granted to the petitioner. Per contra, the learned Government Advocate as well as the learned counsel for the fifth respondent would contend that the Rules does not contemplate an

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opportunity of personal hearing and therefore no such hearing is required to be given.

17. In J. Vilangandan v. Executive Engineer (P.W.D.), Ernakulam reported in AIR 1978 SC 930, while following the judgment in Erusian Equipment case (cited supra), has stated that while conceding that the State can enter into contract with any person it chooses and no person has a fundamental right to insist that the Government must enter into a contract with him, held that the fact that a disability is created by the order of black listing indicates that the relevant authority is to have an objective satisfaction. Fundamentals of fair-play require that the person concerned should be given an opportunity to represent his case before he is put on the black-list.

18. In Raghunath Thakur v. State of Bihar reported in 1989 (1) SCC 229 while considering a case where the person granted a right to vend liquor was placed in a black listing in respect of future contracts, the Honourable Supreme Court has observed that even if the rules do not express so, it is an elementary principle of natural justice that parties affected by any order should have right of being heard and making representations against the order. In that view of the matter, the last portion of the order in so far as it directs blacklisting of the appellant in respect of future contracts, cannot be sustained in law.

19. The decisions in the case of Raghunath Thakur and Erusian Equipment as referred supra have been followed by the Honourable Supreme Court in B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. & Ors. reported in (2006) II SCC 548 and reiterated the principles laid down.

20. Therefore, in view of the ratio laid down by the Honourable Supreme Court as stated above an order of black listing has civil consequences for future business of person concerned and the person affected by an order has a right of being heard and making a representation against any order even though the Rules do not provide specifically. Therefore, in order to ensure that there is fairness in the procedure, I deem it appropriate to direct the enquiry to be conducted by another Block Development Officer, instead of Mr. C. Rengarajan Commissioner, who has been impleaded in his personal capacity as the fourth respondent. Thus, in view of the discussion in the foregoing paragraphs, it is to be held that,—

(i) There has been a violation of the principles of natural justice in the above matter, since the impugned order is devoid of reasons.

(ii) Though, there is no specific provisions contemplated under the Rules for providing a personal hearing, in view of the law laid down by the Hon’ble Supreme Court, the respondents ought to have afforded an opportunity of personal hearing.

(iii) In view of the facts and circumstances of the case, there is no bar for the Department to proceed with the matter and the same need not await the decisions in the criminal complaint.

21. In view of the above, the writ petition is allowed, the impugned order is set aside and the matter is remanded back to the first respondent for fresh consideration on the following terms:

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(i) The first respondent is directed to nominate an officer equivalent in the rank of Block Development Officer for the purpose of conduct of the enquiry in respect of the show cause notice issued on 26.6.2009 against the petitioner.

(ii) The officer so nominated shall issue notice to the petitioner calling upon him to appear in person for an oral enquiry and hear the petitioner as well as such other persons, who in the opinion of the said enquiry officer shall be proper and necessary parties for the enquiry and pass orders on merits and in accordance with law within a period of four weeks from the date of receipt of a copy of this order. No costs. Consequently connected miscellaneous petitions are also closed.

Petition allowed.

[2009 (3) T.N.C.J. 730 (Mad)]

MADRAS HIGH COURT

BEFORE:

M. JAICHANDREN, J.

BARBERS RESIDING AT PATTAMANGALAM

PULIAN STREET, MAYILADUTHURAI TOWN,

REPTD. BY THEIR REPRESENTATIVES ...Appellants

Versus

KALYANASUNDARAM ...Respondent

[Second Appeal No. 1329 of 1995, decided on 10th September, 2009]

Civil Procedure Code, 1908—Order 1, Rule 8—Necessary party—Declaratory suit—Claim made on ground that pond is ‘Ambattan Kuttai’ and barber community have right to use it—Defendant claiming it to be Pora-mboke pond i.e., Government pond—First appellate Court holding that Government is necessary party—Held, Government record shows property belong to Government hence, non-impleadment is fatal—Thus, first appellate Court rightly dismissed suit—No interference warranted. (Para 20)

Case law.—1971 (1) MLJ 190; 2002 (1) CTC 338—referred.

Counsel.—Mr. S. Sounthar, for the appellants; Mr. A. Dhiraviyanathan, for the respondent.

JUDGMENT

M. JAICHANDREN, J.—This second appeal has been filed against the judgment and decree, dated 2.3.1995, made in A.S.No.205 of 1993, on the file of the District Court, Nagapattinam, reversing the judgment and decree, dated 30.7.1993, made in O.S.No.108 of 1989, on the file of the Sub-Court, Mayiladuthurai.

2. The plaintiffs in the suit are the appellants in the present second appeal. The plaintiffs had filed the suit for declaration and for injunction. In

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the plaint filed in the suit, in O.S.No.108 of 1989, it has been stated that the suit property is a pond called “Ambattan Kuttai”, with an extent of 31,087 Sq.Ft., surrounded by a live fence on all four sides, in T.S.No.399 in Pulian Street, Pattamangalam, Mayiladuthurai. It has been further stated that the plaintiffs and the others, belonging to the Barber community, living in Pulian Street, have been using the pond to carry on their occupation for over five generations. Every year the plaintiffs and the others belonging to their community were taking away the fish caught by them from the pond. The pond which had been given to the ancestors of the plaintiffs, as a consideration for carrying on their occupation, has continued to be in their enjoyment till the filing of the suit. Therefore, the pond has been named as “Ambattan Kuttai”. However, there are no documents relating to the plaintiffs’ rights, in respect of the said pond. It is only a practice that has been followed for hundreds of years, in Tanjore District.

3. It has been further stated that the plaintiffs and their ancestors have been using the pond and its adjacent lands, by growing various trees and by using their produce. The plaintiffs are carrying on their occupation of hair cutting for the people of the village. The pond is maintained for not only the benefit of the plaintiffs, but also for the common benefit of the villagers. While so, the father of the plaintiffs, namely, Jaganatha Pandithar, had submitted a petition to the District Collector, on 19.9.1961, to grant patta, in respect of the pond, to the members of the plaintiffs’ community.

4. It has been further stated that the defendant, who is working in an insurance company, had encroached upon the suit property, along with his men and had attempted to build a house. Therefore, the plaintiffs had lodged a complaint with the revenue authorities, as well as with the police. In such circumstances, the plaintiffs had filed the suit praying for the reliefs of declaration and permanent injunction.

5. In the written statement filed on behalf of the defendant it has been stated that the suit property is a poramboke pond and it is not called as “Ambattan Kuttai”, as claimed by the plaintiffs. It is false to claim that the plaintiffs and the members of their community alone are having the right of catching fish from the pond. Further, the claim of the plaintiffs that certain rights had been given to the plaintiffs and their ancestors, as a consideration for carrying on their operation of barbers in the village concerned, had been denied. The District Collector had, in fact, refused to grant patta, as claimed by Jaganatha Pandithar, the father of the plaintiffs. The defendant had further claimed that he is an ex-service man belonging to Adi Dravidar community. The defendant had stated that the pond has not been used as a pond and since there is no way for the water to reach the pond only certain wild varieties of plants have grown in the area. Further, since the area has been converted into housing plots, the defendant had submitted a petition to the District Collector for granting of patta to the defendant in the suit property. It has also been stated that the plaintiffs had removed the house built by the defendant in the suit land. The plaintiffs do not have any legal right to file the suit, as it is a Government poramboke and the suit is liable to be dismissed for making false claims and for not impleading the Government, as a party to the suit.

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6. In view of the averments made on behalf of the plaintiffs, as well as the defendants, the trial Court had framed the following issues for consideration:

“(1) Whether the plaintiffs have fishing rights and the right to use the suit pond for carrying on their occupation and whether they are entitled to get permanent injunction based on the same?

(2) Whether the suit has been improperly filed as it has been done in a representative capacity?

(3) What other reliefs the plaintiffs are entitled to?”

7. The trial Court had decreed the suit by its judgment and decree, dated 30.7.1993, holding that the plaintiffs are entitled to the reliefs as prayed for therein. The claims made by the defendant had not been believed by the trial Court. The trial Court had come to the conclusion that the documents filed, in support of the claims made by the defendant, have been created for the purpose of the suit. From the statements made by the defendant, in his complaint, dated 5.8.1989, marked as Ex.B-3, to the police authority concerned, at Nagapattinam, the trial Court had found that the defendant had stated that he had put up a hut in a portion of the suit property, since he has no other place to live. However, from the document marked as Ex.B-2, dated 17.10.1989, it is found that the petition submitted by the defendant, dated 11.10.1989, requesting for assignment of a portion of the suit property, in favour of the defendant, had been rejected by the District Collector, Thanjavur, stating that there is a prohibition by the State Government to make assignments in areas relating to water bodies. Therefore, the claim of the defendant that he had put up a hut even before his request had been rejected, on 17.10.1989, cannot be accepted. The trial Court had also held that Exhibits B-7 to B-9, which are photographs showing certain constructions, cannot support the claim of the defendant that he had put up a hut and that he has been living in the suit property, prior to the year 1989. Further, since the plaintiffs have been in enjoyment of the suit property from the year 1961, as seen from Ex.A-1, the defendant could not have been living in the suit property by putting up a hut in the year 1985. From Ex.A-5, the trial Court had found that the plaintiffs have been in enjoyment of the suit property from the year 1950.

8. In the written statement filed by the defendant he had claimed that both the plaintiffs, as well as the defendant are encroachers in the suit property. Since the suit property belongs to the Government the plaintiffs cannot claim a better right in it. However, there is no evidence adduced on behalf of the defendant, in support of such a claim. Further, the trial Court had also found that, in Exhibits A-1 and A-5, marked in support of the claims made by the plaintiffs, the suit property has been described as “Ambattan Kuttai”. There is no denial of the description of the suit property as “Ambattan Kuttai” by the defendant, either during his chief examination or during his cross-examination. Further, during the cross-examination the defendant had stated that he has no patta in respect of the suit property and that the Government had not granted any permission to put up a hut to live in a portion of the suit property. Further, he had accepted that he had not paid any tax in that regard. Even though the defendant had claimed that he

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had built a house in a portion of the suit property, in the year 1985, on the oral assurance given by the Tahsildar concerned, he had not chosen to examine the Tahsildar as his witness, nor had he made such a claim in his written statement filed in the suit. Further, he had admitted, during the cross-examination, that he had no evidence to show that he has been living in the suit property for nearly five years, as claimed by him.

9. From the evidence of the plaintiffs’ witnesses the trial Court had come to the conclusion that there was a pond, in T.S.No.399, described as “Ambattan Kuttai” and that it belonged to the village community. Therefore, the claim of the defendant that it is a `Grama Poramboke’ cannot be true. From the description of the property in the sale deed, dated 14.5.1950, marked as Ex.A-5, relating to T.S.No.400, it could be seen that the suit property, in T.S.No.399, was known as “Periyari Kuttai”. Further, the trial Court had also found from the evidence of one Komalavalli, wife of Vadivel Pillai, examined as P.W.4, that the water from the pond, in T.S.No.399, had been used for cultivation of vegetables, in T.S.No.400, which lies adjacent to the pond known as “Periyari Kuttai”. It was also found that Jaganatha Pandithar, the father of the plaintiffs, had made a request to the District Collector, Thanjavur, requesting for the granting of a patta in his favour, in respect of T.S.No.399. The said petition, dated 19.9.1961, is marked as Ex.A-1. Ex.A-4, dated 31.7.1989, is a petition submitted by the people living in Pulian Street, to Revenue Divisional Officer, stating that the suit property is in the enjoyment of the plaintiffs and that the defendant and his men are attempting to encroach into the said property. The trial Court had further found from the adangal copy of the Town Land Survey Register, marked as Ex.B-4, that T.S.No.399, has been described as a “Kuttai” and that it belongs to the Government.

10. Further, it has also been seen that the request of the defendant in his petition, dated 11.10.1989, for assignment of a portion of the “Kuttai”, in T.S.No.399, to an extent of 0.71 cents, had been rejected by the District Collector, Thanjavur, by his proceedings, dated 17.10.1989, marked as Ex.B-2. Thereafter, the defendant had filed an appeal to the Special Commissioner and Commissioner for Land Administration, who had also rejected the request of the defendant, by his order, dated 8.5.1990, marked as Ex.B-5. In such circumstances, the trial Court had come to the conclusion that the plaintiffs had sufficiently substantiated their claims by way of evidence and that the claims made by the defendant were not sustainable. Therefore, the trial Court had granted the reliefs, as prayed for by the plaintiffs, by its judgment and decree, dated 30.7.1993, made in O.S.No.108 of 1989.

11. Aggrieved by the judgment and decree of the trial Court, dated 30.7.1993, made in O.S.No.108 of 1989, the defendant had filed an appeal, in A.S.No.205 of 1993, on the file of the District Court, Nagapattinam. The first Appellate Court had framed the following points for consideration:

“(1) Whether the plaintiffs and those belonging to their community have the right to use the pond and to catch fish from the pond, as claimed by them and if so, are they entitled to the relief of declaration, as prayed for by them?

(2) W hether the plaintiffs are entitled to the relief of permanent injunction against the defendants?

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(3) Whether the necessary parties have been impleaded in the suit?”

12. In the first appeal filed before the first appellate Court it had been noted that in the Government documents the suit property is shown as “Kuttai Poramboke”. While so, it is for the plaintiffs to prove that they have the right for fishing and for using the pond since they are belonging to the barber’s community. The First Appellate Court had held that even though the suit, in O.S.No.108 of 1989, had been filed, under Order 1, Rule 8 of the Civil Procedure Code, in a representative capacity, only two brothers are shown as plaintiffs. There is nothing to show that the others belonging to the barber’s community have authorised the plaintiffs to file the suit in a representative capacity. It has also been noted that the plaintiffs have not shown that there are others who are belonging to the said community living in the suit property.

13. The first appellate Court had also noted that Ex.A-1, dated 19.9.1961, is only a xerox copy of a petition given by Jaganatha Pandithar, the father of the plaintiffs, requesting for patta to be given in his name. The said request had been rejected stating that the suit property, in respect of which the patta has been requested, is classified as a poramboke land. The first appellate Court had also come to the conclusion that after the coming into force of the Inam Abolition Law there cannot be an inam, as claimed by the plaintiffs. The claim of the plaintiffs that the suit property, in T.S.No.399, has been shown as “Periyari Kuttai” in the description of the boundaries relating to T.S.No.400, which was the subject-matter of the sale deed, dated 14.5.1950, marked as Ex.A-5, cannot be considered as sufficient evidence to come to the conclusion that T.S.No.399 is a pond known as “Ambattan Kuttai”, meant for the use of the barber’s community of the village, as claimed by the plaintiffs.

14. Even otherwise from the revenue records it is seen that the suit property is shown as Government poramboke. The first appellate Court had also found that all the plaintiffs’ witnesses have been stating that the defendant has no right to encroach into the suit property and to build a house therein. However, they have not stated in clear terms that the plaintiffs are the only persons who could use the property as a matter of right. Even though it may be clear from the documents marked by the defendant, in support of his claims that there has been an attempt by the defendant to encroach upon the suit property, it cannot have any evidentiary value in favour of the plaintiffs to support their claims that they have the fishing rights in the suit property and that their rights have been recognised since they belong to the barber’s community. Further, when the plaintiffs are making specific claims, with regard to their rights in the suit property, which is shown as a Government Poramboke in the revenue records, the Government ought to have been added as a party to the suit, as it is a necessary party. Further, the first Appellate Court had also noted that the trial Court had come to the conclusion that the plaintiffs have certain rights in the suit property only based on the reason that the suit property had been known as “Ambattan Kuttai”. It is clear that the suit had been filed by the plaintiffs only in their personal interest and that the suit has not been filed in a representative

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capacity, on behalf of the community of barbers. If the claims made by the plaintiffs were true the Government would have issued `B’ memos against them, since the suit property is a Government poramboke. Therefore, the first appellate Court had come to the conclusion that the plaintiffs have not shown, by sufficient evidence, that they are in enjoyment of the suit property. Further, the first Appellate Court had come to the conclusion that the suit cannot be maintained without adding the necessary parties, since the State Government, which is a necessary party to the suit, had not been impleaded. In such circumstances, the first appellate Court had reversed the judgment and decree of the trial Court, made in O.S.No.108 of 1989, dated 30.7.1993.

15. Aggrieved by the judgment and decree of the first appellate Court, dated 2.3.1995, made in A.S.No.205 of 1993, the plaintiffs in the suit had filed the present second appeal raising the following substantial questions of law:

“1. Whether the lower appellate Court is correct in dismissing the suit on the ground of non-joinder of Government?

2. Whether title of the Government in the suit property would be upheld merely on the basis of the entries in the survey records?

3. Whether the lower appellate Court has ignored the provisions of Section 84 of the Panchayat Act in dismissing the suit?”

16. The learned counsel for the appellants had submitted that the judgment and decree of the first appellate Court is against law, and the weight of evidence and the probabilities of the case. The lower appellate Court, having found that the defendant had no right over the suit property, ought to have confirmed the judgment and decree of the trial Court. When the plaintiffs were only claiming for the recognition of their customary rights, the lower appellate Court ought not to have reversed the findings of the trial Court, without properly appreciating the evidence available on record. The observation of the lower appellate Court, with regard to the Inam Abolition Act, is unwarranted and erroneous. The lower appellate Court had failed to appreciate the documentary evidence, in Ex.A-5, dated 14.5.1950, wherein the suit property had been mentioned as “Periyari Kuttai”. The lower appellate Court had erred in dismissing the suit for the non-joinder of necessary parties, namely, the Government, even though the claim of the plaintiffs were substantially against the defendant. The learned counsel had also submitted that the lower appellate Court had failed to appreciate the evidence of the plaintiffs’ witnesses, who were independent witnesses and it is only the trial Court which could note the demeanour of the witnesses. There is no discussion by the first appellate Court, with regard to the evidence of P.W.1 to P.W.5, examined on behalf of the plaintiffs. The first appellate Court had reversed the judgment and decree of the trial Court without properly considering the evidence and without independently analysing such evidence.

17. The learned counsel for the appellants had relied on the judgment, reported in Kuppuswamy Odayar v. Narthangudi Panchayat, 1971 (1) MLJ 190, wherein, it has been held that the mere fact that a particular piece of land has been described as poramboke, in the resettlement register, will not by itself establish the title of the Government in the land in question.

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18. The learned counsel for the appellants had also relied on the decision, reported in Karuppa Devar v. Kaluva Thevar, 2002 (1) CTC 338, to show that the first appellate Court had come to a wrong conclusion that the Government was a necessary party to the suit and that the suit was not maintainable for non-joinder of the Government.

19. The learned counsel appearing on behalf of the respondent had submitted that the first appellate Court had rightly come to the conclusion that the reliefs sought for by the plaintiffs in the suit, in O.S.No.108 of 1989, cannot be granted. The first appellate Court was correct in coming to the conclusion that the suit was not maintainable for non-joinder of necessary party, namely, the State Government. Further, the plaintiffs had not shown as to how they had filed the suit in a representative capacity. Further, the learned counsel for the respondent had stated that the decisions cited by the learned counsel for the appellants are not applicable to the facts and circumstances of the present case, as the plaintiffs are seeking a declaratory relief of customary rights, in respect of the suit property, which is a poramboke land, without impleadng the necessary party, which is the State Government.

20. In view of the submissions made by the learned counsels appearing for the appellants, as well as the respondent, and on a perusal of the records available, this Court is of the considered view that the first appellate Court had come to the right conclusion in reversing the judgment and decree of the trial Court, dated 30.7.1993, made in O.S.No.108 of 1989. When the plaintiffs had filed the suit for a declaratory relief to recognise their customary rights in the suit property, it is for them to prove, by sufficient evidence, that they have been enjoying such rights for a considerable length of time. Further, the plaintiffs had failed to show that they had filed the suit in a representative capacity, under Order 1, Rule 8 of the Civil Procedure Code, for themselves and on behalf of the other members of their community. When it is clear from the Government records that the suit property is a Government Poramboke the plaintiffs ought to have impleaded the Government, as a party to the suit. Non impleading of a necessary party is fatal to the maintainability of the suit. Further, it is found that Jaganatha Pandithar the father of the plaintiff had requested for a patta being granted to him in respect of the suit property. However, the request had been rejected on the ground that the suit property is a Government Poramboke. While so, it is not open to the plaintiffs to claim customary rights of fishing and of using the pond, which is said to be known as “Ambattan Kuttai”, in the suit property, without impleading the Government as a party. When the plaintiffs have stated that the suit property is for the common use of the members of the barber’s community, as well as the other villagers, there cannot be a declaratory relief granted in favour of the plaintiffs, as prayed for by them in the suit. In such circumstances, this Court does not find sufficient cause or reason for interfering with the judgment and decree of the first appellate Court, dated 2.3.1995, made in A.S.No.205 of 1993. Hence, the second appeal stands dismissed. No costs.

Appeal dismissed.

[2009 (3) T.N.C.J. 738 (Mad)]MADRAS HIGH COURT

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BEFORE:K. CHANDRU, J.

K. KARUNANIDHI (DECEASED) ...PetitionerVersus

THE GOVERNMENT OF TAMIL NADU AND OTHERS ...Respondents[W.P. No. 35110 of 2006 (O.A.No. 4822 of 1998), decided on 30th September,

2009]Service laws—Dismissal—Petitioner a Government employee

partici-pated in political agitation and burned copies of Constitution—Convicted by Court and suffered sentence—Petitioner not informed employer of his conviction—Held, in the circumstances dismissal was not bad—Thus, no interference required.

(Paras 12 and 16)Case law.—2005 (4) CTC 403; 2006 (2) CTC 574; 2006 (5) CTC 141;

1989 (2) SCC 177; 1989 Vol. 4 WLR 568; 2006 (13) SCC 1—referred.Counsel.—Mr. C.A. Diwakar, for the petitioner; Mr. R. Neelakanthan,

GA, for the respondents.JUDGMENT

K. CHANDRU, J.—Heard both sides.2. This writ petition arose out of O.A.No.4822 of 1998 filed by the

original petitioner before the Tamil Nadu Administrative Tribunal. In view of the abolition of the Tribunal, it was transferred to this Court and was renumbered as W.P.No.35110 of 2006.

3. The original petitioner sought for the issuance of a writ of certiorarified mandamus to call for the records of the third respondent culminating in the proceedings in Na.Ka.A3-4164/96 dated 26.12.1997, quash the same and to set aside the order of dismissal and to direct the reinstatement of the applicant in the post of Assistant in the office of the respondents with all backwages with effect from 30.1.1992.

4. The original petitioner, who was the husband, was dismissed from service by the fourth respondent, by an order, dated 29.2.1996. The original petitioner filed an appeal, dated 21.3.1996 before the third respondent and that was dismissed by an order, dated 26.12.1997. It is against these two orders, he filed the original application. The ground for dismissal against the original petitioner was that he was initially in unauthorised absence from work from 4.3.1989. When an enquiry was pending against the said charge memo, it was brought to the notice of the authorities that the original petitioner had participated in a political agitation conducted by the DMK political party and was kept in Cuddalore Central jail from 21.11.1986 to 22.1.1987. In that criminal case, the original petitioner was also convicted by the Sub-Divisional Judicial Magistrate, Villupuram in CC case No.1529 of 86, dated 22.8.87 and the original petitioner never informed about the said conviction.

5. It was also stated that this conduct was violative of Rules 14 and 23 of Tamil Nadu Servant Conduct Rules. Though the original petitioner claimed that he had filed an appeal, it later transpired that the appeal filed by R.Palani and six others was dismissed by the District Sessions Judge in CA

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No.67/87. The applicant claimed that he was not punished by the Magistrate and he was unnecessarily implicated in the said case. But the records obtained by the respondents show that the original petitioner was part of burning of Constitution copy agitation against the imposition of Hindi as official language and the same was proved before the trial Court. He was awarded the punish-ment of imprisonment for two weeks under Section 143, IPC and another two weeks under Section 2 of the Prevention of Insults to National Honour Act, 1971. Therefore, there was no impediment for the respondents to impose a punishment under Rule 17(c)(1)(1) of the Tamil Nadu Civil Service (Disciplinary and Appeal) Rules read with Article 311(2)(a) of the Constitution. The original petitioner initially claimed that he had nothing to do with the political party and he was wrongly implicated in the criminal case because of the name that he has and hence he should be exonerated.

6. In response to these allegations, in the reply affidavit, dated 28.7.2000, in para 23, it was averred as follows:

“23. ...it is submitted that it is ascertained that the Applicant in his petition dated 19.7.89 to the Honourable Chief Minister’s Special Cell, had stated among other things that he was a member of a political party since 1977 and he was a Secretary of that party in that locality that he had taken part in the picketing in support of Ceylon Tamils and Burning of ‘Constitu-tion Amendment Bill’ in 1987 and 1988 organized by that political party and that the Applicant was imprisoned.”

7. The counsel for the original petitioner raised two contentions. The first contention was that the conviction was in the year 1987 and for that charge memo was given in 1991 i.e., after a period of four years and therefore, in view of the long delay in framing the charges, the charges must be quashed. He relied upon the following three decision:

(a) P.V. Mahadevan v. M.D., Tamil Nadu Housing Board, 2005 (4) CTC 403,

(b) R. Thirupathy and others v. The District Collector, Madurai District, Collectorate, Madurai-2 and others, 2006 (2) CTC 574, and

(c) D. Amaladoss v. The State of Tamil Nadu rep. By Secretary to Government, Home Department (Courts I.A.), Fort St. George, Chennai and another, 2006 (5) CTC 141.

8. It must be noted that the original petitioner for his absence during the days while he was in Central Prison, Cuddalore applied for leave on unearned leave of private affairs for 55 days and EOL for 83 days from the 4th respondent without disclosing the real reason for his absence. These facts were brought to notice of the respondents only when the respondents have received copy of the judgment from the Criminal Court convicting him for the two offences. Further, when there is a conviction of a Government servant, the respondents are at liberty to take action even without enquiry in terms of Article 311(2)(a) of the Constitution.

9. The second contention raised by the original petitioner was that even if he is convicted, the dismissal imposed on him was disproportionate and

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therefore, this Court having power under Article 226 to interfere with the said punishment. In this context, reliance was placed upon the judgment of the Supreme Court in Union of India v. Parma Nanda reported in (1989) 2 SCC 177. A reliance was placed on the following passage found in paragraph 29 of the said judgment, which is as follows:

29. We may however, carve out one exception to this proposition. There may be cases where the penalty is imposed under Clause (a) of the second proviso to Article 311(2) of the Constitution. Where the person, without enquiry is dismissed, removed or reduced in rank solely on the basis of conviction by a criminal Court, the Tribunal may examine the adequacy of the penalty imposed in the light of the conviction and sentence inflicted on the person. If the penalty impugned is apparently unreason-able or uncalled for, having regard to the nature of the criminal charge, the Tribunal may step in to render substantial justice. The Tribunal may remit the matter to the competent authority for reconsideration or by itself substitute one of the penalties provided under Clause (a). This power has been conceded to the Court in Union of India v. Tulsiram Patel, where Madon, J., observed: (SCC pp. 501-02, para 127)

“Where a disciplinary authority comes to know that a Government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be.... The disciplinary authority must, however, bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the Government servant concerned. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. A Government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was too severe or excessive and not warranted by the facts and circumstances of the case. If it is his case that he is not the Government servant who has been in fact convicted, he can also agitate this question in appeal, revision or review. If he fails in the departmental remedies and still wants to pursue the matter, he can invoke the Court’s power of judicial review subject to the Court permitting it. If the Court finds that he was not in fact the person convicted, it will strike down the impugned order and order him to be reinstated in service. Where the Court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the require-ments of that particular Government service the Court will also strike down the impugned order. Thus, in Shankar Dass v. Union of India, this Court set aside the impugned order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whimsical and ordered his reinstatement in service with full back wages. It is, however, not necessary that the Court should always order reinstatement. The Court

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can instead substitute a penalty which in its opinion would be just and proper in the circumstances of the case.”

10. Before going into the so-called disproportionality of the punishment, the relevant legal positions must be considered. The Government servants are governed by the Tamil Nadu Government Servant Conduct Rules. In this context, it is necessary to refer to Rules 20(1) and 23 of the T.N. Govt. Conduct Discipline & Appeal Rules, which are as follows:

“Rule 20. Integrity and devotion to duty.—(1) Every member of the service shall at all times maintain absolute integrity and devotion to duty and shall do nothing which is unbecoming of a member of the service. ....Rule 23. Anti-secular or social disharmony activity and Demon-stration.—No Government servant shall engage himself or participate in any activity which is anti-secular or which tends to create disharmony in society or in any demonstration which is prejudicial to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, Public Order, decency or morality or which involves contempt of Court, defamation or incitement to an offence.”

11. Apart from the conduct rules, a Government servant just like any other citizen of the country is bound by Article 51-A imposing fundamental duties upon every citizen. It is necessary to refer to Article 51-A (a) and (j) of the Constitution of India, which will have a bearing in the present case and the same reads as follows:

“51-A. Fundamental duties.—It shall be the duty of every citizen of India—

(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;.....

(j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.”

12. Therefore, the original petitioner being a Government servant ought not to have participated in the agitation conducted by a political party and get himself arrested and convicted for burning a copy of the Constitution and also not informing the employer about his conviction. It is needless to state that violation of the provisions of the Prevention of Insults to National Honour Act, 1971 is a serious offence and burning a copy of the Constitution will be hit by Section 2 of the said Act. In this context, it is necessary to refer to a Division Bench judgment of this Court presided by M.N. Chandurker, C.J. vide judgment in K. Anbazhagan v. The Secretary, The Tamil Nadu Legislative Assembly and others reported in 1987 Vol.4 WLR 568. The said judgment came to be rendered in the context of the challenge made to the decision of the Tamil Nadu Legislative Assembly in disqualifying 10 members of the House for committing the very same offence i.e., in respect of burning a copy of Part XVII of the Constitution pursuant to the decision taken by the Executive Committee Resolution dated 9.11.1986 passed by the DMK Party. It

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is necessary to refer to the following passage found in para 27 of the said judgment, which is as follows:

“27. Now the very fact that the Parliament was required to enact a legislation for the prevention of insults to the National Flag, the National Anthem and the Constitution which are essentially symbols of the sovereignty of the country itself shows that there were people in this country who notwithstanding the adoption of a written Constitution were bent on creating discord by showing utter disrespect to the symbols of sove-reignty of the country. The Parliament by enacting Explanation 1, expressly saved the democratic right to dissent in the exercise of which a citizen may express disapprobation or criticism of the Constitution or of the Indian National Flag or take recourse to democratic remedies to obtain an amend-ment of the Constitution or an alteration of the Indian National flag and such lawful means were by first Explanation expressly stated to be not constituting an offence under Section 2. Reading the main part of Section 2 and the explanation and even otherwise, it is obvious that burning or defiling the Constitution or the National Flag or doing any act specified in Section 2 in respect of the Indian National Flag or the Constitution of India, can by no stretch of imagination fall within Explanation 1, and if an act of a person falls within the four corners of Section 2, it will obviously amount to an offence. ...”

13. As to how far such an agitation is protected by the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution which was also considered in the very same judgment. In the very same judgment paragraph 69 which is as follows:

“69. ...Article 19(1)(a) merely guarantees to a citizen the freedom of speech and expression. However wide a meaning may be given to the expression ‘freedom of speech and expression’ it cannot certainly take in a conduct which is necessarily made penal by a statute. The conduct in the instant case consisted of burning the Constitution which is expressly punishable. It is nobody’s case that the provision of the Prevention of Insults to National Honour Act which makes defiling the Constitution or burning the Constitution an offence, is invalid. It is this conduct which became the subject-matter of the proceedings before the Assembly and so far as the facts of the present case are concerned, there is no question of any violation of Article 19(1)(a) of the Constitution of India arising.”

14. The inter-link between the prevention of insults to National Honour Act, 1971 and Article 51-A was also considered in the very same judgment and the following passage found in paragraph 86 will make clear the said legal position and it is necessary to reproduce the said paragraph which is as follows:

“86. ...The act which is not only made penal by the provisions of the Prevention of Insults to National Honour Act, 1971, but is expressly in derogation of one of the fundamental duties of a

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citizen incorporated in Article 51-A of the Constitution. Article 51-A inter alia provides that it shall be the duty of every citizen to abide by the Constitution and respect its ideals and institutions the National Flag and the National Anthem. It is another matter that the duty to abide by and respect the Constitution is made a fundamental duty, but even without such prescription made expressly by amendment of the Constitution, it is implicit in the adoption of a written Constitu-tion, which is given by the people of India to themselves, that as long as the Constitution, which represents the will of the people and is the Supreme law of the land is in force, it is an imperative obligation of every citizen of the Indian Republic, including those who want to voice their dissent in respect of any particular provision, to abide by the provisions of the Constitution and notwithstanding their dissent in respect of some provisions, they are bound to respect it apart from the express provision made in Article 51-A. ...”

15. Even with reference to prolonged absence of a Government servant, the Courts were forewarned from showing any indulgence when such cases are brought to Court and need to apply the fundamental duty enshrined in Article 51-A(j) of the Constitution by the Supreme Court vide its decision in Government of India v. George Philip reported in (2006) 13 SCC 1. It is necessary to refer to the following passage found in paragraph 18 of the said judgment, which is as follows:

“18. ...Article 51-A(j) of the Constitution lays down that it shall be the duty of every citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. This cannot be achieved unless the employees maintain discipline and devotion to duty. Courts should not pass such orders which instead of achieving the underlying spirit and objects of Part IV-A of the Constitution have the tendency to negate or destroy the same.”

16. In the light of the above clear legal pronouncements, the original petitioner cannot be shown any indulgence even in the matter of punishment. The original petitioner had not only contravened the conduct rules making himself liable for disciplinary action, but also having got imprisonment by voluntarily participating in a political agitation, he has violated the Laws of the land and disobeyed the fundamental duties enshrined in the Constitution.

17. In the light of the above, the writ petition will stand dismissed. No costs.

Petition dismissed.

[2009 (3) T.N.C.J. 745 (Mad) (MB)]MADRAS HIGH COURT

(MADURAI BENCH)BEFORE:

A. SELVAM, J.

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THE DIVISIONAL MANAGER, THE NEW INDIA

ASSURANCE CO. LTD., DINDIGUL ...AppellantVersus

V. CHANDRAN AND ANOTHER ...Respondents[C.M.A. (MD) No. 680 of 2008, decided on 21st August, 2009]

Motor Vehicles Act, 1988—Section 166—Compensation—Liability to pay—Driver at time of accident not having valid licence—Violation of condition of policy—Insurance Company cannot be held responsible for payment of compensation—Owner is responsible to pay compensation.

(Paras 29, 31, 32, 34, 38, 39 and 41)Case law.—2008 ACJ 1307—relied on; 2009 (1) TNMAC 487 (SC);

2004 (3) SCC 297; 2009 (1) TN MAC (FB); 2008 ACJ 1307; 2008 ACJ 2788—referred.

Counsel.—Mr. K. Elangovan, for the appellant; Mr. A. Saravanan, for the respondent 1; Mr. V. Sasikumar, for the respondent 2.

JUDGMENT

A. SELVAM, J.—Challenge in this civil miscellaneous appeal is to the award dated 26.10.2004 passed in M.C.O.P. No. 354 of 1997 by the Motor Accident Claims Tribunal/Additional District and Sessions Court (Fast Track Court), Dindigul.

2. The first respondent herein as petitioner has filed M.C.O.P.No.354 of 1997 under Sections 140 and 166 of Motor Accident Claims Tribunal Act and Rule 3 of 1961 on the file of the Motor Claims Tribunal praying to pass an award of Rs.1,00,000/-, wherein the present appellant has been shown as second respondent.

3. It is stated in the petition that on 8.9.1996 at about 11.45 a.m., the petitioner has traveled on a motor cycle as a pillion rider on Nilakottai-Anaipatti road from North to South. At that time the driver of the first respondent has driven the van bearing Registration No.TN-57-6636 in rash and negligent manner and dashed against the motor cycle on which the petitioner has travelled and due to accident, the petitioner has sustained multiple injuries including fractures. The van which belongs to the first respondent has been insured with the second respondent. After accident, the petitioner has been admitted in a private hospital and taken treatment upto 22.9.1996. Since the entire accident has happened due to rash and negligent driving of the driver of the first respondent and since the vehicle which involved in the accident has been insured with the second respondent, both respondents are liable to pay compensation to the petitioner to the extent of Rs.1,00,000.

4. In the counter filed on the side of the first respondent it is stated that the driver of the first respondent has not caused the accident and the vehicle of the first respondent has been insured with the second respondent at the time of accident and there is no merit in the petition and the same deserves dismissal.

5. In the counter filed on the side of the second respondent it is stated that the accident has not happened due to rash and negligent driving of the

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driver of the first respondent and further the driver of the first respondent has not possessed of licence at the time of accident and therefore, the second respondent is not legally liable to pay compensation to the petitioner and therefore, the present petition deserves to be dismissed.

6. On the basis of the rival contentions raised on either side, the Motor Accident Claims Tribunal has awarded a compensation of Rs.60,000/- with 9% interest and further directed the second respondent to recover the interest accrued from the date of filing of the petition till 8.12.2003 from the first respondent. Against the award passed by the Motor Accident Claims Tribunal, the present civil miscellaneous appeal has been filed at the instance of the second respondent as appellant.

7. The sum and substance of the contention urged on the side of the first respondent/petitioner is that on 8.9.1996 the petitioner has travelled as a pillion rider on a motor cycle which has been driven by one Chandran on Nilakottai-Anaipatti road from North to South and at that time the driver of the first respondent has driven the van bearing Registration No.TN-57-6636 in rash and negligent manner and dashed against the motor cycle on which the petitioner has travelled and due to accident, the petitioner has sustained multiple injuries including fractures and further the van which caused accident has been insured with the second respondent and therefore, the respondents are jointly or severally liable to pay compensation to the petitioner.

8. On the side of the first respondent (owner of the vehicle) it has been simply stated that at the time of accident the van in question has been insured with the second respondent and further the accident has not happened due to rash and negligent driving of the driver of the first respondent.

9. On the side of the second respondent it has been specifically stated that on the date of alleged accident, the driver of the first respondent has not possessed of any licence and therefore, the second respondent is not liable to pay compensation to the petitioner.

10. As stated earlier, the Motor Accident Claims Tribunal has rejected all the contentions raised on the side of the second respondent and ultimately directed the second respondent to pay a compensation of Rs.60,000/- to the petitioner.

11. The learned counsel appearing for the appellant/second respondent has ingeniously raised the following points so as to set aside the award passed by the Motor Accident Claims Tribunal.

(a) the driver of the first respondent has not possessed of any licence at the time of accident;

(b) since the driver of the first respondent has not possessed of any licence at the time of accident, the first respondent has violated policy condition and under the said circumstances, the second respondent cannot be directed to pay compensa-tion to the petitioner.

12. The learned counsel appearing for the respondents 1 and 2 have raised the following points:

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(a) the driver of the first respondent has possessed of valid licence at the time of accident;

(b) the second respondent has not established that the driver of the first respondent has not possessed of licence at the time of accident;

(c) if at all the Court comes to a conclusion that the driver of the first respondent has not possessed of any licence, as per the dictum given by the Honourable Supreme Court with regard to pay and recover, the second respondent can be directed to pay entire compensation to the petitioner (first respondent herein) with liberty to recover the same from the second respondent herein (owner of the vehicle).

13. On the basis of the rival points raised on either side, the Court has to perpend firstly as to whether the driver of the first respondent has possessed of licence on the date of accident.

14. It is an admitted fact that the accident in question has happened on 8.9.1996 at about 11.45 a.m. The specific contention of the second respondent/owner of the vehicle is that on the date of accident his driver has possessed of valid licence.

15. In 2009 (1) TN MAC 487 (SC) (Shuwan Singh v. Oriental Insurance Company Ltd. and another), it has been held that “burden of proof ordinarily would be on Insurance Company to establish that there has been a breach of conditions of contract of Insurance”.

16. From the dictum given by the Honourable Apex Court, the Court can easily discern that the entire burden lies upon the appellant/second respondent to prove that on the date of accident the driver of the first respondent/owner of the vehicle has not possessed of any licence.

17. On the side of the second respondent, Exs.R1 to 4 have been filed. Ex.R3 is a copy of legal notice sent to the first respondent/owner of the vehicle and his driver viz., Pandi Murugan. Even after receipt of the same, the first respondent/owner of the vehicle and his driver have not chosen to give any reply to the effect that on the date of accident the driver of the first respondent has possessed of valid licence.

18. Apart from Ex.R-3, on the side of the second respondent R.W. 2 has been examined. He would say in his evidence that he has been serving in RTO office, Dindigul and no document is available in the office with regard to licence number of the driver viz., Pandi Murugan. If really the driver of the first respondent/owner of the vehicle has possessed of any licence at the time of accident, definitely the first respondent and his driver might have given suitable reply to Ex.R-3 and if really the said Pandi Murugan (driver of the first respondent) has obtained licence, definitely some documents would be available in the RTO office, Dindigul. Therefore, it is quite clear that the appellant/second respondent has discharged its burden to the effect that the driver of the first respondent/owner of the vehicle has not possessed of any licence on the date of accident. Further neither the first respondent nor his driver has chosen to give any evidence to that effect. Therefore. viewing from any angle, as per the dictum rendered by the Honourable Apex Court, the

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appellant/second respondent has discharged its burden for proving that the first respondent/owner of the vehicle has violated contract of Insurance.

19. It is an acknowledged principle of law that if any owner of the vehicle has violated contract of Insurance, the concerned Insurance Company cannot be directed to give compensation in respect of any accident.

20. The learned counsel appearing for the respondents herein (petitioner as well as owner of the vehicle) have uniformly contended that if there is any violation of contract of insurance, the concerned Insurance Company can be directed to pay compensation to the concerned petitioner with liberty to recover the same from the concerned owner of the vehicle. In support of their contention, they have drawn the attention of the Court to the decision reported in (2004) 3 SCC 297 (National Insurance Co. Ltd. v. Swaran Singh and others), wherein the Larger Bench of the Honourable Apex Court has held as follows:

“Although as noticed herein before, there are certain special leave petitions wherein the persons having the vehicles at the time when the accidents took place did not hold any licence at all, in the facts and circumstance of the case, we do not intend to set aside the said awards. Such awards may also be satisfied by the petitioners herein subject to their right to recover the same from “the owners of the vehicles in the manner laid down therein. But this order may not be considered as a precedent”.

21. From the close reading of the decision rendered by the larger Bench of the Honourable Apex Court, the Court can easily ken that in view of the facts and circumstances of the case mentioned in the decision, the larger Bench of the Honourable Apex Court has directed the concerned Insurance Company to pay compensation and recover the same from the concerned owners of the vehicles which involved in the accidents and further the larger Bench of the Honourable Apex Court has categorically pointed out that the aforesaid finding cannot be considered as a precedent.

22. Article 142 of the Constitution of India reads as follows: “142. Enforcement of decrees and orders of Supreme Court and orders

as to discovery, etc.—(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose or securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.”

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23. From the close reading of Article 142 (1) of the Constitution of India, it is easily discernible that if there is no law with regard to a particular aspect, the Honourable Supreme Court is having unfettered right to frame necessary corollary, until necessary law to be passed by the Parliament.

24. Article 141 of the Constitution of India reads as under:“141. Law declared by Supreme Court to be binding on all Courts.—

The law declared by the Supreme Court shall be binding on all Courts within the territory of India.”

However, the Honourable Supreme Court has laid down the following categories of decisions of the Supreme Court have no binding force:

(a) Obiter dicta, i.e., statements which are not part of the ratio decidendi.

(b) A decision per incurium, i.e., a decision given in ignorance of the terms of a statute or rule having the force of a statute.

(c) A decision passed sub-silentio, without any argument or debate on the relevant question.

(d) An order made with the consent of the parties, and with the reservation that it should not be treated as a precedent.

25. As per category (d) “If an order has been passed with the consent of parties, and with reservation that it should not be treated as a precedent”. The same is not binding upon other Courts.

26. In the decision reported in (2004) 3 SCC 297 (National Insurance Co. Ltd. v. Swaran Singh and others), as pointed out earlier, the larger Bench of the Honourable Supreme Court has categorically held that the direction given to the concerned Insurance Company cannot be considered as a precedent. Therefore, it is quite clear that the finding given by the larger Bench of the Honourable Supreme Court to the extent that the concerned Insurance Company should pay compensation first to the concerned petitioners and recover the same from the owners of the vehicles involved in the accidents is not binding upon other Courts. To put it in nutshell, the said finding given by the larger Bench of the Honourable Apex Court, is only with regard to the case mentioned therein and the same cannot be applied in any other case.

27. The learned counsel appearing for the respondents (petitioner as well as owner of the vehicle) have also relied upon the Full Bench decision of this Court reported in 2009 (1) TN MAC 1 (FB) (Branch Manager, United India Insurance Co. Ltd., Branch Office v. Nagammal and others), wherein the Full Bench of this Court has analysed all the relevant decisions including the decision reported in (2004) 3 SCC 297 (National Insurance Co. Ltd. v. Swaran Singh and others) and ultimately held that—

(a) The Insurance Policy is required to cover the liability envisaged under Section 147 of the Motor Vehicles Act, 1988, but wider risk can always be undertaken.

(b) Section 149 of the said Act envisages the defences which are open to the Insurance Company. Where the Insurance Company is not successful in its defence, obviously it is required to satisfy the decree and the award. Where it is successful in its defence, it may yet be required to pay the amount to the claimant and

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thereafter recover the same from the owner under such circumstance envisaged and enumerated in Section 149(4) and Section 149(5).

(c) Under Section 147 of the said Act, the Insurance Company is not statutorily required to cover the liability in respect of a passenger in a goods vehicle unless such passenger is the owner or agent of the owner of the goods accompanying such goods in the concerned goods vehicle.

(d) Since there is no statutory requirement to cover the liability in respect of a passenger in a goods vehicle, the principle of “pay and recover”, as statutorily recognized in Section 149(4) and Section 149 (5), is not applicable ipso facto to such cases and, therefore, ordinarily the Court is not expected to issue such a direction to the Insurance Company to pay to the claimant and thereafter recover from the owner.

28. The ultimate corollary of the Full Bench of this Court is that it would be in the discretion of the appellate Court depending upon the facts and circumstances of the case, whether the doctrine of “pay and recover” should be applied or as to whether the claimant would be left to recover the amount from the person liable i.e., the driver or the owner, as the case may be.

29. From the close reading of the decisions referred to above, it is made clear that if there is any violation of the conditions of contract of insurance, the concerned Insurance Company cannot be fastened with liability and further it is made clear that if violation of policy condition arises, the question of pay and recover does not arise as per law and it is purely discretion of the Court.

30. At this juncture it would be more useful to look into the decision reported in 2008 ACJ 1307 (Sardari and others v. Sushil Kumar and others), wherein the Honourable Apex Court has held that although in terms of a contract of Insurance, which is in the realm of private law domain having regard to the object for which Sections 147 and 149 of the Act had been enacted, the social justice doctrine as envisaged in the preamble of the Constitution of India has been given due importance. The Act, however, itself provides for the cases where the Insurance Company can avoid its liability. Avoidance of such liability would largely depend upon violation of the conditions of contract of insurance. Where the breach of conditions of contract is ex facie apparent from the records, the Court will not fasten the liability on the Insurance Company. In certain situations, however, the Court while fastening the liability on the owner of the vehicle may direct the Insurance Company to pay to the claimants the awarded amount with liberty to it to recover the same from the owner. The owner of the vehicle has a statutory obligation to see that the driver of the vehicle whom he authorised to drive the same holds a valid licence. The owner would be liable for payment of compensation, in case, where the driver was not having a licence at all.

31. In the instant case it has already been discussed in detail that the appellant/second respondent has positively proved that on the date of accident, the driver of the first respondent has not possessed of licence at all and further both the first respondent (owner of the vehicle) and his driver has

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adopted nonchalant attitude in proving the fact that at the time of accident the driver of the first respondent has had valid licence. In the decision reported in 2008 ACJ 1307 (Sardari and others v. Sushil Kumar and others), the concerned Insurance Company has proved that the driver who involved in the accident has not possessed of licence at all. Under the said circumstances, it has been held that the owner of the vehicle is alone liable for compensation. Further a statutory obligation lies upon the owner of the vehicle to see that the driver of the vehicle whom he authorised to drive the same holds a valid licence. In the instant case also as animadverted to earlier both the first respondent (owner of the vehicle) and his driver have not at all cared to prove about the factum of licence at the time of accident. Under the said circum-stances, the compensation payable to the first respondent/petitioner should be paid only by the second respondent herein/owner of the vehicle.

32. It is a humdrum that if a person commits wrong or mistake, he should bear its sequence. If a person who has no connection whatsoever with the wrong or mistake, he cannot be forced to bear its outcome. In the instant case, as noted down in many places, the appellant/second respondent has positively established that the driver of the first respondent (owner of the vehicle) has not possessed of licence at all at the time of accident. Therefore, it is pellucid that the first respondent (owner of the vehicle) has done violation of contract of insurance. Since he has done violation of contract of insurance and since the principle of pay and recover is nothing but purely discretion of the Court and since the larger Bench of the Honourable Apex Court categori-cally pointed out that the said principle applicable only to the particular case mentioned in the decision reported in (2004) 3 SCC 297, (National Insurance Co. Ltd. v. Swaran Singh and others) and the same cannot be treated as a precedent, the Court can very well come to a conclusion that the principle of pay and recover cannot be applied in the present case.

33. The learned counsel appearing for the respondents (petitioner and owner of the vehicle) have also made their residual attempt to the effect that this Court can follow the decision reported in (2004) 3 SCC 297 (National Insurance Co. Ltd. v. Swaran Singh and others) in preference to the decision reported in 2008 ACJ 1307 (Sardari and others v. Sushil Kumar and others) by way of applying Latin Maxim “stare decisis”. It means “to stand by things decided”. The doctrine of precedent, under which it is necessary for a Court to follow earlier judicial decisions when the same points arise again in litigation. In other words, “The rule of adherence to judicial precedent finds its expression in the doctrine of stare decisis. The doctrine is simply that, when a point or principle of law has been once officially decided or settled by the ruling of a competent Court in a case in which it is directly and necessarily involved, it will no longer be considered as open to examination or to a new ruling by the same Tribunal, or by those which are bound to follow its adjudications, unless it be for urgent reasons and in exceptional cases”. The maxim “stare decisis et non quieta movere” means “to stand by things decided, and not to disturb settled points”.

34. It has already been stated in many places that the finding given by the larger Bench of the Honourable Aoex Court in Swaran Singh’s case with

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regard to pay and recover is applicable only to that case and the larger Bench of the Honourable Apex Court has categorically stated to the effect that “this order may not be considered as a precedent”. Therefore, with regard to principle of pay and recover, the larger Bench of the Honourable Apex Court has not settled anything finally so as to bind other Courts. As per the categories culled out by the Honourable Apex Court under Article 141 of the Constitution of India “if an order has been passed with the consent of parties, and with reservation that it should not be treated as a precedent, the same is not binding upon other Courts”. Since the larger Bench of the Honourable Apex Court has not finally settled the principle of pay and recover to the effect that the said principle applies invariably in all cases, the said finding cannot be treated as things finally decided or settled.

35. It is a settled principle of law that for applying “stare decisis, stare decisis et non quieta movere”, the point or principles of law in question must be settled by a competent Court. Therefore, it is quite clear that the principle of stare decisis cannot be applied on the basis of the finding given in the decision reported in (2004) 3 SCC 297 (National Insurance Co. Ltd. v. Swaran Singh and others) in preference to the decision reported in 2008 ACJ 1307 (Sardari and others v. Sushil Kumar and others).

36. The learned counsel appearing for the respondents (petitioner and owner of the vehicle) has also drawn the attention of the Court to the decision reported in 2008 ACJ 2788 (Marimuthammal and another v. R.P.P. Construction (P) Ltd. and others), wherein this Court has held that when High Court is faced with conflicting views of the Apex Court, the High Court has to follow opinion expressed by larger Bench in preference to that expressed by smaller Bench.

37. Even at the risk of jarring repetition, the Court would like to point out that the finding given in (2004) 3 SCC 297 (National Insurance Co. Ltd. v. Swaran Singh and others) by the larger Bench of the Honourable Apex Court with regard to principle of pay and recover is only applicable to that case, wherein it has not been specifically stated that the finding is applicable to other cases also and further no divergent views of the Honourable Apex Court are in existence with regard to the principle of pay and recover. Under the said circumstances, the view expressed by the learned Single Judge of this Court cannot be applied in the present case.

38. It has already been pointed out in so many places that the first respondent (owner of the vehicle) and his driver have adopted nonchalant attitude with regard to factum of possession of licence on the date of accident and further the appellant/second respondent has positively established that on the date of accident, the driver of the first respondent (owner of the vehicle) has not possessed of licence at all. As per the decision reported in 2008 ACJ 1307 (Sardari and others v. Sushil Kumar and others) if there is apparent violation of contract of insurance on the part of the owner of the vehicle, the compensation should be paid only by him and not by the concerned Insurance Company.

39. In the instant case, as pointed out earlier, the first respondent/owner of the vehicle/second respondent herein has done flagrant violation of conditions of contract of insurance and since he has done flagrant violation of contract of insurance, as per law, he is liable to pay compensation

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to the first respondent/petitioner. The appellant second respondent is nothing but insurer of the first respondent/owner of the vehicle. Since the first respondent (owner of the vehicle) has done clear violation of contract of insurance, the appellant/second respondent as insurer cannot be directed to pay com-pensation to the first respondent/petitioner with liberty to recover the same in future. The appellant/ second respondent is also a party to the present proceeding and its interest must also be taken into consideration. In nutshell, the Court must look into both sides of a coin. Unless there is a legal tie or the appellant/ second respondent is legally bound to pay compensation to the first respondent/petitioner, the Court cannot direct the appellant/second respondent to pay the same to the first respondent/petitioner with liberty to recover the same from the second respondent herein (owner of the vehicle). Therefore, viewing from any angle the principle of pay and recover cannot be applied in the present case.

40. The learned counsel appearing for the appellant/second respondent has not touched the quantum of compensation. The Motor Accident Claims Tribunal has fixed the quantum of compensation to the tune of Rs.60,000/-. Considering the nature of the injuries sustained by the first respondent/petitioner, the quantum of compensation fixed by the Motor Accident Claims Tribunal is not excessive and as decided earlier, the same should be paid only by the second respondent herein/owner of the vehicle and the liability fixed upon the appellant/second respondent by the Motor Accident Claims Tribunal can be set aside and in view of the foregoing narration of both factual and legal aspects, it is needless to say that the points raised by the learned counsel appearing for the appellant/second respondent can be accepted and the points raised on the side of the respondents (petitioner and owner of the vehicle) are not having substance at all.

41. In fine, this civil miscellaneous appeal is allowed in part without cost. The award passed in M.C.O.P.No.354 of 1997 by the Motor Accident Claims Tribunal/Additional District and Sessions Court (Fast Track Court) Dindigul is modified as follows:

The quantum of compensation fixed by the Motor Accident Claims Tribunal is confirmed and the same should be paid only by the second respondent herein (owner of the vehicle). So far as the appellant/second respondent is concerned, M.C.O.P . No.354 of 1997 is dismissed without cost. If the appellant/second respondent has deposited any amount and if the same has been withdrawn by the first respondent/petitioner, the first respondent/petitioner should deposit the same within one month and the appellant/second respondent is at liberty to withdraw the entire amount deposited in M.C.O.P.No.354 of 1997. Connected miscellaneous petition is closed.

Appeal partly allowed.

[2009 (3) T.N.C.J. 755 (Mad)]

MADRAS HIGH COURT

BEFORE:

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P. JYOTHIMANI, J.

SHIEIK KABOOR SAHIB ...Petitioner

Versus

THE STATE OF TAMIL NADU AND ANOTHER ...Respondents

[Writ Petition No. 11896 of 2009 and M.P. Nos. 1 and 3 of 2009, decided on 24th August, 2009]

Constitution of India, 1950—Articles 30(1) and 226—Minority institution—Declaration of—Petitioner after death of his father made various representations to authorities to recognize it as minority institution—Declined by authorities below—Civil Court after considering established facts and record held the petitioner institution as minority institution under Article 30(1)—Held, guidelines issued by Government fully satisfied—Respondent to consider case of appellant and pass appropriate orders regarding grant of minority status to the petitioner’s institution.

(Paras 3, 7, 10, 11 and 12)

Case law.—L.A.No. 20 in W.P. (C) No. 317 of 1993, decided on 17.10.1994; W.A.No. 2387 of 2001, dated 19.2.1988; A.S. No. 275 of 1987; 1999 (1) CTC 121; AIR 2003 SC 355 : 2002 (8) SCC 481—referred.

Counsel.—Mr. K. Elangoo, for the petitioner; MRs. K. Dhakshayani Reddy, G.A., for the respondents.

Important point

Guidelines for declaration of minority institution for conferring minority institution.—”(i) The object of the educational institutions should be for noting the interests of the minority concerned and it should subserve the interests of the minority community concerned.

(ii) Such educational institutions should have been established by the minority and should be continuously administered only by the members of that minority.

(iii) An educational institution which was originally not established by a minority community cannot acquire such status or character subsequently under any circumstances.

(iv) All the trustees or members of the governing body of the minority educational institutions shall belong only to the concerned minority. In the case of self-financing educational institutions imparting professional courses of education established and administered by any minority they shall admit students of that minority alone, not exceeding 50% of the sanctioned strength, if there is any vacancy not filled as above such vacancy in that 50% shall be filled up only on the basis of merit and from common merit list prepared by the competent authority.

(v) To decide whether an applicant is a minority or not based on religion or language, the total population of that minority in the State of Tamil Nadu shall be taken into consideration and not the population of that minority in any particular region where the educational institution is situated.

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(vi) In so far as Tamil Nadu State is concerned, any person whose mother tongue is any language other than Tamil shall be considered as linguistic minority, in the State and in respect of religious minority, any person whose religion is other than Hinduism shall be considered as a religious minority in the State.”

JUDGMENT

P. JYOTHIMANI, J.—Heard Mr. K. Elangoo, learned counsel for the petitioner and Mrs. K. Dhakshayani Reddy, learned Government advocate for the respondents, who made her submission after receiving instructions from the respondents and perused the entire files relating the subject-matter involved in this case.

2. The challenge in this writ petition is of the order passed by the Government dated 8.10.2007 under which the first respondent Government by referring to an application filed by the petitioner institution dated 11.4.2002 and based on the subsequent enquiry stated to have been conducted has decided that as per the Government order in existence, it is the Government who has to confer the status of minority to have the benefit under Article 30 (1) of the Constitution of India.

3. The petitioner school was started in the year 1940 by the father of the petitioner, late Abdul Kareem. It was established as a minority institution and according to the petitioner more than 90% of the population belonging to the Muslim community and it was started to promote educational requirement. The said institution was recognised by the department and aids are also been granted. After the death of the petitioner’s father, the petitioner being the correspondent is continued to maintain and administer the institution as minority institution. It is stated that he has made various representations to the authorities to recognise it as a minority institution, which was not considered.

4. In those circumstances, the petitioner filed a suit in O.S.No.1324 of 1994 on the file of the Additional District Munsif II, Kallakurichi, Villupuram District for declaration of the petitioner school as a minority institution entitled for protection under Article 30 of the Constitution of India. It is based on the decree passed by the competent Civil Court, the petitioner has made many representations including the one on 11.4.2002 to the respondents to declare the institution as minority institution. The petitioner has also filed W.P.No. 23478 of 2002 for a direction to the respondents to dispose of the representation and this Court by order dated 2.7.2002 has directed the second and third respondents to dispose of the representation dated 11.4.2002 in accordance with law. It was thereafter, the petitioner was called to appear by the second respondent on 26.9.2007 and the petitioner has produced all the documents and given his version in writing and it was thereafter, the impugned order came to be passed rejecting the claim.

5. Mr. K. Elangoo, learned counsel appearing for the petitioner would submit that the competent Civil Court has decided everyone of the requirements for the purpose of considering the institution as minority institution and in the said judgment, in which the Government of Tamil Nadu and director of school education are parties. In such circumstances, when the said judgment of the Civil Court between the petitioner and the respondents

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have become final, the respondents are bound by the Civil Court decree and they ought to have declared the petitioner institution as minority institution.

6. On the other hand, Mrs. K. Dhakshayani Reddy, learned Government advocate appearing for the respondents would rely upon the various Government orders including G.O.Ms.No.270 higher education (J1) department dated 17.6.1998 to substantiate her contention that to declare the minority status of any institution lies with the Government and in fact the Government has formulated various principles in the form of guidelines for the purpose of declaring an institution a minority institution. According to her, the decision taken by the impugned order by which the Government has retained its power to declare the institution as a minority institution to confer the benefit under Article 30 of the Constitution of India is well within the jurisdiction of the first respondent Government. She has produced the entire records.

7. At the outset, it is clear that the petitioner institution is established and run by a minority religion, namely, Muslims. The fact that the petitioner’s father in the year 1940 has started the institution in the area which is predominantly covered by Muslim community is not in dispute. In fact, after the death of his father, the petitioner has filed a suit in O.S.No.1324 of 1994 on the file of the Additional District Munsif Court No.II, Kallakurichi by making the Government of Tamil Nadu and director of school education, who are respondents herein, as defendants. It was after hearing both the parties, after contest, a detailed judgment has been passed by the Civil Court in the judgment dated 20.11.1996. While deciding about the status of minority, there has been a specific finding given by the Civil Court stating to the effect that the institution as per the record was started in the year 1940 by Abdul Kareem and that was started for the benefit of Muslim community in that area. That decision was arrived at on examination of the said witness. The petitioner has taken charge after the death of his father as correspondent and the records have been produced before the Civil Court that the petitioner belong to Mohammedan community, in fact the Civil Court has referred to the voters list, marked as Ex.A.4 and arrived at a factual conclusion that the entire area is covered by Muslim predominantly. The Court has also relied on Ex.A.5, which is a monthly register of the school and has come to the conclusion that the persons who are benefited under the petitioner school are Muslims in large number and the school has been recognised and functioning for the past 50 years and it was taking all the facts and circumstances on record, the Civil Court passed a detailed judgment in which the respondents are parties holding that the petitioner institution is a minority institution covered for the protection under Article 30 (1) of the Constitution of India.

8. In the case of The Secretary, D.G. Vaishnav College, Arumbakkam, Chennai-600106 and another v. Dr. T. Venkataraman Reader and Head, Post Graduate and Research, Dept. of Chemistry, D.G. Vaishnav College, Chennai-106 and 3 others reported in 2001 (4) CTC 641, the Honourable first bench of this Court while dealing with the minority status of an institution in the context of a Civil Court decree held that if the Civil Court has granted minority status to any institution that has to be taken note of for the purpose of deciding the minority status of the institution. In fact, the Division Bench

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has also taken note of the interim order passed by the Honourable Supreme Court in the case of T.M.A. Pai Foundation and others v. State of Karnataka and others, L.A.No.20 in WP (c) No.317 of 1993 dated 17.10.1994 wherein by way of interim direction the Supreme Court has directed the minority institution to approach the Government for the purpose of necessary declaration. While considering that aspect of the interim order passed by the Apex Court, the Division Bench has held that the interim direction granted does not operate as in rem. Further G.O.Ms.No.270 Higher Education (J1) department dated 17.6.1998, which is relied upon by the learned counsel for the respondent by producing the copy of the G.O., was also brought to the notice of the Division Bench and the Division Bench has considered. The operative portion of the judgment is as follows:

“3. The appellant in W.A.No.2387 of 2001 has been granted a minority status by a declaration granted by a decree dated 19.2.1988 by the Court of the Principal District Judge, Madras, in A.S.No.275 of 1987. It is not disputed that the said decree had become final. As on date, the said decree has not been nullified. But Mr. P. Jyothimani, learned counsel for the first respondent, submits that in view of G.O.Ms.No.270, dated 17.6.1998, the decree, which has been granted on 19.2.1988, had become inoperative. Prima facie, we are unable to agree with the said submission as the Government has been a party and suffered a decree on 19.2.1988 and the said decree having become final, the Government is bound by the same unless there is a specific legislation that too, if it is not an affront to the above decree granted by the judicial authority. Then Mr. Jyothimani takes us to the order of the Supreme Court in T.M.A. Pai Foundation and others v. State of Karnataka and others, L.A.No.20 in WP (c) No.317 of 1993 dated 17.10.1994. It is not disputed that the said writ petition is still pending on the file of the Supreme Court. In the interim order passed on the above date, the Civil Court’s decree granting minority status to the respondents, who have been parties therein, that is respondents 2 to 6, has not been taken cognizance of particular reference has been made to the said respondents and the said order does not operate in rem. In fact that position has been clarified by a learned single Judge of this Court in The Correspondent, St. Ignatius Higher Secondary School, Kurumbanai-629251, Kanyakumari District and others v. Director of School Education, College Road, Chennai 6 and others, 1999 (1) CTC 121. It is not brought to our notice that this judgment of the learned single Judge has been overruled. As such, we find a prima facie case in favour of the appellant in W.A.No.2387 of 2001 that it still enjoys minority status as on date.”

9. Now it is informed that T.M.A. Pai Foundation case has been finally disposed of by the Supreme Court reported in AIR 2003 SC 355 : (2002) 8 SCC 481. While rendering judgment in the said case, it is seen that the Honourable Apex Court has not decided about the authority competent to decide about the minority status.

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10. In such circumstances, the decision of the Division Bench as cited supra observing that the interim order passed by the Honourable Apex Court does not operate in rem comes to be true. Now by a reference to G.O.Ms. No.270 dated 17.6.1998, it is seen that the Government has issued following guidelines in the said G.O. for the purpose of declaring the claim of any institution as a minority institution for conferring minority status.

“(i) The object of the educational institutions should be for noting the interests of the minority concerned and it should subserve the interests of the minority community concerned.

(ii) Such educational institutions should have been established by the minority and should be continuously administered only by the members of that minority.

(iii) An educational institution which was originally not established by a minority community cannot acquire such status or character subsequently under any circumstances.

(iv) All the trustees or members of the governing body of the minority educational institutions shall belong only to the concerned minority. In the case of self-financing educational institutions imparting professional courses of education established and administered by any minority they shall admit students of that minority alone, not exceeding 50% of the sanctioned strength, if there is any vacancy not filled as above such vacancy in that 50% shall be filled up only on the basis of merit and from common merit list prepared by the competent authority.

(v) To decide whether an applicant is a minority or not based on religion or language, the total population of that minority in the State of Tamil Nadu shall be taken into consideration and not the population of that minority in any particular region where the educational institution is situated.

(vi) In so far as Tamil Nadu State is concerned, any person whose mother tongue is any language other than Tamil shall be considered as linguistic minority, in the State and in respect of religious minority, any person whose religion is other than Hinduism shall be considered as a religious minority in the State.”

11. A reference to the said requirements contemplated as a matter of guidelines in the above G.O. along with Civil Court judgment, which has been referred to, which relates to the petitioner institution, shows that in fact everyone of the requirements as contemplated in the form of guidelines has been dealt with by the Civil Court between the same parties. In fact, it is found on record by the competent Civil Court that the institution has been established by the father of the petitioner 40 years before and the area in which the institution is started is predominantly Muslims and that the majority of the students studying there are Muslims.

12. In such view of the matter, the requirements as contemplated in the guidelines of the Government are on the face of it have been fulfilled. Therefore, in such view of the matter, the impugned G.O.(Id)No.293 dated 12.9.2000, which is admitted to have been passed in respect of the petitioner institution alone and letter No.33970/X.2/2002-9 dated 8.10.2007 are set

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aside with a direction to the first respondent to consider the case of the petitioner afresh in the light of the guidelines as well as the factual position stated above and pass appropriate orders regarding grant of minority status of the petitioner expeditiously, in any event, within a period of 16 weeks from the date of receipt of a copy of this order.

13. It is needless to state that in the event of the first respondent granting such minority status, the petitioner shall maintain all the stipulations required for the purpose of retaining the minority status and in the absence of following any one of the stipulation, it is always open to the Government to take action in accordance with law.

14. Accordingly, this writ petition is allowed. No costs. Consequently, M.P.Nos.1 and 3 of 2009 are closed.

Petition allowed.

[2009 (3) T.N.C.J. 761 (Mad)]MADRAS HIGH COURT

BEFORE:R. SUDHAKAR, J.

G. CHANDRA AND OTHERS ...PetitionersVersus

M. AMUTHAVALLI ...Respondent[Civil Revision Petition (PD) No. 2436 of 2009 and M.P.No. 1 of 2009, decided

on 21st August, 2009]Civil Procedure Code, 1908—Order 8, Rule 9 read with Section

151—Suit for partition—Defendant want to file additional written statement—Claim that plaintiff borrowed money from mother of defendant but did not repay—Plea of set off—First Additional District Judge dismissed the petition on ground that plea of set off should have been taken at first hearing—Sub-Judge also dismissed the appeal—The proposed written statement not filed by mother of defendant—Such a claim has no relevance—Held, reasoning of Courts below to dismiss petition justified—Petition dismissed at admission stage. (Paras 2 and 4 to 8)

Counsel.—Mr. V. Nicholas, for the petitioner.Important point

The set off is claimed in a partition suit and it relates to the property of the father, whereas the money is alleged to have been paid by the mother. Such a claim, therefore, has no relevance in the partition suit.

JUDGMENT

R. SUDHAKAR, J.—The civil revision petition is filed against the judgment and decree dated 19.12.2008 passed in C.M.A.No.19 of 2008 on the file of Principal Sub Court, Salem, confirming the fair and decretal order dated 9.4.2008 passed in I.A.No.433 of 2008 in O.S.No.94 of 2007 on the file of the First Additional District Munsif Court, Salem.

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2. The revision petitioners are the defendants 1 to 4. The respondent is the plaintiff. The plaintiff is the daughter of the first defendant. The first defendant is the wife of late S.N. Govindarajan. Defendants 2 to 4 are also daughters of late S.N. Govindarajan. The suit is filed for partition of the suit schedule property. A written statement was filed by the first defendant, the wife of late S.N. Govindarajan and mother of the plaintiff. The said written statement was adopted by the other defendants, viz., defendants 2 to 4, who are the revision petitioners herein. The trial commenced on 29.1.2008. The plaintiff’s side evidence was closed and posted for defendants’ side evidence, at that point of time, a petition under Order 8, Rule 9 read with Section 151, CPC was filed stating that the petitioners herein, who are defendants, want to file additional written statement. The proposed additional written statement filed by the third defendant states that the plaintiff borrowed Rs.1,25,000/- on 10.12.2001 and Rs.3,00,000/- on 4.9.2006 from the mother, viz., the first defendant and did not repay the principal and interest. It is further averred that when the defendants 2 to 4 demanded repayment of the said amount with interest, the plaintiff has filed the suit for partition. Para 4 of the proposed additional written statement which is relevant for the present adjudication reads as follows:

“4. Under these circumstances the plaintiff is already enjoying 95 sq.ft. of joint family property worth about Rs.95,000/- and borrowed a sum of Rs.4,25,000/- from the 1st defendant and not repaid it. Hence, this principal amount and interest together may be set off from the plaintiff’s share. The remaining amount should be given by the plaintiff to the other defendants.”

Though the application is filed under Order 8, Rule 9, CPC, in effect, the revision petitioners/defendants 1 to 4 have made a plea for set off from the amount said to have been paid to the plaintiff.

3. The respondent/plaintiff filed a detailed counter and stated that the trial has commenced, plaintiff’s side evidence was closed and when the matter was listed for defendants’ side evidence, they came forward with the plea of set off. There is undue delay on the part of the defendants in filing the petition. The illness of the mother for the alleged delay is denied. In the written statement that has already been filed, the said plea is not raised. The new plea has no relevance to the partition suit. The allegation of borrowing the amount from the first defendant is also denied. The specific plea is that the partition suit is with regard to the plaintiff’s right over the property of the father and not that of the mother of the plaintiff. It is further pleaded that the plea of borrowing money from the first defendant is wrong and emphatically denied.

4. Learned First Additional District Munsif, Salem, dismissed the petition stating that the plea of set off should have been taken at the first hearing. In the written statement filed by the first defendant, the mother of the plaintiff, such a plea was not taken. Defendants 2 to 4 have adopted the written statement filed by the first defendant, the mother. The trial Court held that no reason is given for not pleading the set off claim at the first hearing of the suit. Since the trial had commenced on 29.1.2008 and the evidence of

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plaintiff was over, the case was posted for defendants’ side evidence, the learned Additional District Munsif dismissed the application.

5. In appeal, the learned Sub Judge, came to hold that the trial has commenced, the plaintiff’s side evidence was over, the case was posted for defendants’ side evidence, and a new plea that the plaintiff has borrowed money from the first defendant has been taken by way of set off, which cannot be raised in a partition suit. In any event the Courts below held that Court fee has not been paid for the set off claim. For the above said reasons, the appeal was dismissed. Present revision has been filed challenging the orders of the Court below.

6. Para 4 of the proposed additional written statement, clearly states that certain amount has been borrowed by the plaintiff from the first defendant, the mother and that has to be set off. However, the application has been filed under Order 8, Rule 9, CPC stating that it is a further pleading thereby confusing the issue. In any event, in the written statement filed by the mother, the first defendant, there is no whisper that the plaintiff borrowed the money from the first defendant. This written statement was adopted by other defendants. The proposed additional written statement is not filed by the mother. The set off is claimed in a partition suit and it relates to the property of the father, whereas the money is alleged to have been paid by the mother. Such a claim, therefore, has no relevance in the partition suit as has been rightly observed by the first appellate Court. The set off has not been pleaded at the first hearing. No good reason is stated for the delay and the nature of illness on the part of the first defendant has not been established when it is specifically disputed by the plaintiff, the daughter.

7. The reasoning of the Courts below to dismiss the petition is justified. In this case the petition praying to receive additional written statement has been filed after commencement of trial and after examination of plaintiff’s side evidence. The plea for set off has been raised apparently to drag the proceedings without any just cause. The Courts below have rightly dismissed the petition.

8. Finding no merits, the civil revision petition is dismissed at the admission stage. Consequently, connected miscellaneous petition is closed.

Petition dismissed.

[2009 (3) T.N.C.J. 764 (Mad)]

MADRAS HIGH COURT

BEFORE:

M. CHOCKALINGAM AND R. SUBBIAH, JJ.

N. PALANIVEL CHETTIAR AND ANOTHER ...Appellants

Versus

K. RAJESWARI AND OTHERS ...Respondents

[C.R.P. (PD) No. 2436 of 2009 and O.S.A. Nos. 259 to 261 of 2009 and M.P. Nos., decided on 24th August, 2009]

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Original Side Rules, 1956—Order 36, Rule 51 read with Clause 15 of Letter Patent—Partition—Suit for (i) appointment of receiver to take charge of all properties and business mentioned in Schedule ‘A’ to ‘F’, (ii) interim injunction restraining respondents from dealing with above properties—And (iii) for appointment of Advocate Commissioner—Single Judge only granted interim injunction with direction that first defendant to pay a sum of Rs. 1.50 lakhs and Rs. 24 lakhs towards rental collection—Modified to Rs. 16 lakhs—Order of single Judge granting injunction confirmed.

(Paras 2, 17, 19 and 20)

Counsel.—Mr. T.V. Ramanujun, Senior Counsel, for Mr. K. Balu, for the appellants; Mr. R. Parthasarathy, for the respondents 1, 2, 5 to 9.

JUDGMENT

M. CHOCKALINGAM, J.—These appeals have arisen from a common order of the learned single Judge of this Court made in O.A.Nos.1088, 1089 and 5183 of 2008 in C.S.No.954 of 2008, a suit for partition.

2. Pending the suit, the plaintiffs, the respondents 1 to 9 herein, filed these three applications namely (i) O.A.No.1088/2008 for appointment of a receiver to take charge of all the properties and business mentioned in schedule ‘A’ to ‘F’ and collect rents from the tenants in occupation of the said property and deposit the same, (ii) O.A.No.1089/2008 for an interim injunction restraining the respondents therein from dealing with any of the properties mentioned in schedule ‘A’ to ‘F’ and (iii) O.A.No.5183/2008 for appointment of an advocate Commissioner to inspect the property at door Nos.16 and 17, Cart Track Road, Maduvankarai, Velacherry, Chennai, and file a report. The appellants/defendants 1 and 2 on appearance contested the applications by filing a counter.

3. The case of the plaintiffs in the said suit for partition is as follows:(a) The parties were descendants of Narayanasamy Chettiar and

Mallikeswari who had two sons. The first son was by name Kandasamy Chettiar whose wife is the first plaintiff and the other plaintiffs 2 to 5 are their sons, while the second son Palanivel Chettiar is the first defendant. The other defendants are the wife and children of the first defendant respectively. Kandasamy Chettiar died on 27.8.1994 leaving behind him the plaintiffs as the heirs. One of the sons of Kandasamy Chettiar also died on 15.7.2008, and the legal heirs were added as plaintiffs 6 to 9. Narayanasamy Chettiar was a medical practitioner. He along with his son Kandasamy Chettiar developed various businesses. There was improve-ment in the business because of the hard work. All the properties shown in schedule ‘A’ to ‘F’, were acquired from and out of the family business. Narayanasamy Chettiar started a firm by name M/s. B.A. Narayanasamy Chettiar and sons dealing with the sale of paints and hardwares. On his death, the partnership firm was reconstituted. After the death of his son Kandasamy Chettiar, it was again reconstituted in the year 1994. Apart from that, various businesses were also run by the family. Thus, all the properties were purchased from

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the income of the joint family business, and they got the character of joint family properties.

(b) The first defendant let out all the properties to various tenants and has been collecting huge rent every month. From the property situated in Mount Road, Madras, a sum of Rs.77500/- is recovered as rent. But, only a sum of Rs.29625/- is paid to the plaintiffs every month. As far as the other properties are concerned, he is collecting more than Rs.5 lakhs per month as rent and appropriating the entire amount. There was an advertisement in Tamil newspaper on 10.8.2008 that certain properties exclusively belonged to the defendants. Under the circumstances, a legal notice was issued, and since the demand made thereat for amicable partition was not met, there arose a necessity for filing the suit. While filing the suit, it became necessary for making these applications for appointment of an Advocate Commissioner and a receiver and also for interim injunction.

4. All these applications were resisted by the defendants 1 and 2, the appellants herein, stating that the properties were not joint family properties; that all the properties were actually joint properties as found in the list filed by the defendants; that from those properties, the rents are collected from 2004 to 2008; that the total rent collected from those properties for the past four years is only Rs.9,65,500; that the properties were being maintained and also tax has been paid out of the total income in the past four years which was nearly about Rs.10 lakhs; that the surplus was not available to be shared by all the sharers, and hence, the applications were to be dismissed.

5. After hearing the learned counsel on either side and looking into the materials available, the learned single Judge took the view that it was not a fit case where neither a receiver nor an advocate Commissioner could be appointed; but, it was a fit case where an interim injunction directing the respondents not to encumber or alienate the property mentioned in Schedule ‘A’ to ‘F’ to the plaint without seeking prior permission of the Court could be granted. While making the order, the learned single Judge has directed the first defendant to pay a sum of Rs.15 lakhs towards the advance money received from Ragavendra Educational Trust to the first plaintiff who will in turn deposit in a fixed deposit in any branch of a Nationalised Bank, and out of Rs.3.50 lakhs collected from the trust and apart from giving credit to the property taxes and maintenance expenses, it was ordered that Rs.1.50 lakhs might be paid to the first plaintiff starting from 1.9.2009 every month till the disposal of the suit. Since the rent was collected from April 2008 and the defendants have already collected 16 months’ rent and the arrears of rent collected would come to nearly Rs.54 lakhs, the first defendant was directed to pay Rs.24 lakhs to the first plaintiff who in turn will share it with other plaintiffs according to their share to which each one is entitled to.

6. Aggrieved over the said order of the learned single Judge, the defendants 1 and 2 have brought forth these appeals.

7. Advancing arguments on behalf of the appellants, the learned senior counsel Mr. T.V. Ramanujun would submit that pending the suit, the above applications were filed by the plaintiffs; that while the learned single Judge

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has taken a view that it is not a fit case where the appointment of either a receiver or an Advocate Commissioner could be made, a direction was given to the first defendant to make a payment of Rs.24 lakhs to the first plaintiff; that it is in the nature of a decree even without a trial; that it is true that the plaintiffs have asked for rendition of accounts; that even without trial, the learned single Judge has directed the defendants to pay a huge sum believing the case of the plaintiffs; that it was the case of the appellants that the property mentioned in Schedule ‘A’ to ‘F’ were not joint properties; that a memo was also filed before the learned single Judge showing which were the properties in the joint names and which were the properties in the individual names; but, the learned single Judge without adverting his attention to the memo, has granted injunction in respect of the properties and in particular, those owned by the defendants also, which was erroneous; that as far as item Nos.9 and 10 of ‘A’ schedule are concerned, it is true that an advance of Rs.33 lakhs was received; but the appellants have spent more than Rs.40 lakhs for the purpose of meeting the requirement of the tenants; that apart from that, the said advance of Rs.33 lakhs is refundable at the time when the tenant is vacated and vacant possession is delivered; but the learned single Judge has issued a direction that the first appellant should pay a sum of Rs.15 lakhs to the first respondent who will in turn deposit in a fixed deposit; that it was not only against law but also against the materials available on record and beyond the scope of the suit; that the learned single Judge also failed to note that out of the rent of Rs.3.50 lakhs, the tenant was paying only Rs.2,94,872/- after deducting TDS and half yearly tax payable to the property namely Rs.1 lakh; that now the corporation is likely to increase the same; that apart from that, tenanted premises has to be maintained by doing repairs from time to time like doing colour washing, painting and other maintenance work periodically; that water tax and other statutory liabilities were to be met; that apart from all the above, the learned single Judge has also directed the payment of Rs.24 lakhs to the first plaintiff which was also beyond the scope of the suit; that there was no such relief sought for in the suit, and the same has got to be decided in the suit where the plaintiffs have sought for the relief of rendition of accounts; that the learned single Judge has committed an error in directing the first defendant to make payment of Rs.1.50 lakhs from 1.9.2009 every month pending disposal of the suit; that it was against law and also materials available; and that if the order is allowed to stand, it would lead to failure of justice and the appellants would be put to irreparable loss and hardship.

8. Added further the learned senior counsel that admittedly, there was no joint family and the businesses were only partnership businesses; that most of them were already closed; that the findings given by the learned single Judge are not sound and absolutely without any basis at all; that onerous conditions were imposed in the order directing the first appellant to pay a sum of Rs.24 lakhs to the first respondent; that even the plaintiffs have not stated what was the quantum of share they were claiming; that the balance of convenience was against the plaintiffs; that no prima facie case was made out to grant injunction, and under the circumstances, the common order of the learned single Judge has got to be set aside.

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9. Contrary to the above, the learned counsel for the respondents in his sincere attempt of sustaining the order of the learned single Judge made the very same submissions made before the learned single Judge.

10. The Court paid its anxious consideration on the submissions made and looked into the materials available.

11. Pending C.S.No.954 of 2008, a suit for partition, the above three applications were filed for (i) appointment of receiver to take charge of the properties and business mentioned in Schedule ‘A’ to ‘F’, (ii) an order of interim injunction to restrain the defendants from alienating or dealing with the properties mentioned in Schedule ‘A’ to ‘F’ and (iii) appointment of advocate Commissioner in respect of the property in door Nos.16 and 17, cart track road, Maduvankarai, Velacherry. The learned single Judge took the view that it is not a fit case where either receiver or Advocate Commissioner could be appointed and denied the request of the plaintiffs. The plaintiffs have not brought forth any appeal challenging that part of the order.

12. Admittedly, the plaintiffs 1 to 5 are the wife and sons of Kandasamy Chettiar, the first son of Narayanasamy Chettiar and Mallikeswari, respectively. The first defendant is the brother of Kandasamy Chettiar. The other defendants are the wife and sons of the first defendant. The consistent case of the plaintiffs is that the said Narayanasamy Chettiar started a firm in the name of M/s. B.A. Narayanasamy Chettiar and sons. It was a partnership firm and on his death, it was reconstituted, and on the death of Kandasamy Chettiar for the second time, the said business was reconstituted. It is not in controversy that it was a partnership business. The further case of the plaintiffs is that all the immovable properties found in the schedules to the plaint were purchased from the income of the various businesses run by the family, and they are joint family properties to be divided among the parties. The same was resisted by the defendants stating that those properties are not joint family properties. Admittedly some of the properties are in joint names, and the rest of the properties are in the individual names. In ‘A’ schedule, item Nos.1, 4, 5, 6, 7, 8, 9, 12 and 13 are in joint names, while item Nos.2, 3, 10 and 11 are in individual names. Equally in ‘B’ schedule, item Nos.1, 2, 6, 7, 10, 13 and 14 are in the joint names, while item Nos.3 to 5, 8, 9, 11, 12, 15 and 16 are in the individual names. In Schedule ‘C’ item Nos.1 to 6 and 21 are in joint names, while items 7 to 20 are in the individual names. In Schedule ‘D’ items 4 to 8 are in joint names while items 1 to 3, 9 and 10 are in the individual names. The property in Schedule ‘E’ is in the joint names.

13. It is not in controversy that as shown above, the properties are both in joint names and in the individual names of the plaintiffs and defendants respectively. The learned counsel for the appellants would submit that while the properties stand in the names of the individuals, no question of granting interim injunction pending the suit would arise, and they should be allowed to deal with their respective properties; that insofar as the properties which are in the joint names, there is controversy, and hence till the disposal of the suit, injunction could be granted. On the contrary, the case of the plaintiffs is that all the properties though in the name of individuals, also belonged to the joint family; that when the plaintiffs have filed the suit stating that the family was running a partnership business and other businesses also, and all the

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properties were purchased out of the income from those family businesses, they are liable to be divided, and under the circumstances, it is a fit case where injunction has to be continued. At this juncture, it is pertinent to point out that admittedly, all the properties are actually in possession of the defendants, and the plaintiffs are not allowed to enjoy any one of the properties, and only a payment of Rs.29,000/- and odd out of the rent recovered from item Nos.7 and 8 of ‘A’ schedule namely the building situated at Mount Road, Madras, is made. Even though number of properties stand in the name of individual plaintiffs, how the management of these properties continued with the first defendant, no explanation was forthcoming from the appellants’ side. It should not be forgotten that since the requests for appointment of receiver and Advocate Commissioner are denied, it is a fit case where any alienation or encumbrance on the properties by the defendants should be restrained. Under the circumstances, the interim injunction originally granted has got to be sustained. Accordingly, it is sustained.

14. As far as the directions issued by the learned single Judge as to the payment is concerned, it is not in controversy that item Nos.9 and 10 of ‘A’ schedule stand in the individual names of the plaintiffs and the defendants respectively. Both the properties are situated within the same compound, and Ragavendra Educational Trust is being run there. It is also not in controversy that a sum of Rs.33 lakhs was received by the first defendant by way of advance. The defendants in the course of their counter have candidly admitted that out of the amount of Rs.3.50 lakhs per month, the tenant is paying only Rs.2,94,872/- after deducting TDS and also half yearly tax payable to the property to the extent of Rs.1 lakh.

15. Insofar as the direction for making a payment of Rs.15 lakhs by the first defendant towards the share in the advance amount for being deposited by the first plaintiff, it is contended by the appellants’ side that it is true that though an advance of Rs.33 lakhs was received from the tenant, a sum of Rs.40 lakhs has been spent by the first defendant for the purpose of raising necessary constructions to run the trust. It is also contended that the said sum of advance was refundable. This Court is at a loss to understand why the first defendant should come forward to raise a construction at a cost of Rs.40 lakhs out of his money while he got an advance of Rs.33 lakhs. This contention on the face of it lacks bona fide while it is admitted that item No.9 of ‘A’ schedule is in the individual name of the first plaintiff, and item No.10 stands in the name of the first defendant. It is not the case of the defendants that they got any prior permission from the plaintiffs to raise construction or to lease it out. Admittedly, the said sum of Rs.33 lakhs was received as advance, and hence the learned single Judge was thoroughly justified in issuing a direction for payment of Rs.15 lakhs to the first plaintiff who in turn has to deposit the same in fixed deposit. In such circumstances, that part of the order has got to be sustained. Accordingly, it is sustained.

16. The direction issued by the learned single Judge that the first defendant should pay a sum of Rs.1.50 lakhs towards the share in the land every month from 1.9.2009 and apart from that, he should also pay Rs.24 lakhs towards the share of the plaintiffs in the rent collected by the first defendant for a period of 16 months, is assailed by the appellants’ side that it

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was beyond the scope of the civil action in the suit. As could be seen above, all the properties mentioned in Schedule ‘A’ to ‘F’ irrespective of the fact whether they stand in joint names or in the names of the parties and whether they collected rent or otherwise are under the exclusive possession and enjoyment of the defendants excepting the fact that the first defendant is making a payment of Rs.29,000/- and odd towards the share of rental from the building situated in item Nos.7 and 8 of Schedule ‘A’ situated at Mount Road, Madras. It should not be forgotten for a while that it is a case where the interim receiver was not appointed by the Court. In such circumstances, if the contention of the appellants’ side has got to be accepted, the plaintiffs if entitled to their share, as decided by the Court at the time of trial in the partition suit, should wait all along the years without getting anything from the property. At no stretch of imagination, such a situation could be allowed to continue. It is brought to the notice of the Court that items 7 and 8 of Schedule ‘A’ consist of ground floor and other floors with the plinth area of 10000 sq.ft. on a site measuring 2400 sq.ft. It is admitted by the parties that except 1200 sq.ft. in the ground floor, the remainder of the entire building namely 8800 sq.ft. is rented out, and a sum of Rs.77,500/- is being received by the first defendant as rent from different tenants out of which Rs.29,625/- is being paid to the plaintiffs every month. It is pertinent to point out that this 1200 sq.ft. in that item if rented out, would also yield rent.

17. It is not in controversy that from all the properties whether they are in joint names or in the names of the individuals, the first defendant is recovering rent from the tenants, and the payment made to the first plaintiff is only Rs.29,625/- out of the entire rental income. In such circumstances, the learned single Judge has taken into consideration the same and has ordered Rs.1.50 lakhs to the first plaintiff from 1.9.2009 onwards till the disposal of the suit.

18. It is true that the plaintiffs have asked for rendition of accounts. It is also true that the direction was not given by deciding the issue on rendition of accounts. But, it was a case where the Court was called upon to issue a direction to the first defendant to make payment of a reasonable sum which, in the considered opinion of the Court, should be ordered while the rental collection from all the properties is being made by the first defendant. It is admitted by the defendants that from Ragavendra Educational Trust, out of the monthly rental of Rs.3.50 lakhs after making the statutory deductions, the first defendant is getting Rs.2,94,872/-. Apart from the said sum, the first defendant is getting Rs.77,500/- from item Nos.7 and 8 of ‘A’ schedule and also making rental collections from all the tenants in the property. In such circumstances, the learned single Judge thought it fit not to appoint a receiver, but issued a direction to the first defendant to make payment of Rs.1.50 lakhs every month from 1.9.2009 onwards which, in the considered opinion of the Court, does not require to be disturbed. Accordingly, it is sustained. It is also made clear that this payment of Rs.1.50 lakhs is inclusive of Rs.29,625/- which is now being paid by the first defendant to the first plaintiff.

19. Insofar as the next direction that the first respondent should pay a sum of Rs.24 lakhs to the first plaintiff since the first defendant has collected 16 months’ rent which would come to Rs.54 lakhs, even according to the first

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defendant, he was collecting nearly Rs.3 lakhs per month from items 9 and 10 of Schedule ‘A’ from the said educational trust. But, out of the same, the expenses to be borne by the first defendant by way of property tax and maintenance of the building have got to be taken into consideration. In such circumstances, a direction to the first defendant to make a payment of Rs.16 lakhs instead of Rs.24 lakhs as directed by the learned single Judge, towards the rental collection made from April 2008 could be issued.

20. In the result, O.S.A.No.260 of 2009 is dismissed confirming the order of the learned single Judge granting injunction.

21. The order made by the learned single Judge directing a payment of Rs.24 lakhs by the first defendant to the first plaintiff is modified to the extent that the first defendant should pay Rs.16 lakhs (rupees sixteen lakhs only) to the first plaintiff towards the rental collection made from April 2008, within a period of two months herefrom. O.S.A. Nos.259 and 261 of 2009 are, accordingly, disposed of. The parties shall bear their own costs. Consequently connected M.Ps. are closed.

Application disposed of.

[2009 (3) T.N.C.J. 771 (Mad)]MADRAS HIGH COURT

BEFORE:V. PERIYA KARUPPIAH, J.

INDIRA BALASUBRAMANIAM AND OTHERS ...PetitionersVersus

S. SUBASH ...Respondent

[C.R.P. (NPD) No. 3082 of 2008 and M.P. No. 1 of 2008, decided on 17th

August, 2009]

Suit for recovery of money—Three cheques each of value Rs. 50,000/-—Disputed cheques—Defendants seeking appointment of advocate Commissioner and sending these cheques to Forensic Science Expert for examination—Dismissed by first appellate Court—No purpose would be served by sending the cheques for expert’s opinion—Lower Court correctly rejected the claim of petitioners.

(Paras 2, 3, 5 and 16)

Case law.—2007 CCDC 343; 2004 (1) Crimes 567; AIR 2003 P&H 344; 2008 (1) CTC 491; 2008 (2) SCC (Cri) 677—referred.

Counsel.—Mr. R. Nalliyappan, for the petitioners; Mr. S. Kalyanaraman, for the respondents.

Important point

Scientific examination of ink by an expert would not be of scientific accuracy.

JUDGMENT

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V. PERIYA KARUPPIAH, J.—This revision has been filed by the petitioner against the order passed by the lower Court in I.A.No.115 of 2008 in A.S.No.18 of 2008 dated 5.9.2008.

2. The respondent herein, as plaintiff, had filed the suit in O.S.No.443 of 2002 before the trial Court against the petitioners herein/defendants for recovery of money. The said suit was dismissed by the trial Court. Against which the respondent/plaintiff has preferred an appeal in A.S.No.18 of 2008 before the first appellate Court. Pending the appeal, the petitioners herein/defendants filed an application in I.A.No.115 of 2008 seeking for appointment of an advocate Commissioner to send the disputed cheques to the forensic science expert for examination. The first appellate Court has, after considering the submissions of both sides, dismissed the said application, which necess-itated the petitioners to prefer this revision.

3. The averments in the application filed by the revision petitioners/ defendants are as follows:

The respondent/plaintiff, who has lost his case before the trial Court, has come forward with this vexatious appeal. The respondent filed the suit on the basis of three cheques each of value Rs.50,000/- dated 7.1.2002, 17.1.2002 and 23.1.2002 respectively. The cheques were presented by the plaintiff after a very long time by fabricating it. The signature of the drawer of the cheque is in one ink and the writings and the date of those cheques are in different ink. If those cheques are sent to the expert, morefully described in the petition, it will come to light that those cheques were not drawn by the drawer of the cheque. Therefore, an advocate Commissioner may be appointed to take the cheques to the expert for opinion, that the said cheques morefully detailed in the application are not written by the same person and in different ink at vast intervals of time. Therefore, the petitioners pray for appointment of an Advocate Commissioner to take the cheques mentioned in the petition to the expert for his opinion.

4. The respondent/plaintiff filed a counter contending as follows:It is deliberately false to allege that the cheques were presented by the

plaintiff after a very long time by fabricating it. It is also false to allege that the signature of the drawer of the cheque is one ink and the writings and the date of those cheques are in different ink. It is well settled law that if the signature is admitted the presumption is that the cheques are supported by consideration. Further, the blank cheques filed by other persons also valid in law. Therefore, there is no necessity to send the cheques for expert opinion. The petition is not maintainable in the appellate stage and only to drag on the proceedings the petitioners have come forward with this vexatious petition. Hence, the defendant submit that the petition is liable to be dismissed.

5. The lower Court had considered the case of both the parties and had come to the conclusion of dismissing the petition filed by the petitioners, who sought for sending the disputed documents namely three cheques to the forensic science expert to find out the age of the ink used to fill up the cheques and also age of the ink used for the signature.

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6. The learned counsel for the petitioners would submit in his argument that the lower Court had not considered the rights of the petitioners to disprove the genuineness of the cheques said to have been issued by the husband of the first petitioner viz., Balasubramaniam for the alleged transaction mentioned in the plaint. He would further submit that the petitioners being the defendants are to discharge the burden of proving that the contents of the cheques were not filled up by the signatory and the age of the ink used for such filling up is very recent one, while the age of the ink used for signatures were very old and thereby to substantiate the case of the defendants. He would also submit that the opinion of the forensic science expert, on the cheques sent for examination of the age of the inks, would certainly disclose that the signatures put in the cheques are much earlier, to the year 2002 the alleged year of issuance of impugned cheques and that would solve that the alleged borrowal of Rs.1,50,000/- by the deceased Balasubramaniam in the year 2002 could not have been true. He would also submit that there cannot be any prejudice caused to the respondent herein in sending those documents for being subjected to the forensic science expert’s examination regarding the age of the inks, because that would be helpful to the Court to come to correct conclusion. He would again submit that if the signatures of those three cheques were found laid with different ink, it could be considered as older than the ink used for filling up the impugned cheques and that would draw the material alteration of the cheques and therefore, it is important that those cheques should have been ordered to be sent for expert’s examination and opinion. For that, he would draw the attention of this Court to the judgment of Honourable Apex Court made in the case between T. Nagappa v. Y.R. Muralidhar reported in 2008 (2) SCC (Crl) 677 for the proposition that an opportunity must be granted to the person for adducing evidence in rebuttal.

7. He would further submit that the petitioners are the defendants in the suit and respondents in the appeal, and in the event of the appellant Court accepts the case of the appellant/plaintiff that the cheques were validly signed by the deceased-Balasubramaniam after filling up of the details in the said three cheques, it would be necessary for the petitioners to show that those signatures were put by the said Balasubramaiam in the year 1997 when there was a partnership firm existed in between the said Balasubra-maniam and the wife of the respondent. He would further submit that in accordance with the above said judgment, there must be a fair trial and the defendants must be given an opportunity to defend the case and for that purpose the request of the petitioners seeking for sending the disputed cheques to the forensic science expert’s opinion to know about the age of the both the inks used for filling up and putting the signatures respectively, in the impugned cheques.

8. The learned counsel for the petitioners would also cite a judgment of this Court reported in 2007 CCDC 343 in between P.R. Ramakrishnan v. P. Govindarajan, for the principle that the request for sending the cheques for examination by the expert to ascertain the signature, under Section 45 of the Evidence Act, should have been granted.

9. He would also refer to a judgment of Andhra Pradesh High Court reported 2004 (1) Crimes 567 in between Avon Organics Ltd. v. Poineer

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Products Limited & Ors., for the principle that filling up of a blank cheque issued by the signatory, in respect of the amount and date would amount to material alteration. On that strength the learned counsel for the petitioners would argue that if the age of the ink used for filling up the amount both in words and numerical and the date are found to have been lesser in age to that of the ink used for putting up the signature, those filling up of the cheques in respect of the amount and the date would be amounting to material alteration. Therefore, he would insist in his argument that the lower Court ought to have ordered those cheques sent for examination by a forensic science expert and his opinion be obtained regarding the age of the ink, through a Commissioner to be appointed, but the lower Court had not considered the said situation, but, under a wrong notion that the cheques would come under Section 20 of the Negotiable Instruments Act, the lower Court dismissed the application. Therefore, the order passed by the lower Court should have been interfered with and the revision may be allowed.

10. Per contra, the learned counsel for the respondent/plaintiff would submit in his argument that the trial Court had come to a wrong conclusion and had dismissed the suit filed by the respondent herein/plaintiff and against which the respondent/plaintiff had preferred the appeal before the first appellate Court and during the pendency of the appeal, the defendants, who are the respondents in the appeal, filed the application seeking for sending the three cheques executed by the said Balasubramaniam for expert’s opinion as to the age of the ink, which is not possible scientifically to decide the present case. He would further submit in his argument that the petitioners did not apply for sending those documents to the expert’s opinion before the trial Court but, they have strangely applied before the first appellate Court seeking for such opinion, which is clearly amounting to fill up the lacuna of their case. He would further submit that the claim of the petitioners will not be sustainable in view of the judgment of this Court reported in 2008 (1) CTC 491 in between S. Gopal v. D. Balachandran, to the principle that the age of the ink cannot be determined by an expert with scientific accuracy and the use of old ink manufactured long ago in a subsequent period will definitely create a dent in the opinion of the expert, which will result in further confusion. Therefore, he would request the Court that the revision petition filed by the petitioners may not be allowed since the order passed by the lower Court is correct though it did not discuss about the position of law which was enumerated in 2008 (1) CTC 491.

11. I have given anxious consideration to the arguments advanced on either side. From the submissions made by both sides, I could see that the petitioners are the defendants before the trial Court, against whom a suit was filed by the respondent/plaintiff for recovery of money to the tune of Rs.1,50,000/- on the foot of three cheques issued by the husband of the first petitioner viz., Balasubramaniam in lieu of the borrowal of money for Rs.1,50,000/- from the plaintiff on 7.1.2002, 17.1.2002 and 23.1.2002. The trial Court had, after a full-fledged trial, dismissed the suit and the respondent/plaintiff had preferred an appeal before the first appellate Court. During the pendency of the said appeal the petitioners/respondents had filed an application seeking for sending all the three cheques to the expert’s opinion to find out as to the age of the ink used both in filling up the cheques

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and the signatures found therein. The lower appellate Court had dismissed the claim of the petitioners. It is not disputed that the petitioners who were the defendants before the trial Court, have to discharge their burden of proof in the event, the respondent/plaintiff proves the genuineness of the cheques as pleaded by him in the plaint. The trial Court had found that the plaintiff did not prove the case as pleaded by him. However, it is now under the first appellate Court’s disposal as the respondent had preferred an appeal against the judgment and decree of the trial Court. The judgment of this Court as well as the Honourable Apex Court as cited on the side of the petitioners would no doubt laydown the settled principle that the person who is to lead rebuttal evidence must be given with fair opportunity by the Courts during the time of trial. There is no dispute that the petitioners did not ask for the appointment of Commissioner for taking those documents to the experts for getting his opinion. It has been held in the judgment of our Honourable Apex Court reported in 2008 (2) SCC (Cri) 677, between T. Nagappa v. Y.R. Muralidhar, as follows:

“When a contention has been raised that the complainant has misused the cheque, even in a case where a presumption can be raised under Section 118(a) or 139 of the said Act, an opportunity must be granted to the accused for adducing evidence in rebuttal thereof. As the law places the burden on the accused, he must be given an opportunity to discharge it.An accused has a right to fair trial. He has a right to defend himself as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India.”

12. The reliance was placed by the learned counsel for the petitioners on the judgment of this Court reported in 2007 CCDC 343 in between P.R. Ramakrishnan v. P. Govindarajan, which would go to show that:

“The appellant in this case requests for sending the cheque, in question, for the opinion of the hand-writing expert after the res-pondent has closed her evidence, the Magistrate should have granted such a request unless he thinks that the object of the appellant is vexation or delaying the criminal proceedings. In the circumstances, the order of the High Court impugned in this appeal upholding the order of the Magistrate is erroneous and not sustainable.”

In the said judgment of this Court it has been dealt with under the Code of Criminal Procedure regarding the right of an accused and it has been sought to be equated with the defendants in a civil suit. It cannot be in a dispute whenever the signatures are questioned, the defendants have the right to send those documents for expert’s opinion after comparing the disputed signature with that of the admitted signature of the person of a contemporaneous period. This is not a case for seeking the signature for comparison and this is a case for determination of the age of the ink in order to find out the truth and genuineness of the cheques issued by the said Balasubraminam.

13. As regards the judgment of this Court reported in 2008 (1) CTC 491 in between S. Gopal v. D. Balachandran, it has been categorically found that the age of the ink cannot be determined by the expert with scientific

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accuracy. This Court had relied upon a judgment of Punjab and Haryana High Court reported in AIR 2003 P&H 344, between Yash Pal v. Kartar Singh. The relevant passage would run as follows:

“As rightly observed by the Punjab and Haryana High Court in the ratio referred to above, if an old ink is used by the person, who assisted the drawer who had already put his signature in the cheque, to fill up the matter, no useful purpose will be served if such a cheque is analysed by the expert for rendering an opinion.”

So, as per the judgment of this Court the scientific examination of ink by an expert would not be of scientific accuracy.

14. The case of the petitioners/defendants would be that the disputed cheques were signed by the deceased Balasubramaniam in the year 1997 for ABC Textiles as partner and they were kept blank in the partnership concern, in which the plaintiff’s wife was also one of the partners and she got possession of those blank cheques and they were utilized in the year 2002, as if, the deceased Balasubramaniam had borrowed a sum of Rs.1,50,000/- from the plaintiff and had deposited those cheques on 7.1.2002, 17.1.2002 and 23.1.2002 respectively to the respondent/plaintiff. The additional type-set produced by the petitioners would go to show the disputed cheques are found in pages 1, 2 and 3. The contention of the petitioners would be that in the said cheques it has been referred to as ‘for ABC Textiles’ and the cheque leaves were meant for the years 1990s and therefore, they were printed in the cheques for the use of filling up the years of 1990s along with 19. As printed in the cheques. These contentions are left open to be decided by the appellate Court and they are not helpful to decide the question of sending those cheques for examination by expert and to give his opinion.

15. The judgment of the Andhra Pradesh High Court reported in 2004 (1) Crimes 567 in between Avon Organics Ltd. v. Poineer Products Limited & Ors., regarding the filling up of amount portion and date attracts material change and it could not be enforced even though it was used for legal liability. All these circumstances are also to be considered by the first appellate Court before whom the appeal is pending and it is to be considered by the said Court only. Apart from that, the oral evidence regarding the issuance of the cheques are also available as produced before the trial Court.

16. In view of the judgment of this Court discussed earlier there would not be any purpose in sending the impugned cheques for examination to ascertain its age of the ink used for filling up its particulars and signatures put up therein. Therefore, the request of the petitioners to send the cheques through an Advocate Commissioner for expert’s opinion as to the age of the ink cannot be ordered since it does not result in any scientific accuracy. The lower Court had not discussed these points but correctly rejected the claim of the petitioners. Therefore, this Court is not inclined to interfere with the findings of the lower Court and accordingly, the revision fails and the same is dismissed.

Revision dismissed.

[2009 (3) T.N.C.J. 778 (SC)]

SUPREME COURT

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BEFORE:

R.V. RAVEENDRAN AND B. SUDERSHAN REDDY, JJ.

STATE OF GOA AND ANOTHER ...Petitioners

Versus

GOPAL BABURAO GAUDO AND OTHERS ...Respondents

[Special Leave Petition (C) No. 10598 of 2009, decided on 14th September, 2009]

Land Acquisition Act, 1894—Section 23—Compensation—Deter-mination of—Acquisition of land for construction of by-pass road—Com-pensation determined at Rs. 7/- per sq. m.—Reference Court increased it to Rs. 154/-—High Court not interfered with award—Objection by State that acquired land fell within 40 metres margin from centre of Highway where construction was prohibited hence, enhancement was not justified—Held, a strip of land adjoining Highway cannot be treated as a land without value—Hence, no interference warranted with increase of compensation.

(Paras 3, 5, 6 and 7)

JUDGMENT

R.V. RAVEENDRAN, J.—Acquisition proceedings were initiated in regard to several lands including Survey No. 85 of Curti Village belonging to the respondents under preliminary notification dated 14.2.1991 for construction of Panda By-pass road. The Land Acquisition Officer awarded compensation at the rate of Rs.7/- per sq.m. The Reference Court increased the com-pensation to Rs. 154/- per sq.m. The High Court did not disburse the amount awarded by the Reference Court, as it found that in an appeal arising from the award in LAC No. 48/1995 relating to a comparable land compensation at a higher rate had been awarded at the rate of Rs.200/- per sq.m. Leave is sought to challenge the said judgment of the High Court dismissing the appeal of the petitioner.

2. The petitioner alleges that the acquired land measuring 2715 sq. metres, was a narrow strip which fell within the 40 metres margin from the centre of the highway where constructions were prohibited. It is contended that as the acquired land could not be used for construction, the land had to be considered as not having any development potential; and that therefore it could not be compared with the land (which was the subject-matter of LAC No. 48/1995) for which compensation had been determined having regard to its potential for development. It was also contended that being a narrow strip it was also not of much use even for agriculture purposes.

3. A long strip of land measuring more than two-third of an acre lying alongside and adjoining the Highway cannot be treated as a land without value or without any potential for development, merely on the ground that the law relating to Highways prohibited construction on either side of the Highway, upto a depth of 40 metres from the centre of the Highway. All that was required to create or realize potential of such land was to annex or merge the said strip of land with the land to its rear. In that event, the strip of land will become the ‘access’ to the rear-side land from the main road and will also become the frontage of the aggregate land, thereby enhancing the

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potential and value of the rear-side land, as also creating a potential for its own use. The contention that a land adjoining the Highway should be treated as having no development potential (and therefore, as land without much value except as ordinary agricultural land), while considering the lands to its rear which are farther away from the road, or other adjoining lands of the same extent, but having more depth (so as to extend beyond the 40 metres margin) as having potential for development, is illogical and cannot be accepted.

4. We may demonstrate the absurdity of such a contention with reference to an illustration. Let us take the example of a residential plot of land measuring 60' x 100'. Let us assume that the Municipal Bye-laws require a front (road side) set-back of 20' for construction of houses in a plot of that size. Therefore, the owner would leave a twenty feet wide front strip in the said plot free of any construction while putting up the construction in the plot. Obviously, he cannot thereafter construct in that front strip. Let us further assume that the front strip is acquired for road widening. Can the acquiring authority deny compensation to that strip on the ground that the said 20' strip acquired for road widening could not in any event be used for any construction purpose and therefore, was not of any value? Obviously not.

5. Therefore, determination of market value of the acquired land with reference to the value of comparable land cannot be faulted.

6. Another argument put forth by the petitioners is that if the statutory benefits like solatium under Section 23(2) and additional amount under Section 23(1A) of Land Acquisition Act, 1894 (‘Act’ for short), and interest are added to the compensation awarded, the compensation would bloat up having severe financial implications, and therefore, while determining compensation, the extent of statutory benefits should be taken note of or kept in view. There is absolutely no merit in the said contention. It is well-settled that the solatium, additional amount and interest have no bearing on the determination of the market value under first clause of Section 23(1) of the Act. The reason for grant of the additional statutory benefits are clearly different. The additional benefit under Section 23(1A) is to mitigate the hardship to the owner on account of deprivation of enjoyment of the land because of the delay in making the award and offering payment. The solatium under Section 23(2) is in consideration of the compulsory nature of acquisition. Interest under Section 28 of the Act is paid for delay in paying the compensation from the date on which possession is taken. They are distinct from the determination of market value. The fact that the landowner would also be entitled to statutory benefits cannot be taken into account, when determining the market value of the acquired land for purpose of compensation.

7. We find that the High Court has rightly decided the matter with reference to the facts of the case. The judgment does not call for interference. The Special leave petition is, therefore, dismissed as having no merit.

Petition dismissed.

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[2009 (3) T.N.C.J. 780 (SC)]SUPREME COURT

BEFORE:TARUN CHATTERJEE AND AFTAB ALAM, JJ.

A.K. LAKSHMIPATHY (DEAD) AND OTHERS ...AppellantsVersus

RAI SAHEB PANNALAL H. LAHOTI

CHARITABLE TRUST AND OTHERS ...Respondents[Civil Appeal No. 7208 of 2009 (Arising out of SLP No. 17630 of 2005),

decided on 28th October, 2009]Transfer of Property Act, 1882—Section 55—Urban Land (Ceiling

and Regulation) Act, 1976—Suit for specific performance of contract for sale—Held, time essence of contract as per Clauses 10 and 3 of agreement—Readiness and willingness on part of appellants to complete agreement for sale—High Court rightly confirmed concurrent findings of fact arrived by Courts below—Judgment of High Court affirmed.

(Paras 3, 17, 18 and 19)Case law.—AIR 1959 SC 1002; AIR 1963 SC 853; AIR 1993 SC 1742;

2004 (8) SCC 686; 1997 (3) SCC 1—referred.Important point

In an agreement for sale of immoveable properties, the readiness and willingness of the parties to perform their part of the contract is essential.

JUDGMENT

TARUN CHATTERJEE, J.—Leave granted.2. This appeal by way of a Special Leave Petition has been filed by the

appellants to challenge the judgment and decree dated 23rd of February, 2002 of the High Court of Andhra Pradesh at Hyderabad in C.C.C.A. No. 88/1993 and A.S No. 673 of 1995, which was filed by the defendants/respondents in so far as the direction given by the trial Court to refund a sum of Rs.1,00,000/- to the plaintiffs/appellants, which they had paid to the defendants/respondents as an advance, was concerned.

3. The relevant facts leading to the filing of this appeal are:The dispute in this appeal involves a property marked No. 1-11-251 in

Begumpet, Hyderabad (hereinafter referred to as the ‘property in question’) which was owned by one Rai Bahadur Saheb Pannalal Lahoti. By a Will, he bequeathed all his properties including the property in question and appointed Respondent No. 2 B.M. Bhandari and one Bhima Bai as joint executors of his Will. According to the Will of Rai Bahadur Saheb Pannalal Lahoti, one-fourth of the fund of his estate was to be used for hospitals and educational institutions in equal shares as the executors would deem fit. After the death of Bhima Bai, who was one of the joint executors of the Will, her heirs Govind Bai Vinani and Suresh Chandra Lahoti (Respondents No. 2 and 5 respectively) came into the picture. By a trust deed as per the wishes of the Late Rai Bahadur Saheb Pannalal Hiralal Lahoti, a Charitable Trust by the same name was set up. The trust owned properties in Hyderabad, Andhra

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Pradesh and Hingoli in Maharashtra. The registered office was in Kolkata, West Bengal. Respondent No. 2 on behalf of the trust entered into a written contract for sale with appellant No. 1 on 6th of December, 1978 agreeing to sell the property in question measuring 9400 sq. yards along with constructions thereon. The contract contained certain terms and conditions. The first of such condition was that Appellant No. 1 would advance a sum of Rs.1 lakh and the rest of the balance amount, i.e., Rs.5 lakhs would be paid by the appellants on or before 5th of June, 1979. Under the contract, the appellants also agreed to obtain the necessary permission or exemption from the competent authorities under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as “the ULC Act”). It was also alleged that the respondents shall cooperate with the appellants in getting all such necessary permissions from the competent authority under the ULC Act. Clause 10 of the Contract emphatically mentioned that time was the essence of the contract. It reads as under:

“Time will be of essence of the contract.”4. The said contract also mentioned that in case of failure of the

appellants to pay the balance amount within the stipulated time, the respondents would forfeit the balance amount.

5. Thereafter, the competent authority under the ULC Act informed the appellants of being granted exemption provided that the land was continued to be used for the purposes of the trust. Due to such intimation, the Appellants sought clarifications from Respondent No. 2 regarding procurement of permissions from the Endowment Department in a telegraphic notice on 29th of May, 1979. This was followed by a registered notice on 31st of May, 1979. Respondent No.2 sent a reply to the appellants on 4th of June, 1979 without clarifying the doubts raised on procurement of permission from the Endow-ment Department. In response, the appellants sent a detailed communication to the respondent enquiring about the state of affairs on 5th of June, 1979. The respondent No. 2 sent a reply on 6th of June, 1979 informing the appellants that there was no requirement of obtaining permission from the Endowment Department as the laws of West Bengal, which were applicable in this case, did not require any particular procedure for alienation of the trust property.

6. Thereafter, the appellants sent a communication enclosing a Photo-stat copy of a cheque of Rs. 5 lakhs, certified by the banker as “good for payment”, thus showing their readiness and willingness to complete the contract with the balance consideration but with the condition that the respondent had to obtain a certificate from, the Endowment Department. In reply, on 7th of June, 1979 the respondents sent a Photostat copy of a cheque of Rs. 1 lakh towards return of the advance amount simply terminating the agreement and threatening to forfeit the advance amount. The written communication mentioned that Respondent No. 2 was kind enough to offer the earnest amount back to the appellants on the condition that the latter would not agitate the matter further. The appellants were directed to collect the amount within three days of the receipt of the letter; otherwise the earnest money would be forfeited. The said letter mentioned that by this communica-tion the respondents would not be waiving any of their rights to pursue the matter further.

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7. The appellants then filed a suit being O.S. No. 317/1985 in the Court of the Principal Subordinate Judge, R.R. District, Hyderabad for specific performance of the said contract for sale by the seller-respondents. The trial Court framed no less than 17 issues in all. After examining witnesses, hearing arguments of both the parties and deliberating upon the issues, the trial Court, inter alia, held that the appellants by insisting upon the trustees to perform additional conditions were not ready and willing to perform their part of the contract and also holding that time was not the essence of the contract. Accordingly, the trial Court on 25th of August, 1993 dismissed the suit for specific performance but passed a decree directing refund of Rs. 1 lakh of earnest money to the appellants.

8. Thereafter, the appellants, aggrieved by the decree, filed an appeal before the High Court of Andhra Pradesh at Hyderabad being C.C.C.A. No. 88/1993 and the respondents had filed another appeal A.S. No. 673 of 1995 against the said decree, to the extent that the trial Court had directed the respondents to refund the advance amount of Rs. 1 lakh. On 23rd of February, 2003, the High Court by its judgment and decree affirmed the decree of the trial Court and held that time was the essence of the contract. Feeling aggrieved, the appellants filed a Special Leave Petition which, on grant of leave, was heard in presence of the learned counsel for the parties.

9. Having heard the learned counsel for the parties and after examining the materials on record including the judgment of the Courts below, the following questions need to be decided for proper disposal of this appeal which are as follows :

(i) Whether the insistence of the appellants to get the clearance of the Endowment Department of the State of Andhra Pradesh at Hyderabad was the condition to be incorporated in the agreement itself for the purpose of a decree for specific performance of the contract for sale ?

(ii) Whether in the facts and circumstances of the present case the appellant could be found to be not ready and willing to perform their part of the contract ?

(iii) Whether in the facts and circumstances of the present case, the High Court was in error in holding that time was the essence of the contract for sale?

(iv) Whether in the facts and circumstances of the present case, the respondents are entitled to forfeit the advance amount paid by the appellants-purchasers?

10. Let us now turn to the questions at hand. The learned counsel for the appellants argued that the appellants had shown their willingness and readiness to perform their part of the contract by sending a photostat copy of a cheque within the stipulated time. Mr. P.S. Patwalia, the learned senior counsel for the respondents, argued that the appellants were on one hand supposedly ready with the balance amount and on the other hand were imposing additional conditions, which is not permissible and which is beyond the terms of the contract. To address this question, a look at the contract for sale is pertinent. From a bare perusal of clauses 4, 7, 8 and 9 of the Contract for sale, it would be evident that the onus is on the appellants to obtain clearance from the competent authorities under the ULC Act. The

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respondents were nevertheless bound to extend their full cooperation to the vendees and to sign all necessary papers and documents. In clauses 7 to 9 of the said contract, the respondents agreed to obtain non-encumbrance and clearance certificates from the Income Tax Department and also to settle all payments to be made towards Municipal taxes, water tax, non-agricultural land assessment tax, etc. In the Contract, there is no such clause where the certificate from the Endowment Department was also to be taken for specific performance of the contract. The first appellant who was one of the executors of the said contract had admitted in his evidence that the transaction was finalized in the presence of a real estate broker and neither he nor any of the other appellants had asked the respondent to get permissions from the Endowment Department at that juncture. The first appellant had further deposed that he started entertaining doubts about the motives of the sellers from 28th of May, 1970 because there were allegedly other brokers approaching the respondent. Further P.Ws. 1 and 3 had affirmed at the trial Court level that they had entered into the agreement only after having satisfied themselves of the title of the sellers. The important admission that was made was that they were ready to go ahead to complete the contract.

11. Nevertheless, it must be recognized that it is generally the prerogative of the buyer to find out the defects in a property before buying it and also to make the seller rectify such defects. The rights of the buyer to seek reasonable clarifications and raise reasonable doubts have been statutorily recognized by Section 55 of the Transfer of Property Act, 1882 (hereinafter referred to as the T.P. Act). Section 55 runs as under :

“Rights and liabilities of buyer and seller.—In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, men-tioned in the rules next following, or such of them as are applicable to the property sold:(1) The seller is bound—

(a) To disclose to the buyer any material defect in the property [or in the seller’s title thereto] of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover;

(b) To produce to the buyer on his request for examination all documents of title relating to the property which are in the seller’s possession or power;

(c) To answer to the best of his information all relevant questions put to him by the buyer in respect to the property or the title thereto”

12. In this case, sub-section (c) of Section 55 of the T.P. Act is pertinent. According to the appellants and keeping in view of sub-sections (b) and (c) of Section 55 of the T.P. Act, it was open to the appellants to seek clarifications regarding the procurement of clearance or exemption from the Endowment Department which should be a reasonable clarification. A reading of the provisions under Section 55 of the T.P. Act which starts with “In the absence of a contract to the contrary’ would clearly mean that Section 55 (1) (b) and (c) of the T.P. Act would become applicable only in the absence of these words ‘contract to the contrary’.

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13. Mr. K.K. Venugopal, learned senior counsel for the appellants relying on sub-sections (b) and (c) of Section 55 (1) of the T.P. Act sought to contend that it was open to the appellants to seek clarifications regarding the procurement of clearance or exemption from the Endowment Department and in view of the fact that such exemption was not taken by the respondents from the Endowment Department, the terms and conditions of the contract entered into by the parties were not satisfied and, therefore, the question of refusing a decree for specific performance of the contract for sale could not arise at all on this ground alone. This submission of the learned senior counsel appearing for the appellants was, however, contested by Mr.P.S.Patwalia, learned senior counsel appearing for the respondents. According to the learned senior counsel for the respondents, since the clearance or exemption of the Endowment Department was not a condition to be fulfilled by the parties to execute the agreement for sale, it was not open to the appellants to say that before such clearance or exemption from the Endowment Department was not taken, the question of executing the deed of sale in respect of the property in question could not arise at all. We have carefully examined the rival submissions of the learned Senior Counsel appearing for the parties on this question. Before we go into this question, whether sub-sections (b) and (c) of Section 55(1) of the T.P. Act would be applicable in the facts and circumstances of the case, it would be appropriate to refer to sub-sections (b) and (c) of Section 55(1) of the T.P. Act, as noted herein earlier. Section 55 of the T.P. Act deals with rights and liabilities of buyer and seller. Sub-section (b) of Section 55(1) clearly says that it would be open to the buyer to ask the seller to produce for examination all documents of title relating to the property which are in the possession of the seller or buyer. A plain reading of this provision would amply show that documents of title relating to the property in respect of which agreement for sale was entered into must be in the possession or power of the seller which should be produced to the buyer for examination. So far as the present case is concerned, the condition regarding the clearance or exemption from the Endowment Department is not a document of title relating to the property which would benefit the buyer for examination for the purpose of completing the agreement for sale. Sub-section (c) of Section 55(1) of the T.P. Act also equally cannot be applicable in the facts and circumstances of the present case. That apart, it is evident from a plain reading of Section 55 that this section becomes applicable only in the absence of the contract to the contrary. In this case, there is admittedly a contract for sale which clearly lays down the terms and conditions to govern the sale transaction. We are in agreement with the views expressed by the High Court in the impugned judgment holding that since the Head Office of the Trust is registered at Kolkata which would be enough to show that the relevant law applicable to a charitable trust would be that of the State in which the Head Office of the Trust is registered. [See: State of Bihar & Ors. v. Smt. Charusila Dasi, AIR 1959 SC 1002 and Anant Prasad v. State of Andhra Pradesh, AIR 1963 SC 853]. In addition to this, the respondents had fulfilled their part of the obligation when respondent No.2 sent a reply dated 6th of June, 1979 intimating the appellants that there was no need to obtain any permission from the Endowment Department for the purpose of transferring the title in

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respect of the property in question as the laws of the West Bengal applicable in this case, were not required to take such permission for alienation of trust property. In view of the above, we are, therefore, of the view that there was no obligation on the part of the respondents to get clearance of permission or exemption from the Endowment Department of the State for the purpose of transferring the title of the property in question.

14. It was next contended by Mr. Venugopal, learned senior counsel appearing for the appellants, that the High Court was in error in not giving any due regard to all the clauses of the contract for sale especially Clause 11 of the agreement for sale. We do not find any merit in this contention of the learned senior counsel for the appellants. From a mere glance through the judgment of the High Court, it would be evident that the entire agreement was reproduced verbatim and the High Court in the impugned order truly went in depth into the discussion of the terms and conditions embodied in the contract for sale. We are in agreement with the High Court that its analysis was impregnable. This submission of Mr.Venugopal, learned senior counsel for the appellants, cannot be said to have any merit and is accordingly rejected.

15. It was next contended by Mr. Venugopal that although there is a specific clause in the agreement, namely, clause 10 where one of the conditions has been embodied that “time is the essence of the contract” even then it is well settled that in many instances, a mere clause in the agreement to be insufficient as a sole reason to lead one to the conclusion that “time was to be of essence of the contract”. This submission of Mr. Venugopal was hotly contested by Mr. P.S. Patwalia, learned senior counsel appearing for the respondents. In order to decide this question, it would be relevant for us to look into the clauses in the agreement entered into by the parties because they are of utmost importance. In our view, the High Court has rightly pointed out that there are many instances in the said contract where the fact that time is to be of essence of the contract has been specifically mentioned. Clause 10 of the Agreement of Sale which reads : “Time will be of essence of the contract”, therefore, has been clearly mentioned in the agreement for sale. However, it is well settled proposition of law by now that time is not to be of essence in case of sale of immoveable property. In Chand Rani v. Kamal Rani, AIR 1993 SC 1742, this Court clearly held that in the case of sale of immoveable property, there is no presumption as to time being the essence of the contract.

16. Keeping this principle in mind, we now turn to the clauses of the contract for sale entered into by the parties. Clauses 3 and 5, in our view, of the contract for sale are of no inconsiderable importance. So far as clause 10 of the agreement for sale is concerned, we have already referred to the same earlier. At this juncture, we now reproduce clause 3 of the agreement for sale which reads :

“Payment of the balance amount of Rs. 5, 00,000/- (Rupees 5 lacs only) on or before 6.6.1979 is the essence of the agreement. If the vendees fail to pay the balance amount in time as aforesaid for whatsoever reason, the advance earnest amount paid today shall stand forfeited and the vendees shall have no right whatsoever in the scheduled property and they shall not in any case be entitled to ask for

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refund of the earnest money which by his non-payment of the balance amount as afore-said shall irrevocably stand forfeited.”

17. A reading of this clause, namely, clause 3 of the agreement for sale would clearly show that what was the intention of the parties to make time to be the essence of the contract. If we read clause 3 and clause 10 of the agreement for sale conjointly, it would not be unsafe for us to conclude that the intention of the parties to enter into the agreement for sale incorporating clauses 3 and 10 in the same for the purpose of making the time being the essence of the contract. Mr. Venugopal, however, in support of his contention that “time was not the essence of the contract” strongly relied on a decision of this Court in the case of Swarnam Ramachandram (Smt) & Anr. v. Aravacode Chakungal Jayapalan, (2004) 8 SCC 689, and argued that even if clause 10 clearly stipulates that time was the essence of the contract, then also, in the surrounding circumstances, it can always be held that the agreement must be performed within a reasonable time and time was not the essence of the contract. In our view, this decision of this Court would not be applicable in the facts and circumstances of the present case. It is true that it was conclusively held in the aforesaid decision of this Court on facts that time was not to be of the essence of the contract except in a re-conveyance or renewal of lease, the facts and circumstances of that case were totally different from the one at hand. In the said case, there was a specific proviso to one of the clauses in the contract for sale which clearly stipulates that if payment was not made in time, the appellants who were the vendors could extend such date. Hence, in that decision, this Court in the facts of that case held that time was not to be of essence of the contract which was determined by this Court in the said decision on the intention of the parties as well as the written terms of the agreement. Clauses 3 and 10 of the contract for sale in this case clearly indicate that time was always meant to be of prime importance in the contract. In fact P.W. 1, V.A. Gupta who was examined as a witness for the appellants admitted in his deposition (Annexure P-9) that time was always the essence of the contract and the appellants were aware of this even before entering into the contract. From the contract for sale also, we can very well see that time was repeatedly mentioned to be of prime importance and it was stated quite clearly that under all circumstances, the appellants would have to definitely deposit the balance amount of Rs.5 lakhs by the date stipulated in the contract for sale. Hence, this submission advanced by Mr.Venugopal, that time was not the essence of the contract cannot at all be accepted and, therefore, we reject the same.

18. Next is the question whether the appellants were ready and willing to complete their part of the agreement. It is well settled that in a suit for specific performance of a contract for sale, it has to be proved that the plaintiff who is seeking for a decree for specific performance of the contract for sale must always be ready and willing to complete the terms of the agreement for sale and that he has not abandoned the contract and his intention is to keep the contract subsisting till it is executed. This readiness and willingness on the part of the appellants in the facts and circumstances of the case, in our view, cannot be found in favour of the appellants. In this case, not only the trial Court as well as the High Court on concurrent findings of fact and on consideration of the evidence on record came to the conclusion

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that the appellants were not ready and willing to perform the terms and conditions of the agreement for sale. In view of our discussions made herein above and in order not to execute the agreement for sale on the part of the appellants, it is evident from Exts.P-3, P-5 and P-7 which would show that the appellants sought clarifications regarding the joining of all trustees in execution of the sale deed, asking the second respondent to enter into another agreement by way of indemnifying the appellants for any loss due to defect in the title, etc. We do not find any justification to say in the facts and circumstances of the case that the demands of the appellants were justified and reasonable. On the other hand, this demand on the part of the appellants, in our view, was not only unjustified and unreasonable but it was in fact imaginary as rightly pointed out by the trial Court in its judgment. In order to show that the appellants were all ready and willing to perform their part of their obligation to complete the agreement was to bear the remaining amount of the contract and then agitate the matter for specific performance before the Court. This was also the view expressed by this Court in Chand Rani v. Kamal Rani (supra) wherein this Court held that if the final ultimatum by the seller has been given for payment of balance amount then the best thing for the purchasers is to pay the amount and then take appropriate steps. Therefore, in our view, the appellants having failed to do so, they cannot be allowed to take advantage of their own mistake and conveniently pass the blame to the respondents. In the case of K.S. Vidyanam and Ors. v. Vairavan, (1997) 3 SCC 1, it has been held that in an agreement for sale of immoveable properties, the readiness and willingness of the parties to perform their part of the contract is essential. Hence, we are of the view that the concurrent findings of fact arrived at by the High Court and the trial Court on the question of readiness and willingness to perform their part of obligation, so far as the appellants are concerned, cannot at all be interfered with. Accordingly, we are of the view that the High Court has rightly confirmed the concurrent findings of fact arrived at by the Courts below on the question of readiness and willingness on the part of the appellants to complete the agreement for sale.

19. For the reasons aforesaid, we affirm the judgment of the High Court so far as the suit for specific performance of the contract for sale is concerned. Since no appeal has been filed by the respondent against the order regarding the forfeiture of the amount in question, we need not go into the question whether such forfeiture was proper or not.

20. For the reasons aforesaid, the appeal is allowed to the extent indicated above. There will be no order as to costs.

Appeal partly allowed.

[2009 (3) T.N.C.J. 789 (SC)]SUPREME COURT

BEFORE:TARUN CHATTERJEE AND R.M. LODHA, JJ.

RAMKANYA BAI ...Appellant

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VersusBHARATRAM ...Respondent

[Civil Appeal No. 7018 of 2009 (Arising out of SLP (C) No. 27770 of 2008), decided on 22nd October, 2009]

Hindu Marriage Act, 1955—Sections 13 and 28—Matrimonial dispute—Suit for divorce—Special appeal before High Court for DNA test of the child allowed—Nothing in order to allow such appeal—No allegation by husband that as a consequence of illicit relationship with third person the child was born to the wife—Son of wife begotten from husband not disputed—Application for DNA test of child rejected—High Court to dispose of pending appeal at an early date. (Paras 3, 4, 8, 9 and 10)

Important pointIt was not open to the High Court at the appellate stage to direct the

DNA test to be performed on the child of the wife/appellant. It is also well settled that the presumption of legitimacy is a presumption of law.

JUDGMENT

TARUN CHATTERJEE, J.—Leave granted.2. This appeal is directed against the Judgment and order dated 26 th of

June, 2008 passed by the High Court of Madhya Pradesh at Indore Bench in I.A. No. 803 of 2007, which arose in a pending first appeal, which has been filed against the Judgment and order dated 7th of December, 2006 passed by the Additional District and Session Judge, District Mandsor, Madhya Pradesh. In the impugned order in the pending first appeal, the High Court had directed DNA test of the child of the parties to be performed.

3. The facts leading to the filing of this appeal in this Court are as follows :

The marriage of the wife/appellant was solemnized with the husband/respondent on 20th of April, 1999. But after sometime, the husband/respondent started harassing the wife/appellant on various issues and she was subjected to cruelty and eventually, she was turned out of her matrimonial home. In the year 2004, the husband/respondent filed an application being H.M.A. No. 7(C) of 2004 under Section 13 of the Hindu Marriage Act in the Court of Additional District and Session Judge, District Mandsor, Madhya Pradesh. However, a child was born in the month of November, 2004 to the parties. The parties entered appearance and issues were framed and finally, the trial Court, by its Judgment and decree dated 7th

of December, 2006, dismissed the petition filed by the husband/respondent against which, the husband/respondent had filed an appeal before the High Court of Madhya Pradesh at Indore Bench under Section 28 of the Hindu Marriage Act. As noted hereinearlier, the said appeal is pending decision in the High Court.

4. In the said pending appeal, an application was made by the husband/respondent for an order to perform DNA test of the child born in the month of November, 2004 on the ground that such child could not be taken to be a child born out of the wedlock of the parties. It was the appellant who objected to this application stating inter alia that the child was born from the

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wedlock of the parties and it was also brought to the notice of the High Court that the husband/respondent did not deny the paternity of the child while the suit was pending before the trial Court. The High Court, by the impugned order, allowed the said application of the husband/respondent by making the following observation :

“However, since the appellant has made a prestige issue and it appears to this Court that in case in DNA test if it is found that the son of the Respondent is from the appellant then the family can be re-united.”

5. On a plain reading of the impugned order, it is also evident that the High Court has allowed the prayer of the husband/respondent for performing the DNA test of the child without looking to the facts and circumstances of the present case and without looking into the question of law that may be raised in the matter.

6. Feeling aggrieved by this Order, the wife/appellant has come up to this Court by way of a Special Leave Petition, which on grant of leave, was heard in presence of the learned counsel for the parties.

7. We have heard the learned counsel for the parties and examined the impugned order of the High Court as well as the Judgment of the trial Court, by which the application for grant of divorce filed under Section 13 of the Hindu Marriage Act by the husband/respondent was dismissed.

8. We are unable to accept the impugned order of the High Court. The High Court was not justified in allowing the application for grant of DNA test of the child only on the ground that there will be a possibility of re-union of the parties if such DNA test was made and if it was found from the outcome of the DNA test that the son was born out of the wedlock of the parties. In the absence of any reason except on the ground that the husband/respondent had made a prestige issue about the paternity of the child, nothing could be found from the impugned order of the High Court which could invite the Court to allow such application.

9. On a perusal of the application for grant of an order for DNA test of the child, it would also be evident that there was no allegation made by the husband/respondent that as a consequence of illicit relationship with some third person, the child was born to the wife/appellant. Apart from that, it is an admitted position that during the pendency of the divorce proceedings in trial Court, neither such prayer for performing DNA test to find out the paternity of the child was ever made by the husband/respondent nor any allegation in the plaint was made by him in his pleading. Therefore, it was not open to the High Court at the appellate stage to direct the DNA test to be performed on the child of the wife/appellant. It is also well settled that the presumption of legitimacy is a presumption of law. When a child is born out of a wedlock, there is a presumption in favour of his legitimacy and presumption of legitimacy largely depends on the presumed fact that the parties to a marriage have necessary access to each other when a divorce petition is filed and specially, when the husband/respondent did not assert that the son of the wife/appellant was a consequence of illicit relationship with some third person. The High Court, in the impugned order, has also observed that the son of the wife/appellant has begotten from the husband/respondent, which

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cannot be disputed at this stage on the basis of mere desire of the husband/respondent to deny such paternity of the child.

10. For the reasons aforesaid, the impugned order is set aside and the application of DNA test to be performed on the child of the wife/appellant is hereby rejected. Considering the facts and circumstances of the case, we request the High Court to dispose of the pending appeal at an early date, preferably within six months from the date of supply of a copy of this order to it.

11. The appeal is thus allowed. There will be no order as to costs.Appeal allowed.

[2009 (3) T.N.C.J. 792 (SC)]SUPREME COURT

BEFORE:TARUN CHATTERJEE AND V.S. SIRPURKAR, JJ.

N. RADHAKRISHNAN ...AppellantVersus

M/S. MAESTRO ENGINEERS AND OTHERS ...Respondents[Civil Appeal No. 7019 of 2009 (Arising out of SLP No. 5994 of 2007), decided

on 22nd October, 2009]Arbitration and Conciliation Act, 1996—Section 8—Civil

Procedure Code, 1908—Order 7, Rule 1—Partnership—Retirement of appellant—Existence of original deed and its validity—Allegation of fraud and serious malpractice on part of respondents—Appointment of Arbitrator—Xerox copy of partnership deed filed but not original copy—Mandatory requirement of Section 8 (2) not complied—Court not empowered to refer matter to an Arbitrator—Ist Additional District Judge directed to dispose of suit within six months.

(Paras 3, 4 and 14)Case law.—2003 (6) SCC 503; AIR 1962 SC 406; AIR 1999 SC 2354;

2001 (3) CTC 269—referred.Important point

The Court would not be empowered to refer the matter to an Arbitrator due to the non-compliance of the provisions mentioned under Section 8(2) of the Act.

JUDGMENT

TARUN CHATTERJEE, J.—Leave granted.2. This appeal is directed against the final judgment and order dated,

8th of January, 2007, of the High Court of Judicature at Madras in C.R.P. No 1246 of 2006, whereby the High Court had dismissed the Civil Revision Petition filed by the appellant against the order dated 7th of June, 2006 passed in I.A. No. 494 of 2006 (in O.S. No. 526 of 2006) by the 1st Addl. District Munsif at Coimbatore, wherein the appellant had prayed for appointment of an Arbitrator.

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3. The facts leading to the filing of this appeal which could be derived from the case made out by the appellants are summarized in a nutshell for the better understanding of the dispute at hand:

The appellant had entered into a partnership with the respondents on 7th of April, 2003 to constitute a partnership firm for the purpose of carrying on the business of Engineering Works under the name and style of “Maestro Engineers”. The abovementioned firm had initially commenced its functioning from the premises situated at 41, KPR Lay Out 5th Street, Nanda Nagar Singanallur, Coimbatore-5, (in short the “suit premises”), which belonged to the father of the appellant. The appellant took active part in setting up the firm and was instrumental for the construction of the same. Differences started creeping up between the appellant and the respondents and the appellant sent a notice dated 3rd of November, 2005, to the respondents, being dissatisfied with their conduct. The appellant had asserted in the notice that the firm was set up by a partnership deed dated 7th of April, 2003 and that he and the respondent No. 3 had initially invested a sum of Rs.2,70,000/-, each for the capital investment of the firm but in the partnership deed it was only mentioned as Rs.1,00,000/- against the name of the appellant. He had further asserted malpractices happening inside the firm, which were supported by the respondents. There were also allegations of collusion amongst the respondents for driving out the clients of the appellant and forging the accounts of the firm. The appellant also offered his retirement from the firm and asked for his share of the salary and the profits incurred by the firm. In response to the notice sent by the appellant, the respondents sent a reply dated 11th of November, 2003, wherein they admitted the factum of the partnership entered into by them with the appellant but allegedly denied the claim of the appellant that he had invested a sum of Rs.2,70,000/- towards the establishment of the firm.

In response to the reply sent by the respondents, the appellant sent a notice dated 1st of December, 2005, wherein he again reiterated his stand that he had invested a sum of Rs.2,70,000/- for the establishment of the firm and not an amount of Rs.2,50,000/- as was alleged by the respondents in their reply.

The appellant, thereafter, sent another notice dated 24th of February, 2006, to the respondents stating that the respondents were responsible for the problems created by the parties and it was their responsibility to resolve the disputes amicably between them. It was alleged that the respondents had colluded themselves in order to siphon of the money of the partnership firm for their personal gain. In the notice dated 3rd of November, 2005, the appellant had reiterated that he was ready to retire from the firm if the share of profits and arrears of salary due to him and the interest thereon was given to him. He had further called upon the respondents to settle the arrears of amount within 15 days and to make arrangements for his retirement failing which he had put them on notice to refer the matter to arbitration. The respondents subsequently filed a suit being O.S. No. 526 of 2006, under Order 7, Rule 1 of CPC before the Court of the District Munsif of Coimbatore for a declaration that the appellant is not a partner of the Respondent No. 1 (the firm herein) after 18th of November, 2005, and to prevent him from causing any disturbance to the respondent No. 1 for its peaceful running by

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way of a permanent injunction. The appellant thereafter filed an application under Section 8 of the Arbitration Act, 1996, (hereinafter referred to as the “Act”) being I.A.No.494 of 2006 in the Court of the District Munsif at Coimbatore on 12th of March, 2006, which was rejected by his order dated 7th of June, 2006. Feeling aggrieved by the aforesaid order, the appellant filed a civil revision case being C.R.P. (PD) No. 1246 of 2006 along with a petition for stay being M.P. No. 1 of 2006 in the High Court of Judicature at Madras. The High Court by its order dated 8th of January, 2007, affirmed the aforesaid order of the District Munsif at Coimbatore and dismissed the civil revision petition and also the petition for stay filed by the appellant. It is against this order of the High Court in respect of which the instant special leave petition was filed by the appellant, which on grant of leave was heard by us in the presence of the learned counsel for the parties.

4. We have heard the learned counsel appearing for the parties and perused the materials on record. The learned counsel appearing for the appellant at the first instance contended that the dispute was relatable to the factum of retirement of the appellant from the partnership firm and its reconstitution after the respondents had created a new partnership deed to that effect without the appellant being a part of it, was unfair and not proper. It was his contention that the appellant had only made a conditional offer to retire from the firm provided his dues were settled and the respondents had grossly made a willful error in considering his offer as a final one and, therefore, committed a grave error by reconstituting the partnership firm after taking the appellant to have retired from the same. The learned counsel appearing for the respondents on the other hand contended that the offer of the appellant to retire from the firm was an unequivocal one and the same was accepted by the respondents after a meeting amongst themselves, thus under the provisions of the Indian Contract Act, this was a binding contract amongst the parties and the respondent could not deny the same. Moreover, the learned counsel for the respondents argued that they had sent a notice to the effect to the appellant stating that his offer to retire from the firm was accepted by them and his dues would be settled accordingly within 15 days from the receipt of the notice dated 3rd of March, 2005 sent by the appellant intimating about his retirement. Therefore, the appellant had prior knowledge of the fact that the respondents had accepted his notice offering to retire and they were acting upon the same. The appellant on the other hand contended that the respondents had only claimed to act which in reality they did not, and no cooperation was provided to the appellant when he had approached the Auditor of the respondents to inspect his accounts. We are not in a position to determine the veracity of the statements of either parties. The main issues which need to be determined is whether the case falls within the jurisdiction of the Arbitrator, and if it does, whether the procedural requirements under Section 8 (2) of the Act had been complied with to the satisfaction of the Court.

5. The learned counsel for the respondents further argued that the subject-matter of the suit being O.S. No. 526 of 2006 was a different one and it was not within the ambit of the arbitration clause of the partnership deed dated 7th of April, 2003 and that the partnership deed had ceased to exist

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after the firm was reconstituted due to the alleged retirement of the appellant. Therefore, the trial Court was justified in not referring the matter to the Arbitrator. The appellant had on the other hand contended that the subject-matter of the suit was within the ambit of the arbitration clause since according to him the dispute related to his retirement and the settlement of his dues after he was deemed to have retired according to the respondents. Further, it was his contention that the partnership deed dated 6th of December, 2005 was not a valid one as it was not framed in compliance with the requirements under the Partnership Act. Therefore, the argument of the respondents that the subject-matter of the suit did not fall within the ambit of the arbitration clause of the original partnership deed dated 7th of April, 2003, cannot be sustained. We are in agreement with the contention of the appellant to this effect. It is clear from a perusal of the documents that there was a clear dispute regarding the reconstitution of the partnership firm and the subsequent deed framed to that effect. The dispute was relating to the con-tinuation of the appellant as a partner of the firm, and especially when the respondents prayed for a declaration to the effect that the appellant had ceased to be a partner of the firm after his retirement, there is no doubt in our mind that the dispute squarely fell within the purview of the arbitration clause of the partnership deed dated 7th of April, 2003. Therefore, the Arbitrator was competent to decide the matter relating to the existence of the original deed and its validity to that effect. Thus, the contention that the subject-matter of the suit before the 1st Addl. District Munsif Court at Coimbatore was beyond the purview of the arbitration clause, cannot be accepted. Having found that the subject-matter of the suit was within the jurisdiction of the Arbitrator, we now proceed to decide whether the Arbitrator was competent to deal with the dispute raised by the parties. The learned counsel for the appellant contended that the High Court was wrong in its interpretation of the clause “difference of opinion” and held that it did not mean dispute under the Act. This, in our view, cannot be sustained. Difference of opinion leads to dispute, and it is very difficult to imagine that difference of opinion and disputes are an altogether different thing in the circumstances leading to this case.

6. The appellant had cited a catena of judicial pronouncements to contend that when there is an express provision to that effect, the Civil Courts are bound to refer the matter to an Arbitrator in case of any disputes arising between the parties. The appellant had raised various issues relating to misappropriation of funds and malpractices on the part of the respondents and the allegations to that effect have been made in the notice sent to the respondents and subsequently in its written statement filed before the Civil Court. The learned counsel for the respondents on the other hand argued that when a case involves substantial questions relating to facts where detailed material evidence (both documentary and oral) needed to be produced by either parties, and serious allegations pertaining to fraud and malpractices were raised, then the matter must be tried in Court and the Arbitrator could not be competent to deal with such matters which involved an elaborate production of evidence to establish the claims relating to fraud and criminal misappropriation.

7. In our opinion, the contention of the respondents relating to the jurisdiction of the Arbitrator to decide a dispute pertaining to a matter of this

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proportion should be upheld, in view of the facts and circumstances of the case. The High Court in its impugned judgment has rightly held that since the case relates to allegations of fraud and serious malpractices on the part of the respondents, such a situation can only be settled in Court through furtherance of detailed evidence by either parties and such a situation can not be properly gone into by the Arbitrator.

8. Reliance was placed by the learned counsel for the appellant on a decision of this Court in the case of Hindustan Petroleum Corpn. Ltd. v. Pinkcity Midway Petroleums, 2003 (6) SCC 503, wherein this Court in Para 14 observed:

“If in an agreement between the parties before the Civil Court, there is a clause for arbitration, it is mandatory for the Civil Court to refer the dispute to an arbitrator. In the instant case the existence of an arbitral clause in the Agreement is accepted by both the parties as also by the Courts below. Therefore, in view of the mandatory language of Section 8 of the Act, the Courts below ought to have referred the dispute to arbitration.”

9. The learned counsel for the appellant relying on the above-mentioned observations of this Court in the aforesaid judgment submitted that the High Court was wrong in ignoring the ratio of the case and should have accordingly allowed the petition of the appellant for setting aside the order of the trial Court.

10. The learned counsel appearing on behalf of the respondents on the other hand contended that the appellant had made serious allegations against the respondent alleging that they had manipulated the accounts and defrauded the appellant by cheating the appellant of his dues, thereby warning the respondents with serious criminal action against them for the alleged commission of criminal offences. In this connection, reliance was placed in a decision of this Court in the case of Abdul Kadir Shamsuddin Bubere v. Madhav Prabhakar Oak and another, AIR 1962 SC 406, in which this Court under para 17 held as under:

“There is no doubt that where serious allegations of fraud are made against a party and the party who is charged with fraud desires that the matter should be tried in open Court, that would be a sufficient cause for the Court not to order an arbitration agreement to be filed and not to make the reference.......”

11. In our view and relying on the aforesaid observations of this Court in the aforesaid decision and going by the ratio of the above mentioned case, the facts of the present case does not warrant the matter to be tried and decided by the Arbitrator, rather for the furtherance of justice, it should be tried in a Court of law which would be more competent and have the means to decide such a complicated matter involving various questions and issues raised in the present dispute. This view has been further enunciated and affirmed by this Court in the decision of Haryana Telecom Ltd. v. Sterlite Industries (India) Ltd., AIR 1999 SC 2354, wherein this Court under para 4 observed :

“Sub-section (1) of Section 8 provides that where the judicial authority before whom an action is brought in a matter, will refer the parties to

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arbitration the said matter in accordance with the arbitration agree-ment. This, however, postulates, in our opinion, that what can be referred to the Arbitrator is only that dispute or matter which the Arbitrator is competent or empowered to decide.”

12. The learned counsel for the respondent further elaborated his contention citing the decision of the High Court of Judicature at Madras in the case of Oomor Sait HG v. Asiam Sait, 2001 (3) CTC 269, wherein it was held:

“......Power of Civil Court to refuse to stay of suit in view of arbitration clause on existence of certain grounds available under 1940 Act continues to be available under 1996 Act as well and the Civil Court is not prevented from proceeding with the suit despite an arbitration clause if dispute involves serious questions of law or complicated questions of fact adjudication of which would depend upon detailed oral and documentary evidence...Civil Court can refuse to refer matter to arbitration if complicated question of fact or law is involved or where allegation of fraud is made.....Allegations regarding clandestine operation of business under some other name, issue of bogus bills, manipulation of accounts, carrying on similar business without consent of other partner are serious allegations of fraud, misrepresentations etc., and therefore, applica-tion for reference to Arbitrator is liable to be rejected.”

13. We are in consonance with the above-referred decision made by the High Court in the concerned matter. In the present dispute faced by us, the appellant had made serious allegations against the respondents alleging him to commit malpractices in the account books and manipulate the finances of the partnership firm, which, in our opinion, cannot be properly dealt with by the Arbitrator. As such, the High Court was justified in dismissing the petition of the appellant to refer the matter to an Arbitrator. In this connection, it is relevant to refer the observation made by the High Court in its impugned judgment :

“The above decision squarely applies to the facts of the present case. In the present case as well there is allegation of running rival firm, interference with the smooth administration of the firm. As already stated since the suit has been filed for declaration to declare that the revision petitioner is not a partner with effect from 18.11.2005, and for consequential injunction restraining the petitioner from disturbing the smooth functioning of the first respondent firm, the issue relates to the causes which compelled the respondents to expel the revision petitioner from the partnership firm and the necessity to reconstitute the firm by entering into a fresh partnership deed. Therefore, such issues involve detailed evidence which could be done only by a Civil Court......”

14. Arguments were favoured by either parties relating to the ambit of Section 8 (2) of the Act wherein the scope of the mandatory requirement to file the original copy of the partnership deed dated 7th of April, 2003 was elaborately discussed. It is to be noted that since we have already decided that there is no requirement to appoint an Arbitrator in view of the matter that the issues involved in the case involved detailed investigations into the same and production of elaborate evidence to prove the allegations or refute

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the same, there is no need to dwell into this matter. Even assuming that a dispute subsists and an Arbitrator is appointed, still the appellant cannot absolve himself from the mandatory requirement of filing an original copy of the deed. The learned counsel for the appellant, however, argued that since the notarized copy of the deed was already filed by the respondents before the 1st Addl. District Munsif Court at Coimbatore, there was no need for the appellant to produce the same. Learned counsel for the appellant cited various decisions to substantiate his claim. But from a careful perusal of the order of the 1st Addl. District Munsif Court at Coimbatore, in I.A. No. 494 of 2006 (in O.S. No. 526 of 2006) it would be evident that the learned Munsif had noted that the appellant had filed a Xerox copy of the partnership deed dated 7th of April, 2003 and had not filed the original copy thereof. Further, Ex-P23 is the notarized copy of the Partnership deed dated 6th of December, 2005, which was the reconstituted deed formed after the alleged retirement of the appellant from the firm. The learned counsel for the appellant pointed out to this deed and argued that since the original copy of this deed was filed by the respondents, there was no need for him to file the original copy thereof under Section 8 (2) of the Act. But it is to be noted herein that the claim of the appellant regarding the dispute was under the arbitration clause mentioned under the original partnership deed and not on the subsequent one. Since the original deed was not filed within the requirement of Section 8(2) of the Act, it must be held that the mandatory requirement under the Act had not been complied with. Accordingly, even if we accept the factum of a dispute relating to the retirement of the appellant under the original deed dated 7th of April, 2003, still the Court would not be empowered to refer the matter to an Arbitrator due to the non-compliance of the provisions mentioned under Section 8(2) of the Act. For the above-mentioned reasons and in view of our discussions made hereinabove, we, therefore, do not find any merit in this appeal and we direct the 1st Addl. District Munsif at Coimbatore to dispose of the suit being O.S.No.526 of 2006 filed by the respondents for a declaration that the appellant was not a partner of the Respondent No. 1 (the firm herein) after 18th of November, 2005 and to prevent him from causing any disturbance to the respondent No. 1 for its peaceful running by way of a permanent injunction within a period of six months from the date of receipt of a copy of this judgment.

15. It will be open to the parties to adduce evidence (both documentary and oral) to prove their respective claims relating to the contentions of fraud and the retirement of the appellant in consonance with the original partnership agreement.

16. The appeal is thus, dismissed. There will be no order as to costs.

Appeal dismissed.

[2009 (3) T.N.C.J. 799 (SC)]

SUPREME COURT

BEFORE:

TARUN CHATTERJEE AND V.S. SIRPURKAR, JJ.

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HARYANA STATE INDUSTRIAL DEV. CORP. ...Appellant

Versus

SHAKUNTLA AND OTHERS ...Respondents

[Civil Appeal No. 7020 of 2009 (Arising out of SLP No. 7099 of 2007 with Civil Appeal No. 7021 of 2009 (Arising out of SLP No. 7187 of 2007 etc., decided

on 22nd October, 2009]Land Acquisition Act, 1894—Sections 4, 5 and 6—Punjab

Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963—Section 3—Acquisition of land—For development of a corporate com-plex for industrial, institutional, commercial and recreational purposes—Release of land from acquisition to land owners—Since policy of pick and choose adopted order of High Court for release of land on certain conditions—Order of High Court affirmed with modified conditions.

(Paras 5, 6 and 17)Case law.—2005 (9) SCC 164; 2005 (5) SCC 437; 2005 (11) SCC 222;—

referred.Important point

There is no law in force that categorically limits the area to which a green belt may be extended, and this means that it is a need based decision on the part of the authority though it has to be within reasonable bounds.

JUDGMENT

TARUN CHATTERJEE, J.—Delay condoned.2. Leave granted.3. These appeals by special leave have arisen from a judgment dated

14th of December, 2006 of a Division Bench of the High Court of Punjab and Haryana at Chandigarh passed in C.W.P. No. 2479/2006 whereby the High Court had set aside the Notifications dated 11th of November, 2002 and 12th of November, 2003 issued under Sections 4 and 6 of the Land Acquisition Act, 1894, (in short ‘the Act’) respectively so far as the acquired lands of the claimant-respondents are concerned, subject to certain conditions to be fulfilled by them.

4. The facts in appeal arising out of S.L.P. No. 7099/2007 are sufficient to decide the questions of law that have arisen in these appeals. In that view of the matter, let us narrate the facts involved in S.L.P. No.7099 of 2007 in a nutshell and the decision of which will also govern the other Special Leave Petitions (Appeals).

5. On 15th of November, 2002, a notification under Section 4 of the Act was issued by the State Government of Haryana for the purpose of acquisition of lands situated in Village Khandsa, Tehsil and District Gurgaon for the purpose of development of a corporate complex for industrial, institutional, commercial and recreational purposes. The respondent No.1, being one of the owners of the notified acquired lands, filed objections under Section 5 of the Act, for exclusion of their lands. The Haryana Government, later on, that is on 12th of November, 2003 issued a Notification under Section 6 of the Act, in respect of the aforementioned lands declaring that the lands notified were needed by the Government for a public purpose.

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6. On 16th of July, 2005, the High Court of Punjab and Haryana at Chandigarh disposed of the petitions filed by respondent No.1 and others, directing that the grievances of the land owners be considered by a High Powered Committee, constituted to look into whether the lands of the owners concerned could be released from acquisition. The High Powered Committee submitted its consolidated report containing its observations and recommen-dations to the State Government on 10th of November, 2005. The Committee recommended the acquisition of the lands of respondent No.1 on the basis of the parameters of evaluation formulated for the same purpose. On the basis of the same parameters, some other lands were released, land belonging to M/s. Orient Crafts being one such plot. The recommendations of the Committee were to be applicable to all such cases pending before the High Court and they would not be disturbed till further orders of the Government. Aggrieved by the recommendations of the High Powered Committee, respondent No.1 filed a writ petition before the High Court of Punjab and Haryana contending that the said report was liable to be quashed as the policy of pick and choose was adopted in the matter of releasing lands and that the acquisition of lands was discriminatory. The High Court concluded that the case of respondent No.1 was on a better footing than that of M/s Orient Crafts since a perusal of the site plan shows that the land of M/s. Orient Crafts which is similarly placed with the land of the respondent No.1, does not contain any structure unlike that of the land of the respondent No.1 containing a pucca structure. Moreover, no nullah flows through the land of M/s. Orient Crafts as averred by the appellant Corporation. As such, the land of M/s. Orient Crafts was held to be wrongly released from acquisition amounting to discrimination against respondent No.1. Accordingly, the High Court ordered the release of the land belonging to respondent No.1 on the following grounds:

(i) That they will maintain the green belt as desired by the Department which is essentially required to lay the infrastructure.

(ii) That they would pay the proportionate internal and external charges to the Haryana State Industrial Development Corporation (in short the ‘HSIDC’) as and when it is required by the authorities.

7. Before us, the learned counsel for the appellants argued, at the first instance, that since a High Powered Committee having been appointed to examine the cases of land acquisition had recommended the acquisition of the lands of the respondents, the decision of the High Court to quash the particular acquisition was fallacious. The High Powered Committee had adopted certain guiding principles for ascertaining the status of the land notified for acquisition, the first three conditions being;-

I. The land for which CLU (change of land use) has been obtained and the Industrial unit is under construction/constructed or running, not to be acquired; but if the CLU obtained but no construction initiated and duration of sanction had expired before the issue of notification under Section 4, shall not be considered as a case of CLU obtained, keeping in view the provisions of the Punjab Scheduled Roads and Controlled Areas Restrictions of Unregulated Development Rules, 1965 (Rule 26-F).

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II. The Industrial units constructed without permission, if fit in the overall planning and do not interfere in the road network, will be adjusted as these are subject to the condition that the Town and Country Planning Department has not filed prosecution case in the Court of Law for the violations, and shall give an undertaking to the Committee that they will apply to the Director, Town and Country Planning for compounding the offences and shall pay all the charges/ fees to the Government as per policy of the Department of Town and Country Planning Haryana.

III. To ensure continuity of the Industrial Estate, land under acquisi-tion, which is essential for integrated planning, shall not be released. These guidelines and parameters for evaluation of the merits of each case were approved by the Government of Haryana and Punjab and were subsequently notified through the newspaper ‘The Tribune’ and were also made available in the website of HSIDC.

8. The land belonging to the respondent had houses and shops built prior to the notification issued under Section 4 of the Act. However, this does not amount to fulfilment of the conditions necessary for release of the land under the criteria laid down in the abovementioned parameters and as such, this particular and was rightly recommended for acquisition. On the other hand, the land belonging to M/s. Orient Craft was recommended for release by the High Powered Committee on grounds which were beyond the scope of the criteria applied under the parameters approved by the Government. Moreover, as rightly pointed out by the High Court, the observation of the Committee regarding a seasonal nullah passing through the lands of M/s. Orient Craft are contrary to the actual facts. Consideration of this observation in releasing the land of M/s. Orient Craft betrays an element of either partiality or insincerity on the part of the Committee. Though, no construction was raised on the land of M/s. Orient Craft, the State of Haryana sought an affidavit from the General Manager of M/s. Orient Craft before releasing their land. In the affidavit filed by the Senior General Manager of M/s. Orient Craft, it was averred that they would leave the land as desired by the HSIDC which is essentially required to lay the infrastructure. Moreover, it was averred that they would also pay the proportionate external and internal developmental charges to the HSIDC. Consequent to the submission of this affidavit, the Director of Industry & Commerce, Haryana, released the land belonging to M/s. Orient Craft. This procedure of release of the land notified for acquisition clearly does not conform to the guidelines that were formulated and approved at the first place.

9. It appears that the release of the land of M/s. Orient Craft would not frustrate the whole object of acquisition for expansion of the industrial estate since the undertaking of M/s. Orient Craft to release land as desired by the HSIDC amounts to fulfilment of the lands needed by the HSIDC in that area. However, the manner in which it was released and the grounds that were relied on for its release are fraught with defects that raise doubts regarding the impartiality and sincerity of the authority. The appellant corporation has sought to justify the decision of the High Powered Committee to release that particular land by referring to a judgment of this Court in the case of Anand

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Buttons v. State of Haryana and others, (2005) 9 SCC 164, wherein this Court observed:

“...reasoning of the High Court cannot be faulted for the simple reason that the authority, who has to carry out the planned development of the industrial estate, is in the best position to judge as to which land can be exempted from the acquisition without jeopardizing the development scheme. It is not possible for the Court to sit in appeal over the exercise of such satisfaction by the authority vested with the task of implementing the development plan.”

Thus, the validity of the decision of the concerned authority was upheld on the ground that it has to carry out the planned development of the industrial estate and so it is in the best position to judge as to which land can be exempted from acquisition without jeopardising the development scheme. As such, it was rightly held by this Court in Anand Buttons’s case (supra) that it is not possible for the Court to sit in appeal over the exercise of such satisfaction by the authority vested with the task of implementing the development plan.

10. The task of such authority is no doubt to ensure the smooth execution of the development plans and since they have a firsthand knowledge of the ground realities, they are surely at a better position than anyone else to decide as to which land is to be acquired and which is to be released. But when there has been a guideline laid down for the same task and it has been approved and notified, the issue becomes a matter of policy which the authority has to follow with a reasonable amount of uniformity. In the given facts of the case, the respondents have alleged discrimination thereby attracting Article 14 of the Constitution of India. As held in the case of Union of India v. International Trading Co., (2003) 5 SCC 437, Article 14 applies to matters of Government policy and such policy or action would be unconstitutional if it fails to satisfy the test of reasonableness. This Court observed :

“...It is law that Article 14 of the Constitution applies also to matters of Governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give impression that it was so done arbitrarily on by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heart beat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for discernible reasons, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given

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case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness. Where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in different manner which does not disclose any discernible principle which is reasonable itself shall be labelled as arbitrary. Every State action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary.”

The discretion to change a policy in exercise of the executive power, which appears to be the case in the present matter, must be exercised fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. It has been observed by this Court, as noted herein above, that a question whether the impugned action is arbitrary or not, is to be ultimately answered on the facts and circumstances of the given case. It was rightly held that where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in a different manner which does not disclose any discernible principle which is reasonable itself shall be labelled as arbitrary.

11. Thus, in the given facts of the case, the action of the Committee in releasing the lands of M/s Orient Craft would not be arbitrary in so far as it has deviated from the procedure laid down in the form of guidelines approved for the same purpose, provided a principle discerned from the deviation is within the bounds of the reasonableness test. From a perusal of the facts of the case, it is clear that the release of the land of M/s. Orient Craft may be said to be based on the logic that as the undertaking of M/s. Orient Craft to release their land as desired by the department had fulfilled the lands needed by the HSIDC, so the deviation in releasing the same has a justifiable reason. So, we may safely say that such deviation from the procedural guidelines is not unjustified in the present situation. This leads us to the question as to why such a reasonable principle was not applied in the case of the lands of the respondent, though the same were contiguous and adjoining the lands of M/s. Orient Craft and thereby releasing the land of the respondent also.

12. As the deviation from the guidelines in releasing the land of M/s. Orient Craft has been found to be not wrongful, there is no question of committing two wrongs by applying the same yardstick to release the lands of the respondents. As such, we do not find anything wrong in the decision of the High Court to release the lands of the respondents from acquisition.

13. Thus, let us now consider the question raised by the respondents regarding the validity of the conditions laid down by the High Court for release of their lands. As noted herein earlier, the High Court had laid down the following conditions for the release from acquisition of the lands of the respondents :

(i) That they will maintain the green belt as desired by the Department which is essentially required to lay the infrastructure.

(ii) That they would pay the proportionate internal and external charges to the HSIDC as and when it is required by the authorities.

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It is obvious that these conditions laid down are very similar to the undertaking of M/s. Orient Craft which was filed in the form of an affidavit as mentioned earlier. At the risk of repetition, we would like to mention the two conditions mentioned in the undertaking of M/s Orient Craft viz.:

(i) That they would leave the land as desired by the department which is essentially required to lay the infrastructure.

(ii) That they would also pay the proportionate external and internal development charges to the HSIDC as and when assessed and demanded.

Thus, the intention of the High Court is clearly to bring parity in the status of the lands of the respondents vis-a-vis that of M/s. Orient Craft. This is justifiable since the same principle has been applied that is discernible from the act of release from acquisition of the land of M/s. Orient Craft, as has already been observed.

14. However, the respondents have argued against the validity of the condition to maintain a green belt on their land up to 50 metres on two grounds. First, they relied on a judgment of this Court in the case of Raju S. Jethmalani v. State of Maharastra, (2005) 11 SCC 222, wherein it was held that the burden to make available green area cannot be put on the citizens. Secondly, it was argued that the condition of maintaining 50 metres green belt is not supported by any law in force, and also that even under Section 3 of the Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963, there is no condition of maintaining green belt.

15. Before taking up the first point, we would like to clarify one thing about the second point. It is true that Section 3 of the Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963 does not explicitly require the maintenance of 50 metres green belt. However, one must take into consideration the fact that the Corporation had been appointed as a nodal agency by the State Government for rapid industrialisation of the State and so it had to carry out the planned develop-ment of the industrial estates. The needs of industrialisation and economic development are so dynamic that it is not possible to limit these needs by certain legislative provision. These needs will change according to the growing economic demands. In the present case in hand, the need for rapid indus-trialization of the State was recognised by the State Government and accordingly notifications were issued by it under Sections 4 and 6 of the Act, which was clearly done according to the applicable rules and procedures. Moreover, there is no law in force that categorically limits the area to which a green belt may be extended, and this means that it is a need based decision on the part of the authority though it has to be within reasonable bounds. So the mere fact that Section 3 of the Punjab Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963 does not explicitly require the maintenance of 50 metres green belt, cannot be allowed to frustrate the attempt to meet the ever increasing economic needs of rapid industrialisation. In this regard, we may once again look back to the judgment in Anand Button’s case (supra) and conclude that since the nodal agency is in the best position to decide how much is needed for the maintenance of 50

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metres green belt, there is nothing wrong in requiring the same in the given case.

16. As far as the judgment in the case of Raju S. Jethmalani (supra) is concerned, we need to see whether the facts in that case are similar to the facts in the present case. In Raju S. Jethmalani, this Court held that no burden can be placed on private citizens to provide suitable area in the locality for using the same as garden or park. This Court observed :

“...We fail to understand how can the burden be placed on the appellants that they should provide suitable area in the present locality for using the same as garden or park. Rather, the burden should have been placed on the Municipal Corporation or the State Government instead of putting it on the appellants that they must provide some space for garden and park. This direction, in our opinion, appears to be wholly misconceived and we set aside the impugned order of the Division Bench...”

In view of the above, therefore, the burden should have been placed on the Municipal Corporation or the State Government and not on the individuals. This appears to render the judgment of the High Court in the present case fallacious as far as the conditions imposing maintenance of a green belt on the respondents is concerned. However in the present case, the purpose is very different from that in Raju S. Jethmalani’s case and also the applicable Acts are different. So the need is to check whether the two situations are in pari materia or not. We have to take into account the observations of this Court in Raju S. Jethmalani’s case (supra) that a development plan can be prepared of a land comprising of a private person but that plan cannot be implemented till the land belonging to the private person is acquired by the Planning Authority. Accordingly in Raju S. Jethmalani’s case (supra), the decision of the High Court to impose burden on private individuals to provide suitable area for park was found to be faulty because of the fact that the Municipal Corporation had failed to acquire the land for the said purpose even though it was planned so initially. It is beyond any doubt that in the present case, the HSIDC is ready to acquire the land of the private persons i.e., the respondents, and so we fail to relate the situation in Raju S. Jethmalani with that of the present case. Moreover, we cannot frustrate the overall purpose of the Act by relying on a judgment that relates to a matter under the Maharashtra Regional and Town Planning Act, 1966. Thus, we need not be bound by the decision in Raju S. Jethmalani’s case (supra) as far as the burdening of a private person to provide land for public utility is concerned. However, so far as the question of maintaining a green belt imposed by the High Court in the impugned order is concerned, we are not in a position to agree with such directions of the High Court.

17. Leaving the land for the HSIDC to develop a green belt is different from that of requiring the private person to maintain the green belt since that will be an unnecessary burden on that person. Since we have sought to rely on the averment made by M/s. Orient Craft in order to bring parity between the status of the lands of the respondents and M/s. Orient Craft, we believe that the same criteria should be applied in releasing these lands from acquisition. The most important issue is that the process of development and industrialisation as planned and approved by the Legislature should not meet

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a dead end because of a small stretch of land. As such, the land of the respondents shall be released from acquisition as was the case with M/s. Orient Craft, but the same shall be done on same grounds as was applied for the land of M/s. Orient Craft. Accordingly, affirming the judgment of the High Court, we only modify the conditions for fulfilment on the part of the respondents so that their land is released from acquisition. These are:

(i) They will release the land which is needed by the HSIDC for maintaining the green belt, undisturbed and such land shall be not more than the 50 metres prescribed for the Green Belt.

(ii) They will pay the proportionate external and internal charges to the HSIDC as and when it is required by the authorities.

18. Apart from the modifications that we have made in the conditions imposed by the High Court in the impugned judgment as mentioned above, we do not find any merit in these appeals.

19. For the reasons aforesaid, the appeals are disposed of with the aforesaid modification of the impugned judgment of the High Court. There will be no order as to the costs.

Appeal disposed of.

[2009 (3) T.N.C.J. 808 (Mad)]

MADRAS HIGH COURT

BEFORE:

K.K. SASIDHARAN, J.

G.M. PENS INTERNATIONAL LIMITED ...Petitioner

Versus

RAMESH KUMAR JAIN AND OTHERS ...Respondents

[C.R.P. (PD) Nos. 3722 and 3723 of 2008 and M.P. Nos. 1 and 2 of 2008, decided on 25th August, 2009]

Civil Procedure Code, 1908—Order 11, Rules 1 and 12—Piracy—Respondents 1 to 4 sought interrogatories from the revision petitioner—Allowed by District Judge—Challenge by revision petitioner—Nothing indicated in order that how it will help respondents to prove their case—Trial Judge bound to consider implication of interrogatories in light of pleadings—Issue to be considered by trial Judge afresh—Order of trial Judge set aside—Matter remitted to trial Judge for fresh consideration.

(Paras 8, 12 and 20 to 23)

Counsel.—Mr. A.A. Mohan, for the petitioner; Mr. K. Shakespeare, for the respondents 1 to 4; No appearance, for the respondent No. 5.

Important pointThe delivery of interrogatories cannot be made to cause prejudice to the

opposite party.JUDGMENT

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K.K. SASIDHARAN, J.—These two civil revision petitions are at the instance of the plaintiff in O.S.No.3 of 2002 on the file of the Principal District Judge, Puducherry and the challenge is to the order passed by the learned trial Judge allowing the applications filed by respondents 1 to 4 invoking Order 11, Rules 1 and 12 of the Code of Civil Procedure.

2. The suit in O.S.No.3 of 2002 was filed by the revision petitioner before the District Judge, Puducherry praying for a judgment and decree to restrain the respondents, their agents, and men from committing piracy of their registered design bearing No.186574 in respect of the shape and configuration of the pens by manufacturing, selling, distributing Bitco Finger Pens which is an imitation of the get up and trade dress of plaintiff’s 045 Smartgrip Pens in any manner whatsoever and for other consequential reliefs.

3. In the plaint in O.S.No.3 of 2002, the revision petitioner as plaintiff contended thus:

(a) The plaintiff has a technical know-how agreement with Reynolds formerly known as M/s. Reynolds S.A., France. The plaintiff is an exclusive licensee in India to use the trademark “Reynolds”. The trademark enjoys an extensive international reputation, which has spilled over into India. The plaintiff has introduced in September, 2001 a new model “045 Renolds Smartgrip”and the said pen is unique in its design, shape and configuration.

(b) The plaintiff has also applied for and obtained design registra-tion for the entire pen as per registration No.186574. By virtue of the distinctive design, shape and configuration the plaintiff’s “045 Renolds Smartgrip” has acquired enormous reputation within a short span of time. The trade and public have come to associate the distinctively shaped “045 Renolds Smartgrip” pens with the pens manufactured and sold by the plaintiff.

(c) The plaintiff became aware in May, 2002 about the similarly shaped and designed pens being sold at Puducherry. Necessary enquiry was conducted and it was made known that the first defendant is the distributor selling on a comm-ercial scale within the city of Puducherry, pens manufactured by the fifth defendant. Defendants 2 to 4 are the partners of the fifth defendant concern. The investigation further revealed that the defendants pen are sold commercially on an extensive scale in the city of Puducherry.

(d) The defendants have adopted an identical design as that of the plaintiff in respect of their pen “Bitco Finger”. The only point of differentiation is that they have used their own name in respect of the pens but have copied every other feature of the plaintiff’s “045 Renolds Smartgrip” in its entirety. Since the illegal activities of the defendants are causing and are likely to cause irreparable damage to the sales, reputation and goodwill of the plaintiff, the defendants were called upon to cease and desist from manufacturing, selling, distributing, advertising any pen, which is an imitation of plaintiff’s “045 Renolds Smartgrip” with

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design registration No.186574. However the defendants failed to comply with the requisitions which made the plaintiff to file the suit for permanent injunction.

4. The suit was contested by the respondents, being defendants. In the written statement filed by the fifth respondent, being first defendant, it was their contention that they were not the distributors of pens on a commercial scale in the city of Puducherry. According to the first defendant their business is in buying and selling books, guides and other stationery items. In short, the first defendant specifically denied that they were engaged as distributors of defendants 1 to 4 at any point of time.

5. The fourth respondent/fifth defendant filed a detailed written state-ment wherein they have denied the entire allegations and averments as contained in the plaint. According to the fifth defendant they are not manufacturing pens including the impugned design pens and they were only engaged in marketing pens. The fifth defendant specifically denied that they have sold pens at any point of time which are similar to that of the plaintiff. They have been marketing their pens displaying prominently the trade name “Bitco”, which is not in any way similar to that of the plaintiff. The design and the get up are all totally different. They have been doing this business for the past twenty five years and they do not have any retail commercial sale as they were doing only wholesale trade. The fifth defendant also denied that the first defendant was their distributor at Puducherry, as according to them there was no business relation between them. In the written statement as well as in the rejoinder filed, the fifth defendant also indicated that the suit was a collusive one between the petitioner and the first defendant.

6. The petitioner has also filed an application in I.A.No.19 of 2002 for issuance of an advocate commission ex parte along with the suit. The said application was allowed and an advocate Commissioner was appointed. The advocate Commissioner inspected the premises of the fifth respondent and seized 55 pouches of Bitco Finger ball pens, each pouch containing ten pieces and those seized pens were handed over to the fifth respondent for safe custody.

7. While the matters stood thus, respondents 1 to 4 filed two applications before the trial Court.

8. Respondents 1 to 4 as per their applications in I.A.Nos.24 and 25 of 2002 prayed for an order to deliver interrogatories to the revision petitioner and the fifth respondent and to call upon them to produce documents to show their nexus with the fifth respondent.

9. In the affidavit filed in support of the applications in I.A.Nos.24 and 25 of 2002, it was the contention of respondents 1 to 4 that the fifth respondent was not their dealer at Puducherry as stated in the plaint in O.S.No.3 of 2002. Therefore, it was their prayer to direct the revision petitioner and the fifth respondent to produce documents showing the nexus or business relationship between respondents 1 to 4 and the fifth respondent as the entire claim in the plaint was based on such business relationship.

10. The applications in I.A.Nos.24 and 25 of 2002 were opposed by the revision petitioner by filing counter. The revision petitioner while opposing

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the interrogatories filed under Order 11, Rules 1 and 12 of the Code of Civil Procedure contended that the applications were too premature and questions which have to be put to a witness examined on their side cannot be asked by way of interrogatories. Similarly the direction to produce the documents were also opposed on the ground that the revision petitioner has no connection with those documents as the transaction was purely between respondents 1 to 4 and the fifth respondent.

11. The learned Principal District Judge, Puducherry considered both the applications together and held that receiving documents found mentioned in the application was necessary as it would disclose and reveal the business transaction between the parties. Accordingly the applications were allowed. Aggrieved by the said order, the unsuccessful first respondent is before this Court.

12. The learned counsel for the revision petitioner contended that the learned District Judge has passed an order very mechanically without considering the vital issues involved in the matter. According to the learned counsel, the revision petitioner has no relationship or nexus with the fifth respondent and as such there was no question of producing any document as called upon by respondents 1 to 4. It was his further contention that the interrogatories sought for by respondents 1 to 4 are mischievous and intended to embarrass the revision petitioner during the trial of the case.

13. The learned counsel appearing on behalf of respondents 1 to 4 justified the order passed by the learned trial Judge as according to him answering the interrogatories would shorten the litigation and it would help the Court to dispose of the matter in a more expeditious manner.

Interrogatories:14. Respondents 1 to 4 in their application in I.A.No.25 of 2002 sought

to serve the interrogatories with the following questions:“1. How under what circumstances the plaintiff became aware that

the fifth defendants Bitco Finger Pens are sold in Pondicherry?2. What investigations were done by whom and with whom what

were the results of investigations of the plaintiff/1st respondent?3. What investigations revealed that the fifth defendant pens are

sold commercially and in extensive scale by the 1st defendant with the city of Pondicherry?

4. What was the duration of period investigation of the 1st defendant and what was the scale of sales of the 1st defendant?

5. What is the scale and volume of sale of Vijayalakshmi Book Centre of (1) plaintiff’s pen and (2) 5th defendant’s pen for period of 2001-2002.”

Discussion:15. By way of application in I.A.No.24 of 2002 respondents 1 to 4

wanted the revision petitioner and the fifth respondent to produce documents to show their nexus of distributorship with the fifth respondent.

16. The learned Principal District Judge allowed the applications without making an attempt to consider as to whether the service of the

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interrogatories were absolutely necessary for the purpose of disposal of the case. Similarly there was no attempt made to ascertain as to whether it would be possible for the revision petitioner and the fifth respondent to produce any such document as called for by the respondents 1 to 4.

17. The jurisdiction to permit a party to a suit to deliver interrogatories in writing for the examination of the opposite party is conferred on the Court under Order 11, Rule 1 of the Code of Civil Procedure. Similarly Rule 12 of Order 11 permits a party to apply before the Court for an order directing any other party to the suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any other matter in question.

18. While considering an application under Rules 1 and 12 of Order 11, the Court was expected to look into the effect and significance of the interrogatories sought to be delivered as well as the relevancy of the documents sought to be summoned. The purpose of discovery by interro-gatories was to enable a party to the proceeding to obtain certain vital information from the opposite party so as to use such information to advance his case. Therefore the interrogatories should be confined to the facts of the case. The opposite party is entitled to submit his objection to the interro-gatories on the ground that it was not relevant for the purpose of deciding the case as well as on the ground that there was no bona fides in coming with such an application.

19. The discretion to permit a party to serve the interrogatories has to be exercised on the basis of well established legal principles. The Court has to consider the nature of the claim in the suit, the necessity shown by the party to invoke the provisions of Order 11 of Rules 1 and 12 and other relevant factors for the purpose of exercising the discretion. The delivery of interrogatories cannot be made to cause prejudice to the opposite party. It is also not a short cut method to prove the cases of the party, who intends to deliver interrogatories. Therefore, the trial Court has to consider the matter judiciously and to arrive at a conclusion as to whether the applicant should be permitted to deliver interrogatories or to call upon the opposite party to produce the documents as sought for by him.

20. I have perused the order passed by the learned District Judge. It is found that no attempt was made by the learned Judge to ascertain the effect and the significance of the interrogatories sought to be delivered. There was nothing indicated in the order as to how it would help respondents 1 to 4 to prove their case. Similarly no attempt was made by the learned trial Judge to come to a conclusion as to whether it would be possible for the revision petitioner to produce the documents sought for by respondents1 to 4.

21. The learned trial Judge is bound to consider the implications of the interrogatories in the light of the pleadings. The entire case of the revision petitioner rests on the basis of their enquiry conducted in the matter which resulted in getting the alleged information about the imitations of their branded pen both in design and in shape. Therefore, before granting permission to serve the interrogatories, the trial Court was expected to look into the questions for the purpose of arriving at a conclusion as to whether the revision petitioner should be compelled to disclose their nature of

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evidence in the suit. It is trite that a party is not entitled to serve interrogatories with a view to collect materials which would constitute the evidence of the opposite party. This provision is not a short cut for a party to win the case. The order of the trial Judge does not disclose that the basic requirements for permitting service of interrogatories were considered in the matter.

22. The suit is also ripe for trial and in such circumstances, whether it was necessary to deliver the interrogatories with the questions as contained in the application in I.A.No.25 of 2002 was also not considered by the learned trial Judge. Therefore, I am of the view that the entire issue need to be considered by the learned trial Judge afresh.

23. In the result, the order dated 18.7.2008 in I.A.Nos.24 and 25 of 2002 are set aside and the matter is remitted to the learned trial Judge for fresh consideration. The civil revision petitions are allowed accordingly. Consequently, the connected mps are closed. No costs.

Petitions allowed.

[2009 (3) T.N.C.J. 814 (Mad) (MB)]MADRAS HIGH COURT

(MADURAI BENCH)BEFORE:

N. KIRUBAKARAN, J.JEYARAMAN ...Petitioner

VersusSUTHANTIRAVALLI ...Respondent

[TR. C.M.P. (MD) Nos. 119 and 120 of 2008 and M.P. (MD) Nos. 1 and 1 of 2008, decided on 29th July, 2009]

Civil Procedure Code, 1908—Section 24—Family Courts Act, 1984—Section 7(1)(c)—Transfer petition—Transfer sought by petitioner-husband of two suits to Family Court, Madurai for proper adjudication—Respondent-wife has no objection—Family Court directed to dispose of H.M.O.P. alongwith two other suits for joint trial within three months. (Paras 4 and 5)

Counsel.—Mr. O. Sivakumar, for the petitioner in both Tr. CMPs; Mr. L. Shaji Chellam, for the respondent in both Tr. CMPs.

Important pointWhen respondent/wife has no objection for transferring the suit, case

can be transferred, to Family Court, Madurai.JUDGMENT

N. KIRUBAKARAN, J.—The petitioner/husband filed the above two Transfer CMP petitions. Tr.C.M.P.No. 119 of 2008 has been filed to transfer O.S.No. 471 of 2007 on the file of the learned Third Additional Sub-Judge, Madurai to the file of Family Court, Madurai to be tried along with H.M.O.P.No. 22 of 2007. The other TR. C.M.P. No. 120 of 2008 has been filed to transfer

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O.S. No. 30 of 2007 on the file of the learned District Munsif, Melur to the Family Court, Madurai to be tried along with H.M.O.P. No. 22 of 2007.

2. Heard the learned counsel appearing for the petitioner and the learned counsel for the respondent.

3. The case of the petitioner/husband is that the respondent/wife filed divorce petition in H.M.O.P. No. 22 of 2007 on the file of Family Court, Madurai on the ground of cruelty and adultery and the same is pending before the said Court. Meanwhile, she also filed O.S. No. 471 of 2007 against the petitioner herein praying for declaration that she is the absolute owner of the suit property and for recovery of possession. The said suit is pending before the Subordinate Court, Madurai. Another suit in O.S.No. 30 of 2007 has been filed by the reapondent/wife against the petitioner in O.S. No. 30 of 2007 on the file of District Munsif Court, Melur praying for an order of permanent injunction from in any way interfering with the peaceful possession and enjoyment of the respondent.

4. The allegations in the transfer petition are that the suits which are pending before Sub-Court, Madurai and District Munsif Court, Melur relate to property which was purchased by him in the name of the respondent herein. The divorce petition is pending before the Family Court and the other two suits can be transferred to the Family Court for proper adjudication, otherwise it will be likelihood of passing of conflicting judgments. Apart from that, the dispute is with regard to the same property between the petitioner and the respondent. Hence, he sought for transfer of above two suits. With regard to the jurisdiction of Family Court to try the civil matters, Section 7(1)(c) confers jurisdiction upon the Family Court to decide the matters. Section 7(1)(c) of Family Court Act, 1984 is extracted as follows:

“(a) Suit proceeding between the parties to a marriage with respect to the property of the parties or of either of them.”

5. The respondent/wife has got no objection for transferring O.S.No. 471 of 2007 on the file of the learned Third Additional Sub-Judge, Madurai, and O.S. No. 30 of 2007 on the file of District Munsif, Melur to be tried with H.M.O.P. No. 22 of 2007. Accordingly, both the transfer petitions are allowed transferring the above suits to the Family Court, Madurai along with H.M.O.P. No. 22 of 2007. The Family Court, Madurai is directed to dispose of the H.M.O.P alongwith two other suits by joint trial within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected M.P. (MD) Nos. 1 and 1 of 2008 are closed.

Petitions allowed.

[2009 (3) T.N.C.J. 815 (Mad)]MADRAS HIGH COURT

BEFORE :D. HARIPARANTHAMAN, J.

C. BALASUBRAMANIAN ...PetitionerVersus

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THE COMMANDANT 9TH BATTALION T.S.P. AND ANOTHER

...Respondents[W.P. No. 8380 of 2007, decided on 18th September, 2009]

Service laws—Imposition of penalty—Petitioner a police constable cum-driver met with accident upon victim and victim sustained serious injuries—Accident Tribunal awarded compensation with interest—Govern-ment deposited amount in compliance of Court order—Later Government passed order for recovery—No opportunity to defend given—Further charge-sheet not submitted under Sections 279 and 337 and case was dropped—Held, when petitioner in accident Tribunal stated in counter that he was not responsible and claimant himself was responsible—Then, without affording opportunity petitioner cannot be penalised—Thus, order set aside.

(Paras 10 and 11)Case law.—1994 (6) SCC 154—referred.Counsel.—Mr. P. Sidhardhan, for the petitioner; Mr. P. Muthukumar,

Government Advocate, for the respondents.JUDGMENT

D. HARIPARANTHAMAN, J.—The Original Application in O.A.No.1049 of 2002 before the Tamil Nadu Administrative Tribunal (hereinafter referred to as the “Tribunal”) is the present writ petition.

2. Heard the submissions made by Mr. K. Sanjay, learned counsel for the petitioner and Mr. P. Muthukumar, learned Government Advocate for the respondents.

3. The petitioner was working as Police Constable- cum-Driver in Tamil Nadu Special Police, Manimutharu. On 25.2.1988, while he was driving Police Jeep on treasury duty, he met with an accident upon one Chinnakanni alias Bhadrakali and she sustained severe injuries. A case under Sections 279,337 and 338, IPC was registered in Crime No.90 of 1998 on the file of the Ambasamudram Police Station at Tirunelveli District. However, no charge sheet was filed and the matter was dropped as the investigation revealed that no case was made out.

4. The injured filed M.C.O.P.No.23 of 1993 on the file of the Motor Accidents Claims Tribunal, Ambai. The Tribunal awarded Rs.40,000/- with 12% interest from 25.8.1988. A sum of Rs.1,01,255/- was deposited by the Government in the said Court, in compliance with the order of the Tribunal.

5. While so, the impugned order dated 27.7.2001 was passed by the first respondent, directing a recovery of Rs.1,01,255/- from the salary of the petitioner at the rate of Rs.2,000/- per month in 50 instalments and thereafter Rs.1,255/- towards the last instalment.

6. Aggrieved by the same, the petitioner filed Original Application in O.A.No.1049 of 2002 (W.P.No.8380 of 2007) to quash the aforesaid order dated 27.7.2001 of the first respondent.

7. The learned counsel for the petitioner contends that the criminal case was dropped as “mistake of fact”. The learned counsel further submits that no departmental action was taken by the respondents relating to accident.

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Therefore, there is no basis for making recovery from the salary of the petitioner, relating to the accident, that took place on 25.2.1988 upon one Chinnakanni alias Bhadrakali.

8. The learned counsel for the petitioner also submits that the respondents pleaded before the Motor Accidents Claims Tribunal that the petitioner was not responsible for the accident. It was pleaded therein that the accident was solely due to the negligence of the claimant. The learned counsel also has produced a copy of the counter statement filed by the respondents before the Motor Accidents Claims Tribunal. Paras 2 to 5 of the said counter are extracted here-under:

VERNACULAR (TAMIL) PORTION DELETEDSince the respondents took such a plea, it is submitted that the

respondents are not justified in passing the impugned order to recover Rs.1,01,255/- from the salary of the petitioner.

9. I have considered the submissions made on either side. Before passing the impugned order, the petitioner was not heard. There is no basis for making recovery of Rs.1,01,255/- from the salary of the petitioner. Before passing any adverse order, the concerned person should be heard in conformity with the principles of natural justice. It is well settled by the Honourable Apex Court in Bhagwan Shukla v. Union of India and others reported in 1994 (6) SCC 154 that if an adverse order resulting in civil consequences is passed, concerned person should be heard, otherwise, such an order is vitiated. In this case, admittedly the petitioner was not heard.

10. However, the respondents did not choose to initiate any depart-mental action to ascertain the negligence, if any, on the part of the petitioner, in causing the accident. In the absence of departmental action to find out, whether the petitioner was negligent and whether he was responsible for causing the accident, no order imposing the penalty of recovery would arise.

11. In this case, it is also relevant that the criminal case was also dropped after investigation. In such circumstances, the respondents should not have imposed an order of recovery. More importantly, when the res-pondents filed counter statement in categorical terms before the Motor Accidents Claims Tribunal that the petitioner was not responsible for the accident, the petitioner cannot be imposed the order of recovery, in view of the judgment of a Division Bench of this Court in Tamil Nadu State Transport Corporation (Kumbakonam DN-II) Ltd., rep. by its Managing Director, Tiruchira-palli and another v. P. Karuppusamy reported in 2008 (1) MLJ 694.

12. For all the aforesaid reasons, the impugned order is liable to be quashed. Accordingly, the impugned order is quashed and the writ petition is allowed. No costs.

Petition allowed.

[2009 (3) T.N.C.J. 818 (Mad)]

MADRAS HIGH COURT

BEFORE :

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C.S. KARNAN, J.

THE UNITED INDIA INSURANCE CO. LTD. …Appellant

Versus

THANGAPANDIAN AND ANOTHER …Respondents

[C.M.A. No.787 of 2005, decided on 18th September, 2009]

Motor Vehicles Act, 1988—Section 166—Compensation—Claimant a load man working in vehicle lorry—Due to rash and negligent driving lorry was upset resulting petitioner was caught under load to bags carrying goods and suffered grievous injuries—70% disability—Claimant aged 45 years—No proof of income—Tribunal considering disability of 50% and income at Rs. 80/- per day quantified compensation—Held, no illegality and order call for no interference. (Paras 11 and 16)

Counsel.—Mr. T. D. Vasu, for the appellant; Mr. R. Aravind for R1, for the respondent.

JUDGMENT

C.S. KARNAN, J.—This appeal has been filed by the appellant/second respondent against the judgment and decree passed by the Motor Accidents Claims Tribunal passed in M.C.O.P.No.207 of 2002, awarding a total com-pensation of Rs.2,42,000/- together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of com-pensation.

2. The aggrieved second respondent/appellant/United India Insurance Company Limited has filed the above appeal and challenged the award passed by the Motor Accidents Claims Tribunal.

3. The short facts of the case are as follows:

The petitioner/claimant was working as a loadman in the vehicle lorry bearing registration number MDH4559, owned by the first respondent. On 6.7.2002, the first respondent’s driver has driven the vehicle at 100 feet road, Annanagar West, New 18th Main Road, in a rash and negligent manner and so the said lorry was upset, in the result, the petitioner was caught under the load of bags carrying goods. Hence, he sustained grievous injuries. The said vehicle was owned by the first respondent and it was insured with the second respondent, the United India Insurance Company Limited. As such, both the respondents are jointly, severally and vicariously liable to pay compensation. The compensation claimed by the petitioner was Rs.3,00,000/-. Regarding the said accident, the traffic investigation wing attached to the V-5 Police Station registered a criminal case in Crime No.96/TMZ/02 against the said vehicle lorry driver.

4. The petitioner has claimed compensation under the following heads;Loss of earning—Rs.50,000Transport to hospital—Rs.15,000Extra nourishment—Rs.10,000Hospital expenses—Rs.25,000Compensation for continuing disability—Rs.2,50,000

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Compensation for pain and suffering—Rs.50,000Compensation for loss of earning power—Rs.2,00,000

Total Rs.6,00,000In total a compensation of Rs.6,00,000/- was claimed. However, the

claimant restricted his claim to Rs.3,00,000/-.5. The second respondent/United India Insurance Company has filed

counter statement and opposed the claim of the petitioner. The second respondent denied the said accident which had occurred on 6.7.2002, and further denied that the accident happened due to the rash and negligent driving of the first respondent’s driver. The second respondent does not admit the claimants age, date and time of accident and also stated that the com-pensation claimed is highly excessive. The first respondent/owner of the vehicle did not inform the insurance company about the said accident. The Insurance Policy and driving licence of the driver has not been produced.

6. On the side of the respondent/claimant, two witnesses were examined namely P.W.1, the claimant herein and P.W.2, one doctor, Thyagarajan. On the side of the claimants, six exhibits were marked as Ex.P-1 to Ex.P-6, namely (1) First Information Report (2) Copy of the accident report (3) Medical discharge proceedings, (4) report of the Motor inspector (5) disability certificate and (6) X-ray.

7. The learned Motor Accidents Tribunal has framed two issued in the said claim case namely;

(1) Due to whose negligence, the accident was caused? And(2) If the claimant is entitled to get compensation, and if so, what is

the quantum of compensation?8. In order to prove the negligence P.W.1 i.e., the claimant Than-

gapandian was examined and he tendered oral evidence before the Tribunal that on 6.7.2002 at about 4.45 a.m. the first respondent driver namely Gunasekaran had driven the vehicle lorry in a rash and negligent manner in the 100 feet road, Annanagar West, Near 18th Main Road Junction, when the lorry overturned, in the result, the claimant, who was the loadman in the said lorry, sustained injuries. Supporting his case, the claimant marked first information report as Ex.P-1 and accident register as Ex.P-2, discharge certificate as Ex.P-3, Motor Vehicles Inspector’s report as Ex.P-4.

9. After considering the evidence of the claimant and Ex.P-1 to Ex.P-4, the Motor Accidents Claims Tribunal has come to a conclusion that the accident had happened due to negligence of the driver, Gunasekaran. After coming to this conclusion, the Motor Accidents Claims Tribunal decided the quantum of compensation to be awarded in the following manner. The claimant’s wound certificate, i.e. Ex.P-2 and accident report, X-ray were examined, and it was found that the injuries were sustained on right arm joint and chest of the claimant. This was further confirmed on the basis of X-rays. On the basis of discharge summary, the claimant underwent treatment at Stanley Government Hospital. On the strength of Motor Vehicle Inspector’s Report, it was proved that the vehicle belongs to the first respondent, one Mr.C.Suresh and the same was driven by his driver Gunasekaran that the said lorry has been insured with the second respondent, the United India Insurance Company Limited.

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10. The learned counsel for the insurance company cited three cases reported in (1) 2002 AIR (1935), (2) 2003(3) CTC (380) and (3) 2001(1) TNMLJ (9) (68). As per these cases, the insurance company need not pay the said claim.

11. The Motor Accidents Claims Tribunal, after considering the above said judgments, has come to the conclusion, that the cases cited are not applicable to the instant case, since the claimant was a lorry loadman and had travelled in the said lorry. Hence, the claimant is entitled to get compensation from the respondents. The Tribunal has come to conclusion, on the strength of Ex.P-2, Accident Register that the age of the claimant was 45 years. Regarding the income of the claimant, as no proof was available, the Tribunal decided that the claimant income was Rs.80/- per day. Further, the claimant underwent treatment at Stanley Government Hospital, as inpatient for 12 days and thereafter underwent treatment as out patient. For further treatment, the claimant had gone to hospital at Putthur. Supporting this mode of treatment, Ex.P-2 and Ex.P-3 were marked. One Dr.Thyagarajan, P.W.2, was examined on 7.3.2004 and he tendered evidence and stated that there were deep injury marks found on the left leg palms and also near the toe joint. Further, it was found that the movement of the joint was only 50, and hence the claimant can walk only with a limp. As such, 35% disability happened to the claimant. Further, his spinal cord has broken and been compressed and as a result he will not be able to do any hard work like bending and sitting as usual. Due to pain on his back side, he is wearing a belt. For this body condition, the disability was fixed at another 35%. In total, 70% disability was found on the claimants body due to the injuries suffered in the said accident. The said doctor’s disability certificate has been marked as Ex.P-5, but the learned Tribunal has come to a conclusion that the disability is only 50%.

12. Taking this into the account, the quantum of compensation was fixed as under;

28,800 x 15 = 4,32,000/- as per Schedule 163 (A) of the Motor Vehicles Act. This works out to a sum of Rs.4,32,000/-, but the Tribunal, considering the disability at 50% calculated compensation for loss of income as

4,32,000 x 50/100 = 2,16,000/-. For pain and suffering, Rs.10,000/- was awarded; for nutrition Rs.10,000/- was awarded; for transport Rs.5,000/-; for damage of clothes Rs.1000/- was awarded; in total a sum of Rs.2,42,000/- was awarded by the Tribunal.

13. The first and second respondents are liable to pay the said award amount together with 9% interest, from the date of filing the claim petition till the date of payment of compensation within a month to the claimant. The Tribunal further directed that the said compensation amount was to be deposited in a nationalised bank for three years as fixed deposit. The claimant was permitted to withdraw the interest from the said deposit once in six months period. The Tribunal further directed that the extra court-fee paid by the claimant has to be returned to him.

14. Challenging the findings of the Motor Accidents Claims Tribunal, the learned counsel for the appellant/second respondent Insurance Company, filed the above appeal and prayed for setting aside the judgment and decree on the following grounds:—

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(1) The claimant has not proved that he was a loadman in the said lorry, which was involved in the accident;

(2) The claimant had travelled in the lorry only as a passenger, which is contrary to the Rule 240 of the Tamil Nadu Motor Vehicle Rules, 1989;

(3) The claimant has not produced any documentary evidence that he was a loadman; further the owner of the lorry was not summoned to the Court to prove the same;

(4) Further, there is no statutory liability on the appellant’s side to pay the compensation; and

(5) Compensation also is on the higher side. 15. Per contra, the learned counsel for the respondent stated that after

the said accident, the claimant lost his normal strength and was unable to walk and sit and could not carry out any physical work. He has sustained 70% disability all over the body. The same was confirmed through a Doctor, who is a competent person to give medical opinion, but the doctor’s medical opinion of 70% disability was not considered wholly by the Tribunal and the Tribunal has considered only 50% disability. Further, the learned counsel for the respondent pointed out that there is no error in the judgment and decree passed by the Motor Accidents Claims Tribunal in M.C.O.P.No.207 of 2002.

16. For the foregoing reasons and on consideration of the facts and circumstances of the case, this Court opines that the award passed by the Tribunal, on the basis of the income, age, occupation, nature of injuries, have been done on the basis of oral and documentary evidence. For calculating loss of income, the Tribunal considered only 50% disability instead of 70% disability, which was certified by a competent doctor. For pain and suffering Rs.10,000/- was awarded. There is no doubt that the claimant has suffered grievous injury and as such this award amount of Rs.10,000/- for pain and suffering is reasonable under this head. Rs.10,000/- awarded under the head of nutrition is also reasonable. Rs.5,000/- awarded under the head of Transport expenses is also reasonable. Rs.1,000/- awarded under the head of damages of clothes is also fair. The judgment and decree passed by the Motor Accidents Claims Tribunal in M.C.O.P.No.207 of 2002 dated 11.6.2004 is fair and equitable. Hence, this Court is not warranted to interfere with the award passed and as such this Court confirms the judgment and decree of the Motor Accidents Claims Tribunal. This Court hereby directs the appellant/second respondent to deposit the balance award amount, within a period of six weeks, into the credit of M.C.O.P.No.207 of 2002 with 9% interest from the date of filing the claim petition till date of payment as compensation. It is open to the respondent/claimant to receive the compensation amount lying to the credit of M.C.O.P.No.207 of 2002 on the file of the Motor Accidents Claims Tribunal, Ponneri, since the Accident happened in the year 2002. Resultantly, the civil miscellaneous appeal has to be dismissed and accordingly it is dismissed and this Court confirms the judgment and decree passed in M.C.O.P.No.207 of 2002 on the file of Motor Accidents Claims Tribunal, Ponneri. The parties are directed to bear their own costs.

Appeal dismissed.

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[2009 (3) T.N.C.J. 823 (SC)]SUPREME COURT

BEFORE:S.H. KAPADIA AND AFTAB ALAM, JJ.

M/S. INDODAN INDUSTRIES LTD. ...AppellantVersus

STATE OF U.P. AND OTHERS ...Respondent[Civil Appeal No. 2352 of 2007 with Civil Appeals Nos. 2353 to 2358 of 2007,

decided on 20th October, 2009]Central Sales Tax Act, 1956—Section 9(2-B)—Finance Act, 2000

—Section 120—Levy of interest for delayed payment—Retrospectivity—Constitutional validity of sub-section (2B) inserted vide Finance Act, 2000 not challenged—Held, interest compensatory in nature—No infirmity in judgment of High Court.

(Paras 5 and 6)Important point

Interest for delayed payment is given status of ‘tax due’, is compensatory in nature.

JUDGMENT

AFTAB ALAM, J.—In this batch of civil appeals, the following issues arose for determination before the Allahabad High Court:

(1) Whether sub-section (2-B) of Section 9 of the Central Sales Tax Act, 1956, inserted on 12th May, 2000 by the Finance Act of 2000 is retrospective? and

(2) Whether Section 120 of the Finance Act, 2000 which was a validating Act was invalid inasmuch as it purports to validate a provision which had never existed on the statute book?

2. For the sake of convenience, we may refer to a few facts in the lead matter in the case of Shivalik Cellulose Limited v. State of Uttar Pradesh & Ors., (Civil Appeal No.2354 of 2007).

3. Prior to 12th May, 2000, there was no provision for levy of interest for delayed payment under Section 9 of the Central Sales Tax Act, 1956 (hereinafter referred to as 1956 Act). On 12th May, 2000, Finance Act 2000 came into force. Vide Section 119 of the Finance Act, 2000, sub-section (2-B) came to be inserted in Section 9 of the 1956 Act. We quote hereinbelow sub-section (2-B) which stood inserted in Section 9:

“If the tax payable by any dealer under this Act is not paid in time, the dealer shall be liable to pay interest for delayed payment of such tax and all the provisions for delayed payment of such tax and all the provisions relating to due date for payment of tax, rate of interest for delayed payment of tax, of the general sales tax law of each State, shall apply in relation to due date for payment of tax, rate of interest for delayed payment of tax, and assessment and collection of interest for delayed payment of tax under this Act in such States as if the tax

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and the interest payable under this Act were a tax and an interest under such sales tax law.”

This sub-section (2-B) came into force with the assent of the President only on 12th May, 2000. In all these civil appeals, we are concerned with assessment years prior to 12th May, 2000.

4. In the lead matter of Shivalik Cellulose Limited, we are concerned with the Assessment Years 1979-80, 1980-81 and 1981-82. On facts, there is no dispute that in each of these years, the taxes with penalty have been paid. However, they have been paid after considerable delay. The question which, therefore, arises for determination in this batch of civil appeals is whether sub-section (2-B) inserted in Section 9 operated restrospectively and whether it would cover the aforestated Assessment Years 1979-80, 1980-81 and 1981-82. At this stage, we may also mention one more fact. Vide Section 120 of the Finance Act, 2000, which was the validating provision, the Legislature made it clear that the provisions of Section 9 of 1956 Act shall have effect, and shall be deemed always to have effect as if that section provided for levy of interest for delayed payment for the period when the 1956 Act came into force. We quote hereinbelow Section 120 of the Finance Act, 2000, which reads as under:

“Validation.—(1) The provisions of Section 9 of the Central Sales Tax, 1956 (74 of 1956), (hereafter in this section referred to as the Central Sales Tax Act), shall have effect, and shall be deemed always to have had effect, as if that section also provided—(a) that all the provisions relating to interest of the general sales tax

law of each State shall, with necessary modifications, apply in relation to-

(i) the assessment, reassessment, collection and enforcement of payment of any tax required to be collected under the Central Sales Tax Act, in such State; and

(ii) any process connected with such assessment, reassessment, collection or enforcement of payment; and

(b) that for the purposes of the application of the provisions of such law, the tax under the Central Sales Tax Act shall be deemed to be tax under such law.

(2) Notwithstanding anything contained in any judgment, decree or order of any Court, Tribunal or other authority, general sales tax law of any State imposed or purporting to have been imposed in pursuance of the provisions of Section 9 of the Central Sales Tax Act, and all proceedings, acts or things taken or done for the purposes of, or in relation to, the imposition or collection of such interest, before the commencement of this section, shall, for all purposes, be deemed to be and to have always been imposed, taken or done as validly and effectively as if the provisions of sub-section (1) had been in force when such interest was imposed or proceedings or acts or things were taken or done and, accordingly,—

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(a) no suit or other proceedings shall be maintained or continued in, or before, any Court, Tribunal or other authority for the refund of any amount received or realised by way of such interest;

(b) no Court, Tribunal or other authority shall enforce any decree or order directing the refund of any amount received or realised by way of such interest;

(c) where any amount which had been received or realised by way of such interest is refunded before the date on which the Finance Act, 2000 receives the assent of the President and such refund would not have been allowed if the provisions of sub-section (1) had been in force on the date on which the order for such refund was passed, the amount so refunded may be recovered as an arrear of tax under the Central Sales Tax Act;

(d) any proceeding, act or thing which could have been validly taken, continued or done for the imposition or collection of such interest at any time before the commencement of this section if the provisions of sub-section (1) had then been in force but which had not been taken, continued or done, may, after such commencement, be taken, continued or done.

(3) Nothing in sub-section (2) shall be construed as preventing any person—

(a) from questioning the imposition or collection of any interest or any proceedings, act or thing in connection therewith; or

(b) from claiming any refund, in accordance with the provisions of the Central Sales Tax Act, read with sub-section (1).

Explanation.—For the purposes of this section, “general sales tax law” shall have the same meaning assigned to it in the Central Sales Tax Act.”

5. For deciding this batch of civil appeals, we need to emphasize clause (d) of sub-section (2) of Section 120 which, inter alia, states that any proceeding, act or thing which could have been validly taken but not taken may, after commencement, be taken, continued or done. Clause (d), in our view, gives a complete answer to the contention advanced by the assessee on retrospectivity. Section 120 of the Finance Act, 2000 makes sub-section (2-B) effective right from the very first date of commencement of 1956 Act, i.e. 5th January, 1957.

6. One more aspect needs to be highlighted. In the present case, we are concerned with the levy of interest for delayed payment. Under sub-section (2-B) to Section 9, such interest for delayed payment is given the status of “tax due”. The said interest is compensatory in nature in the sense that when the assessee pays tax after it becomes due, the presumption is that the Department has lost the revenue during the interregnum period (the date when the tax became due and the date on which the tax is paid). The assessee enjoys that amount during the said period. It is in this sense that the interest is compensatory in nature and in order to recover the lost revenue, the levy of interest is contemplated by Section 120 of the Finance Act, 2000 retro-spectively.

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7. Keeping in mind the above, we find no infirmity in the judgment of the Allahabad High Court and, for the aforestated reasons, we dismiss all the Civil Appeals mentioned hereinabove. We, however, make it clear, in conclusion, that in none of these cases, the assessee has challenged the constitutional validity of sub-section (2-B) inserted vide Finance Act, 2000 with retrospective effect. In the circumstances, we are not required to express any opinion on the constitutional validity of the said sub-section particularly, in the context of retrospectivity.

8. Subject to above, civil appeals are dismissed with no order as to costs.

Appeals dismissed.

[2009 (3) T.N.C.J. 826 (SC)]SUPREME COURT

BEFORE:MARKANDEY KATJU AND ASOK KUMAR GANGULY, JJ.

GRASIM INDUSTRIES LTD. AND ANOTHER ...AppellantsVersus

AGARWAL STEEL ...Respondent[Civil Appeal No. 5994 of 2004 with Civil Appeal Nos. 7477/2004 and

1733/2005, decided on 20th October, 2009]Arbitration and Conciliation Act, 1996—Sections 34 and 37—Sale

of cement—Agreement—Disputes and difference—Referred to arbitrator—Arbitrator held signatures on joint statement on behalf of claimant-res-pondent made under mistake—Hence, same was not binding and held appellant liable to pay Rs. 49.90 lakhs alongwith interest to respondent—On objection Additional District Judge held appellant entitled to Rs. 62,000/- with interest at 18%—High Court holding it was signed by respondent under some mistake—View of High Court not agreed—Impugned judgment of High Court set aside—Matter remanded to High Court for expeditious disposal in accordance with law. (Paras 2 and 4)

Important point

Businessmen, being careful people, would have ordinarily read and understood a document before signing it. Hence, it is difficult to accept the contention of respondent that it was signed under some mistake.

JUDGMENT

MARKANDEY KATJU, J.—Heard learned counsel for the parties. This appeal by special leave has been filed against the judgment and order dated 14th May, of the High Court of Judicature at Madhya Pradesh at Jabalpur.

2. The facts in detail have been set out in the impugned judgment and hence we are not repeating the same here. Briefly stated the facts are that the appellant herein entered into an agreement with the respondent and appointed the appellant as a principal dealer for sale of its cement ‘Vikram

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Premium Brand’. On 21.3.1997, the respondent became the consignment agent of the appellant company and in this behalf an agreement dated 1.5.1997 was signed between the parties. Disputes and differences arose between the parties under the said agreement dated 1.5.1997 and the same were referred to an arbitrator. A copy of the arbitration award dated 6.8.2000 is annexed as Annexure-P/10 to this appeal. In the award the arbitrator has rejected the plea of the claimant-respondent that the signature on Ex.D-8 dated 21.10.1997 were only in lieu of a receipt. The case of the appellant was that the document Ex.D-8 was a joint statement of account. The arbitrator held that the signatures on Ex. D-8, joint statement of account, were made by the parties. However, he held that the signature on behalf of the claimant-respondent was made under a mistake and hence the same was not binding. Accordingly, the arbitrator re-examined each head of account and ultimately held the appellant liable to pay to the respondent a sum of Rs. 49.90 lakhs alongwith interest. Objections under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter for short ‘the Act’) were filed by the respondent before the IXth Addl. District Judge, Jabalpur. By his order dated 25.6.2001, the learned Addl. District Judge held that the appellant was entitled to receive a sum of Rs. 62,000/- alongwith interest @ 18%. The said order of the learned Addl. District Judge was put in challenge before the High Court under Section 37 of the Act.

3. We are not going into the details of the impugned judgment except to note that in para 24 of the said judgment it has been stated that the arbitrator did not accept the claimant-respondent’s plea that the signatures on Ex.D-8 were only in lieu of receipt. However, the arbitrator addressed himself to the facet whether the admission was erroneous or mistaken or it was conclusive proof of the matter.

4. In our opinion, when a person signs a document, there is a presumption, unless there is proof of force or fraud, that he has read the document properly and understood it and only then he has affixed his signatures thereon, otherwise no signature on a document can ever be accepted. In particular, businessmen, being careful people (since their money is involved) would have ordinarily read and understood a document before signing it. Hence, the presumption would be even stronger in their case. There is no allegation of force or fraud in this case. Hence, it is difficult to accept the contention of the respondent while admitting that the document Ex.D-8 bears his signatures that it was signed under some mistake. We cannot agree with the view of the High Court on this question. On this ground alone, we allow this appeal, set aside the impugned judgment of the High Court and remand the matter to the High Court for expeditious disposal in accordance with law.

5. All questions of law and fact, except the one decided by us hereinabove shall remain open for the parties to be urged before the High Court. We make it clear that we are making our observation that there was no mistake in the document Ex. D-8, which the parties have signed.

6. Interim order of this Court dated 23.9.2004, as modified on 9.1.2006, shall continue to remain in operation till final disposal of the matter by the High Court. Appeal allowed. No order as to the costs.

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In terms of our order in Civil Appeal No. 5994/2004, these appeals also stand disposed of.

Appeals allowed.

[2009 (3) T.N.C.J. 828 (SC)]SUPREME COURT

BEFORE:MARKANDEY KATJU AND ASOK KUMAR GANGULY, JJ.

SONIC SURGICAL ...AppellantVersus

NATIONAL INSURANCE COMPANY LTD. ...Respondent[Civil Appeal No. 1560 of 2004, decided on 20th October, 2009]

Consumer Protection Act, 1986—Section 17—Consumer Protection (Amendment) Act, 2003—Section 17(2)—Cause of action—Arisal of—Since fire broke at Ambala—Insurance policy also taken at Ambala—Claim for compensation also made at Ambala—No part of action arose of Chandigarh—Consumer Commission at Chandigarh had no jurisdiction to entertain and adjudicate complaint—Case filed in the year 2000—Hence, amended Section 17(2) has no application—No interference with order of NCDRC.

(Paras 4, 8 and 11)

Case law.—AIR 2003 Cal 80; AIR 2002 SC 126; 1994 AIR SCW 3284—relied on.

Important point

It is well settled that the expression ‘cause of action’ means that bundle of facts which gives rise to a right or liability.

JUDGMENT

MARKANDEY KATJU, J.—Heard learned counsel for the parties.

2. This appeal by special leave has been filed against the order dated 10th July, 2003 of the National Consumer Disputes Redressal Commission, New Delhi (for short ‘NCDRC’) whereby the appeal filed by the respondent herein has been allowed and the order of the Consumer Disputes Redressal Commission Union Territory, Chandigarh has been set aside.

3. It appears that there was a fire on 13-14th February, 1999 at 10.00 p.m. in the godown of the appellant at Ambala. For claiming compensation, the appellant filed a claim petition before the Consumer Commission of the Union Territory, Chandigarh constituted under Section 17 of the Consumer Protection Act, 1986 (hereinafter for short ‘the Act’). The said claim petition filed by the appellant herein was allowed by the Consumer Commission of the Union Territory, Chandigarh. On appeal, the NCDRC allowed the appeal of the respondent herein on the ground that the Consumer Commission at Chandigarh had no jurisdiction to entertain and adjudicate the complaint. We are in agreement with the view taken by the NCDRC.

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4. In our opinion, no part of the cause of action arose at Chandigarh. It is well settled that the expression ‘cause of action’ means that bundle of facts which gives rise to a right or liability. In the present case admittedly the fire broke out in the godown of the appellant at Ambala. The insurance policy was also taken at Ambala and the claim for compensation was also made at Ambala. Thus, no part of the cause of action arose in Chandigarh.

5. One of us (Hon’ble Mr. Justice Asok Kumar Ganguly) while a Judge of the Calcutta High Court in the case of IFB Automotive Seating and System Ltd. and others v. Union of India, AIR 2003 Calcutta 80, has dealt with the question as to the meaning of the expression ‘cause of action’. Placing reliance on a decision of this Court in the case of Union of India v. Adani Exports Ltd., AIR 2002 SC 126, in para 40 of the said judgment it has been observed as under :

“In Adani Exports (AIR 2002 SC 126) (supra) the learned Judges in para 13 set out the facts pleaded by the petitioner to give rise to cause of action conferring territorial jurisdiction on the Court at Ahmedabad. One of the facts pleaded is that non-granting and denial utilization of the credit in the pass book will affect the business of the respondents at Ahmedabad. This fact is not pleaded in the case in hand. Even then the learned Judges held that those facts are not sufficient to furnish a cause of action as they are not connected with the relief sought for by the respondents. Here also the relief is against the orders of approval and this High Court has no territorial jurisdiction to grant that relief. Therefore, the communication to the effect that the petitioners’ representation against orders of approval is rejected is of no consequence. The Supreme Court, further dealing the concept of Article 226(2) and relying on the decision of ONGC (1994 AIR SCW 3287), explained the concept of cause of action in para 17 at page 130 of the report and the relevant extracts wherefrom are excerpted below :“It is clear from the above judgment that each and every fact pleaded by the respondents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the Court’s territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned.

The learned Judges also held in para 18 as follows :“The non-granting and denial of credit in the passbook having an ultimate effect, if any, on the business of the respondents at Ahmedabad would not also, in our opinion, give rise to any such cause of action to a Court at Ahmedabad to adjudicate on the actions complained against the appellants.”

6. We respectfully agree with the view taken by the Calcutta High Court in the aforesaid decision of IFB Automotive Seating (supra). Hence, in our opinion, no part of the cause of action in the present case arose at Chandigarh.

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7. Learned counsel for the appellant then invited our attention to the amendment brought about in Section 17(2) of the Act in the year 2003. The Amended Section 17(2) of the Act reads as under :

“(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction—(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or per-sonally works for gain; or

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution;

(c) the cause of action, wholly or in part, arises.”8. The aforesaid amendment came into force w.e.f. 15.3.2003 whereas

the complaint in the present case has been filed in the year 2000 and the cause of action arose in 1999. Hence, in our opinion, the amended section will have no application to the case at hand.

9. Moreover, even if it had application, in our opinion, that will not help the case of the appellant. Learned counsel for the appellant submitted that the respondent-insurance company has a branch office at Chandigarh and hence under the amended Section 17(2) the complaint could have been filed in Chandigarh. We regret, we cannot agree with the learned counsel for the appellant. In our opinion, an interpretation has to be given to the amended Section 17(2) (b) of the Act, which does not lead to an absurd consequence. If the contention of the learned counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or any-where in India where a branch office of the insurance company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench hunting. In our opinion, the expression ‘branch office’ in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity. [vide G.P. Singh’s Principles of Statutory Interpretation, Ninth Edition, 2004 P. 79]

10. In the present case, since the cause of action arose at Ambala, the State Consumer Redressal Commission, Haryana alone will have jurisdiction to entertain the complaint.

11. For the reasons stated hereinabove, we do not see any reason to interfere with the impugned order of the NCDRC. Accordingly, this appeal is dismissed. No order as to the costs.

Appeal dismissed.

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[2009 (3) T.N.C.J. 832 (Mad)]MADRAS HIGH COURT

BEFORE :M. VENUGOPAL, J.

SUBRAMANIAM AND ANOTHER …Petitioners Versus

GANDHI …Respondent[C.R.P. (NPD) No.2580 of 2008 and M.P. No.1 of 2008, decided on 17th

September, 2009]Limitation Act, 1963—Section 5—Delay in making application—

Condonation of—Sufficient cause to be shown for condonation of delay—Further liberal approach to be adopted by Court—Reason assigned that petitioner was suffering from jaundice when case was posted for hearing—Again he has been suffering from jaundice is not acceptable—No convincing or documentary evidence produced—Court below rightly rejected app-lication—Hence, no interference warranted. (Paras 13 to 16)

Counsel.—Mr. S. Kingston Jerold for M/s. S. Rakhunathan, for the petitioner; Mr. G. Ilamurugu, for the respondents.

JUDGMENT

M. VENUGOPAL, J.—The civil revision petitioners/petitioners/defendants have projected this civil revision petition as against the order dated 25.3.2008 in I.A.No.1231 of 2007 in O.S.No.94 of 2007 passed by the learned District Munsif, Perambalur in dismissing the application filed by the petitioners under Section 5 of the Limitation Act praying to condone the delay of 433 days in filing an application to restore the I.A.No.1663 of 2004.

2. The trial Court, while passing orders in I.A.No.1231 of 2007 on 25.3.2008, has inter alia opined that ‘the reasons assigned by the first petitioner/first defendant that he has been affected by jaundice cannot be accepted and further in this regard no documents and details have been produced by the petitioners and resultantly dismissed the application.’

3. The learned counsel for the revision petitioners urges before this Court that the order of the trial Court in dismissing I.A.No.1231 of 2007 is contrary to law and probabilities of the case and further the trial Court has not appreciated the factum of jaundice for the first and second time and also the trial Court has failed to appreciate the fact that the petitioners have not been informed by the counsel in regard to the dismissal of the application and now the petitioners have changed their counsel and proceeded with the case and these aspects of the matter have not been rightly looked into and appreciated by the trial Court in a proper perspective and therefore, prays for allowing the civil revision petition in the interest of justice.

4. In the affidavit filed by the first revision petitioner/first defendant before the trial Court, it is averred that the suit O.S.No.94 of 2001 has been posted on 18.7.2006 for enquiry and since he has been suffering from jaundice, he has not been able to attend the Court and meet his Advocate and hence, the application is dismissed for default and the said non-appearance is neither wilful nor wanton and again he has been suffering from

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jaundice and therefore, he has not met his Advocate and unable to file the application in time which has resulted in a delay of 433 days in filing an application to restore the I.A.No.1663 of 2004.

5. In the counter filed by the respondent/plaintiff (decree holder), it is among other things averred that I.A.No.1663 of 2004 which has been filed under Section 5 of the Limitation Act has been dismissed on 18.7.2006 and again to restore the same in I.A.No.1231 of 2007 the same reason of jaundice has been projected and as a matter of fact, in E.P.No.80 of 2005 the first civil revision petitioner/first defendant’s Advocate has filed vakalat on 17.11.2006 and has filed counter on 15.6.2007 and later it has been adjourned to different dates for hearing and seven times the petitioners have prayed for time in between 17.11.2006 and 15.6.2007 and later on only filed the counter to the execution proceedings and that suit has been filed in the year 2001 and the same has been decreed in the year 2004 and later an execution application has been filed in 2005 and after procrastinating the matter to a maximum extent now it is not to say that the petitioners have got a case and that they have not filed written statement earlier cannot be an acceptable one and therefore, has prayed for the dismissal of the application.

6. The learned counsel for the respondent/plaintiff supports the order of the trial Court and submits that the trial Court has assigned cogent and convincing reasons in dismissing the application on merits and the same need not be interfered with by this Court sitting in revision.

7. The learned counsel for the respondent/plaintiff cites the decision in P. Perumal v. Minor Kumaresan, (2003) 2 MLJ 837, wherein it is inter alia held that ‘facts disclosed that the party against whom, an ex parte decree was passed, was aware of the proceedings and hence, sufficient cause was not made out.’ He also relies on the decision in S. Panchatcharam v. S. Sambandha Mudhaliar and another, (2008) 6 MLJ 534, it is held as follows:

“As per Section 5 of Limitation Act, it is the duty of the petitioner to explain satisfactory reason, for each day of delay before the Court to condone the same. Therefore, when there is no explanation except bald allegation that delay was caused due to lower Court counsel, the order dismissing the delay petition needs no interference. Also where another suit is pending which will provide relief no prejudice is said to caused.”

8. Another decision of this Court in K. Muthu v. A. Mohamed Yusuf Khan and others, (2008) 4 MLJ 1293 (Mad-NOC), has been relied on the side of the respondent/plaintiff to the effect that ‘when the applicant has not come Court with clean hands, and when the affidavits are devoid of truth and bona fide liberal approach cannot be shown in matters relating to condonation of delay.’

9. Continuing further, the learned counsel for the respondent/plaintiff presses into service the decision of this Court in Sivakumar and another v. R. Sengodan, (2007) 5 MLJ 718, wherein it is laid down as follows:

“In a case of condonation of delay, the Court must take a liberal view, but at the same time, the Court should not do so on exercising equity and Court should not excuse the delay when there is no sufficient and

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convincing reasons, otherwise, it would be nothing but extension of limitation what is not available to a party under an enactment.”

10. In the decision in Kaliammal and others v. Sundharammal and another, (2007) 1 MLJ 577 at page 578, it is held that ‘it is not whether the delay is long or short, but whether there is an acceptable explanation for it, which is of consequence. Where the delay has been deliberate, the petitioners cannot plead for substantial justice as against technical considerations.’

11. It is to be noted that the expression ‘sufficient cause’ must be applied by a Court of law in a meaningful manner which subserves the ends of justice. Moreover, a litigant generally does not stand to benefit by lodging an application late. If a litigant resorts to delay, certainly he runs a serious risk. When substantial justice and technical considerations are pitted against each other, it is true that cause of substantial justice deserves to be preferred, of course subject to the facts and circumstances of each and every case.

12. Moreover, it is the duty of the Court to go into the position of a party and to see there exists a sufficient cause for exercising its discretionary powers in regard to the condonation of delay. No wonder, the length of delay is immaterial. A honest approach of a defaulting party attracts the discretion of the Court to pass an appropriate order. At this juncture, this Court recalls the observations of Hon’ble Supreme Court in Mahabit Singh v. Subhash and others, (2008) 1 MLJ 1214 (SC), which runs thus:

“Admittedly, an ex parte decree was passed. Defendant for getting it set aside was required to establish that either no summons was served on him or he had sufficient cause for remaining absent on the date fixed for hearing the suit ex parte.Article 123 of the Limitation Act, 1963 provides for 30 days time for filing such an application.Even assuming for the sake of argument that no proper step was taken by the appellant herein for service of summons upon the respondent and/or the service of summons was irregular, evidently, it was for the defendant-respondent to establish as to when he came to know about the passing of the ex parte decree. Even in his cross-examination, the first respondent has categorically admitted that he had approached the appellant herein for not giving effect thereto one and half year prior to filing of the application, and, thus, he must be deemed to have knowledge about passing of the said ex parte decree. The period of limitation would, thus, be reckoned from that day. As the application under Order 9, Rule 13 of the Code of Civil Procedure was filed one and a half year after the first respondent came to know about passing of the ex parte decree in the suit, the said application evidently was barred by limitation.”

13. Admittedly, the reason assigned by the petitioners in I.A.No.1663 of 2004 filed under Section 5 of the Limitation Act is the ‘ailment of jaundice’. Again in I.A.No.1231 of 2007 the reason assigned by the petitioners are also suffering from jaundice on 18.7.2006 and later also. Significantly, the first civil revision petitioner/ first defendant alone has filed the affidavit in I.A.No.1231 of 2007 before the trial Court. However, in the said affidavit in

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I.A.No.1231 of 2007 there is no reference to the second revision petitioner/second defendant. Furthermore, the first revision petitioner/first defendant’s Advocate has filed vakalat on 17.11.2006 in E.P.No.80 of 2005 and has filed his counter only on 17.11.2006.

14. Even though a Court of law has to apply the term ‘sufficient cause’ in a meaningful and purposeful way to secure the ends of justice, yet this Court is of the considered opinion that the liberal approach to be adopted by a Court of law while dealing with the Section 5 application cannot be employed in a cavalier fashion when the said application lacks bona fides.

15. As far as the present case is concerned, the reasons assigned by the revision petitioners in the affidavit to the effect that ‘the first petitioner has been suffering from jaundice when the main case has been posted for hearing on 18.7.2006 and again he has been suffering from jaundice are not an acceptable, sufficient or good cause because of the simple fact that except the ipsi dixi of the petitioners to the above effect there are no valid, acceptable, convincing materials either by way of oral or documentary evidence and viewed in that perspective, the petitioners have not made out a case for allowing the present civil revision petition and consequently, this revision fails to prevent an aberration of justice.

16. In the result, the civil revision petition is dismissed, leaving the parties to bear their own costs. The order passed by the trial Court in I.A.No.1231 of 2007 in O.S.No.94 of 2001 dated 25.3.2008 is confirmed for the reasons assigned by this Court in this revision. Consequently, connected miscellaneous petition is closed.

Revision dismissed.[2009 (3) T.N.C.J. 836 (Mad)]

MADRAS HIGH COURT

BEFORE :P.R. SHIVAKUMAR, J.

B. BHUVANESHWARI AND OTHERS …AppellantsVersus

KUPPAMMAL …Respondent[A.S. No.668 of 2002 and C.M.P. No. 14616 of 2002, decided on 9th

September, 2009]Partition—Hindu law—Preliminary decree passed—Partitioning

pro-perty into 1/4 share each—Hence, this appeal—Properties of deceased was not self acquired but also inherited—Hence, share cannot be equally distributed—Respondent plaintiff entitled to 1/4 x 1/3 = 1/12 share only—Decree modified. (Paras 12, 14, 15 and 16)

Counsel.—Mr. A. Thiagarajan, for the appellants; Mr. M. Venkatachalam, Senior Counsel for Mr. M. Sriram,; for the respondent.

JUDGMENT

P.R. SHIVAKUMAR, J.—The defendants 1 to 3 in the suit are the appellants. The plaintiff in the original suit is the respondent herein. The suit was filed by the respondent herein for partition of the suit properties claiming that the plaintiff was entitled to 1/4th share in the suit properties and seeking

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partition of her share from the rest of the shares belonging to the appellants/defendants. The trial Court, after trial decreed the suit and granted a preliminary decree for partition as prayed for in the plaint. Hence, the defendants have preferred the present appeal suit on various grounds set out in the memorandum of appeal.

2. The admitted facts leading to the filing of the present appeal can be summarized as follows:

(i) The respondent/plaintiff is the mother of deceased Balasubra-maniam. The first appellant (first defendant) and the appellants 2 and 3 (defendants 2 and 3) are respectively the widow, son and daughter of Balasubramaniam. The suit properties were the properties allotted to the said Balasubramaniam in a partition that took place under a registered deed dated 13.7.1969. The same was marked before the trial Court as Ex.A-2. The respondent/plaintiff, deceased Balasubramaniam and the sisters of the deceased Balasubramaniam were the parties to the above said Partition. In the said Partition, the respondent/plaintiff was content with the allotment of a family fund kept in cash to the tune of Rs.5,000/- towards her share. Balasubramaniam and his two sisters were allotted shares in the immovable properties. Admittedly, the subject-matter of the partition were the properties held by one Rengasamy Naicker, husband of the respondent/plaintiff. The properties held by Rangasamy Naicker consisted of properties allotted to him in a family partition and the properties purchased by him. The entire property left behind Rengasamy Naicker, were made the subject-matter of the partition under the partition deed marked as Ex.A-2 without making any distinction between the properties allotted to him in the family partition and the properties purchased by him. The suit properties came to be allotted to the share of Balasubramaniam, the son of Rengasamy Naicker.

(ii) Claiming that the properties allotted to late Balasubramaniam under the said partition were his separate and absolute properties, the respondent herein/plaintiff, who is admittedly a class-I heir of Balasubramaniam, filed the suit claiming 1/4th share in the suit properties. According to the respondent’s/plaintiff’s conten-tion, Balasubramaniam having died intestate, his properties shall devolve upon the appellants and the respondent equally, as his legal heirs. Thus, the claim that she was entitled to one-fourth share in the suit property was made by the respondent/plaintiff.

(iii) The claim of the respondent/plaintiff was resisted by the appellants/defendants with the contention that the properties of Balasubramaniam were not his absolute properties and on the other hand, they were the joint family properties of Balasubra-maniam and the appellants 2 and 3 herein/defendants 2 and 3. According to their contention, by virtue of an amendment introduced to the Hindu Succession Act by Tamil Nadu Act 1 of 1990, the 3rd respondent also became a coparcener in respect of the ancestral properties of Balasubramaniam as she was not married on the date on which the Hindu Succession Act as amended by Tamil Nadu Act

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1 of 1990 was brought into force and that hence, the interest held by Balasubramaniam in the suit properties as a coparcener was only 1/3rd share and the other 2/3rd belonged to the appellants 2 and 3 as coparceners. It was their further contention that, on the death of Balasubramaniam, in normal course, his 1/3rd share would have been devolved upon his legal heirs, each one of the appellants and respondent becoming entitled to 1/4th out of his 1/3rd share. However, the defendants had also taken a plea that even in respect of that 1/3rd share of Balasubramaniam, the respondent/plaintiff was not entitled to any share as his legal heir, since Balasubramaniam did not die intestate and he had left a Will dated 7.6.1994, bequeathing all his properties in favour of the appellants herein, giving life estate to the first appellant and the vested remainder to the second appellant subject to an obligation to take the responsibility of getting the 3rd appellant suitably married. Based on the above said pleadings, the appellants/defendants had prayed for the dismissal of the suit in the entry stage. However, it had also been averred that if respondent/plaintiff was entitled to any share in the property, she would be entitled to 1/12th share in the suit properties.

(iv) Based on the above said pleadings, the trial Court framed the following issues:

(1) Whether the plaintiff is entitled to the relief of partition as prayed for? If so at what ratio?

(2) Whether the plaintiff is entitled to mesne profits?(3) Whether the Will allegedly executed by the deceased

Balasubramaniam dated 7.6.1994 is true and valid?(4) Whether the court-fee paid is correct?(5) To what relief plaintiff is entitled?

(v) In the trial, respondent/plaintiff examined herself as the sole witness (P.W.1) and marked 10 documents as Exs.A-1 to A-10 on her side. The second appellant/second defendant was examined as the sole witness (D.W.1) and marked 6 documents as Exs.B-1 to B-6 on the side of the defendants. At the conclusion of trial, the trial Court considered the pleadings and evidence in the light of the arguments advanced on either side and upon such considera-tion, came to the conclusion that the plaintiff had proved her case that she was entitled to 1/4th share in the suit properties. Based on the said finding, the trial Court granted a preliminary decree directing division of the suit properties into four equal shares and allotment of one such share to the respondent herein/plaintiff.

3. The said judgment and preliminary decree dated 3.4.2002 passed by the learned Additional District Judge (Fast Track Court No.1), Coimbatore is challenged in this appeal on various grounds set out in the memorandum of appeal.

4. The points that arise for consideration in this appeal are as follows:

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(1) Whether the properties held by the deceased Balasubra-maniam were his absolute properties or joint family properties, in which he had only undivided interest as a coparcener?

(2) Whether the respondent/plaintiff, as a legal heir of Bala-subramaniam, is entitled to 1/4th share in the suit properties?

(3) To what relief the parties are entitled?

5. The submissions made by Mr. A. Thiagarajan, learned counsel for the appellants and Mr. M. Venkatachalam, learned senior counsel representing Mr. M. Sriram, learned counsel on record for the respondent were heard. The entire records were also perused.

6. It is the contention of the learned counsel for the appellants that the trial Court committed an error in arriving at the conclusion that the suit properties were the absolute properties of deceased Balasubramaniam, which led to the ultimate mistake in granting the decree for partition of the properties as prayed for by the respondent/plaintiff in the suit. According to the submissions made by the learned counsel for the appellants, there are clear documentary evidence capable of ruling out any oral evidence in this regard and the trial Court failed to appreciate the implications of the partition effected under Ex.A-2, after the death of Rengasamy Naicker. The learned counsel for the appellants also drew the attention of the Court by pointing out the value of the shares allotted to each one of the parties to the said partition deed, indicating the consensus arrived at by the parties to the deed that the properties were the joint family properties of the coparcenary consisting of Rengasamy Naicker and his son Balasubramaniam as coparceners.

7. It is the further contention of the learned counsel for the appellants that even otherwise, the properties which came into the hands of Balasubramaniam on the death of his father Rengasamy Naicker as his legal heir, cannot be construed to be self-acquired properties of Balasubramaniam and that hence, the trial Court ought to have rejected the contention of the plaintiff that the suit properties were the self-acquisitions of Balasubra-maniam. The learned counsel for the appellants also pointed out the fact that though the appellants/defendants have taken a plea to the effect that the interest held by Balasubramaniam in the coparcenary property at the time of his death could not be subjected to the rule of intestate succession as he had left a Will bequeathing all his properties in favour of the appellants, they have chosen to give up such plea by not producing the said Will in proof of such contention.

8. It is the further contention of the learned counsel for the appellants that the appellants 2 and 3 were coparceners along with their father late Balasubramaniam and that the respondent/plaintiff shall only a right to have a share in the undivided interest of the deceased Balasubramaniam as on the date of his death as one of his legal heirs and thus the respondent/plaintiff shall be entitled to 1/4th share of Balasubramaniam’s one-third share, namely 1/12th in the entire suit property. The learned counsel concedes that the respondent/plaintiff can be granted a decree for partition of her one-twelfth share in the suit property.

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9. Per contra, the learned senior counsel for the respondent would contend that not only the ancestral properties of Rengasamy Naicker but also the properties purchased by him were made the subject-matter of Ex.A-2-Partition Deed and that, therefore, whatever share that was allotted to Balasubramaniam should be construed to be his absolute property and that hence the claim of the respondent/plaintiff should be sustained. The learned senior counsel for the respondent also submitted that since the daughters and wife of Rengasamy were also allotted shares under the said partition deed, the properties allotted to Balasubramaniam should be construed to be his absolute property. It is his further contention that, in view of the same, the respondent/plaintiff is absolutely justified in claiming 1/4th share in the entire suit properties as one of the legal heirs of Balasubramaniam.

10. Taking note of the nature of pleadings and the nature of issues involved in this case, this Court is of the considered view that the oral evidence adduced on both sides did not play a vital role and the case can be disposed of based on the documents, especially Ex.A-2- Partition Deed and the respective pleadings made by the parties. It is not in dispute that none of the properties which are the subject-matter of the suit was purchased either by the plaintiff or by her son Balasubramaniam. Admittedly, all the properties remained the properties of Rengasamy Naicker before his death. Entire properties left behind Rengasamy Naicker were divided among his wife, son and daughters under Ex.A-2. Ex.A-2 itself contains necessary indication regarding the nature of interest held by Rengasamy Naicker.

11. The specific case of the appellants is that the properties held by the deceased Balasubramaniam were not his absolute properties, but were held by him as kartha of the joint family consisting of himself, his son and daughter as coparceners who have become entitled to a share in them by birth. On the other hand, the case of the respondent/plaintiff is that the properties were the absolute properties of her son late Balasubramaniam and hence she is entitled to an equal share in it along with each one of the appellants herein. What is the basis on which the respondent/plaintiff contends that the properties were the absolute properties of the deceased Balasubramaniam? “has not been made clear. The evidence of P.W.1 in this regard is some what nebulous and evasive, besides giving room for confusion. At one stage, P.W.1 would say that the properties were purchased by herself and her son. But, it is an admitted fact that none of the suit properties was purchased either by the respondent/plaintiff or by her son late Balasubra-maniam and that all the suit properties were the properties allotted to him in a partition effected under the original of Ex.A-2 to which the respondent/plaintiff, the deceased Balasubramaniam and the daughters of the respondent/plaintiff were parties. In the said partition deed dated 13.7.1989, nothing has been mentioned about the antecedent title relating to those properties divided among them in clear terms. On the other hand, there is a recital in the said document to the effect that some of the properties came to the husband of the respondent/plaintiff, namely late Rengasamy Naicker under a partition deed and some of the properties were purchased by the said Rengasamy Naicker. Whether the purchases were made out of his separate funds or from the funds derived from the ancestral nucleus” has not been spelt out in any of the documents produced by the parties to the present case.

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12. Of course it is true that the respondent/plaintiff has produced Exs.A-5, A-6, A-7 and A-9 to show that properties were purchased by Rengasamy Naicker. But Ex.A-10 shows that a property purchased by another person, namely Krishnasamy Naicker, the paternal uncle of Rengasamy Naicker was also made a subject-matter of a partition between Rengasamy Naicker and Ranganathan, son of Krishnasamy Naicker in the year 1966 as evidenced by Ex.A-8. In the said partition deed dated 25.7.1966 recital has been incorporated to the effect that properties belonging to Rengasamy Naicker by virtue of a sale deed dated 4.1.1945 and the properties belonging to Ranganathan son of Krishnasamy Naicker as self acquisition and ancestral properties, were divided under the said partition deed between Rengasamy Naicker and Ranganathan. It is also obvious from the documents that some of the properties purchased by Rengasamy Naicker had been sold by the said Rengasamy Naicker during his life time. Similarly, some of the ancestral properties were also sold by him during his life time as evidenced by Ex.B-2-sale deed dated 29.5.1958. Ex.B-3 dated 3.7.1937 evidences the fact that Gurusamy Naicker, the father of the Rengasamy Naicker had purchased a property in 1937 itself. The said document has been produced on the side of the defendants to show that there was ancestral properties in the hands of Rengasamy Naicker. Therefore, it is quite obvious that, though Rengasamy Naicker during his life time happened to purchase some of the properties in his name under Exs.A-5 to A-7 and A-9, he was also having ancestral properties in his hands, out of which he was deriving income.

13. It is obvious from Ex.A-8 that one of the properties purchased by Rengasamy Naicker and another property purchased by Krishnasamy Naicker, the paternal uncle of Rengasamy Naicker were made the subject-matters of partition among Rengasamy Naicker and one Ranganathan, son of Krishnasamy Naicker. Krishnasamy Naicker had purchased the said property under Ex.A-10. The same will give an indication that though separate purchases had been made, they were treated as family properties. The said view gets strengthened from the fact that all the properties left behind Rengasamy Naicker were divided under Ex.A-2 among his son Balasubra-maniam, the respondent/plaintiff (wife of Rengasamy Naicker) and the daughters of the respondent herein and that while effecting partition under Ex.A-2, no distinction was made between the properties which were self-acquisitions of Rengasamy Naicker and which were the ancestral properties of Rengasamy Naicker. As rightly contended by the learned counsel for the appellants, the manner in which the division was made under Ex.A-2 will lend help to ascertain the consensus of the parties regarding the nature of the properties which were divided under the said partition deed. The learned counsel pointed out the fact that the wife of the deceased Rengasamy Naicker was allotted only a cash of Rs.5,000/- and the two daughters of Rengasamy Naicker were allotted properties worth Rs.15,833/- and Rs.15,886/- respectively, whereas the son of Rengasamy Naicker, namely the deceased Balasubramaniam was allotted properties worth Rs.1,09,226/-. According to the submission made by the learned counsel for the appellants, the allotment of shares in the said partition will give a clear indication that the parties were of the view that the properties were the ancestral properties of Rengasamy Naicker in which his son late Balasubramaniam was entitled to half share by birth and that on the death of the other coparcener, namely

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Rengasamy Naicker, his half share by virtue of the proviso to Section 6 of the Hindu Succession Act, 1956 devolved upon all his legal heirs, namely late Balasubramaniam, the respondent herein and his two daughters, equally. Thus the respondent herein and each one of her daughters would be entitled to 1/8 share, whereas the deceased Balasubramaniam would be entitled to 5/8 share (1/2 as coparcener and 1/8 as legal heir of Rengasamy Naicker). Such an understanding, according to the learned counsel for the appellants, is reflected in the manner in which the properties were divided under Ex.A-2. This Court finds substance and force in the above said contention raised by the learned counsel for the appellants.

14. Apart from that, clear averments have been made on behalf of the appellants to the effect that the properties allotted to deceased Balasubra-maniam under Ex.A-2 were not his absolute properties and they were held by him in his capacity as the manager/kartha of the joint family consisting of himself, his son and daughter (appellants 2 and 3) as coparceners and that therefore, in the properties held by late Balasubramaniam, he was entitled to 1/3 share alone, whereas the other 2/3 share would go to the appellants 2 and 3 in their capacities as coparceners as son and unmarried daughter of the deceased Balasubramaniam. It is an admitted fact that the third appellant remained unmarried when the Tamil Nadu Amendment to Hindu Succession Act was brought into force. It is also not the case of the respondent/plaintiff that there was any partition effected to bring the joint family into disruption before the State Amendment was brought into force so as to deny the benefit of the amendment to the third appellant. As against the clear stand taken by the appellants that the suit properties were the joint family properties of deceased Balasubramaniam in which the appellants 2 and 3 had got equal share by birth, the evidence of the respondent/plaintiff is not uniform. During cross-examination, P.W.1 candidly admitted that the recitals found in Ex.A-2 were correct and that the separate properties and ancestral properties of her husband were divided by her with her children under Ex.A-2. It has also been admitted by her that the son was allotted a larger share whereas the daughters and she were allotted smaller shares. It is also her admission that in the properties earned by her husband, she, her son and her daughters were entitled to equal shares. But at the same time, she would also state that the said properties were divided in accordance with such shares, which is obviously erroneous one. In the light of Ex.A-2, the said testimony of P.W.1 stands falsified. At the end of her testimony during cross-examination, the respondent as P.W.1, has also stated that she earned money and purchased the properties which is against the plaint pleadings and the documentary evidence produced on either side.

15. On the other hand, the plea taken by the appellants and the evidence adduced on their side were uniform throughout. In civil cases, issues are decided not on the basis of proof beyond reasonable doubt, but on broad probabilities. In this case, the plaintiff (respondent herein) who has come forward with the suit claiming 1/4 share in the suit properties based on her plea that the properties were the absolute properties of her son, has not adduced sufficient evidence in proof of the said plea to discharge the initial burden cast on her and to shift the burden on the defendants who pleaded otherwise. Admittedly, none of the properties held by the deceased Bala-

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subramaniam was his self-acquisition. On the other hand, he got all those properties only under the partition deed dated 13.7.1989, a certified copy of which has been marked as Ex.A-2. There are also admissions to the effect that the properties held by the father of late Balasubramaniam which were partitioned among his son, wife and daughters included not only his self-acquisitions but also his ancestral properties. It has also been indicated supra that the division made under Ex.A-2 would indicate the consensus among the parties to the partition that the son Balasubramaniam was a coparcener along with his father and hence he was allotted a major share, whereas each one of the others was allotted a lesser share, which would be more or less equal to 1/4th of the 1/2 share referable to the father of Balasubramaniam (equivalent to 1/8th of the properties). In the evidence P.W.1 has also admitted that her husband did possess self-acquired as well as ancestral properties. The defendants have also produced documents to show that some of the ancestral properties were also sold by the father of Balasubramaniam. Therefore, the defendants’ contention that the acquisitions by the father of Balasubra-maniam were made from out of the income of the joint family nucleus and using the funds raised by selling some of the joint family ancestral properties becomes more probable.

16. For all the reasons stated above, this Court comes to the conclusion that the trial Court failed to appreciate the above said aspect in proper perspective and arrived at a wrong conclusion that the properties held by deceased Balasubramaniam were his absolute properties, in which each one of the appellants and the respondent would get 1/4 share on his death. The said decision arrived at by the trial Court is found to be erroneous and the same deserves to be reversed. The evidence adduced in this case indicates the fact that the suit properties were the ancestral joint family properties of Balasubramaniam in which Balasubramaniam, the second appellant and the third appellant had got equal shares as coparceners and the 1/3 share of Balasubramaniam alone devolved upon all the parties to the suit as his legal heirs, on his death. Thus the respondent/plaintiff shall be entitled to 1/4 x 1/3 = 1/12 share alone. To the above said extent, the preliminary decree passed by the trial Court has got to be modified.

17. In the result, the appeal is allowed and the preliminary decree dated 3.4.2002 passed by the trial Court is modified by directing division of the suit properties into twelve equal shares and allotment of one such share to the respondent in the appeal/plaintiff. Subject to the above said modification, the decree of the trial Court shall stand confirmed in all other respects. No cost. Consequently, the connected miscellaneous petition is also closed.

Appeal allowed.

[2009 (3) T.N.C.J. 844 (Mad)]MADRAS HIGH COURT

BEFORE :S. PALANIVELU, J.

MANIMARAN …Petitioner

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VersusGANDHIMATHI AND ANOTHER …Respondents

[C.R.P. (NPD) No. 2192 of 2009 and M.P. No.1 of 2009, decided on 15th

September, 2009]Civil Procedure Code, 1908—Order 21, Rule 97 read with Section

151—Obstruction to possession of immovable property—Suit by first respondent for specific performance of contract—Suit decreed—Petitioner is third party who obstructed delivery—Claim of petitioner is that on strength of unre-gistered partition schedule property fell to his share in 2002 and from said period he has been in possession of property—He produced Xerox copies of unregistered partition deed, family card and also voter identity card—Application rejected by trial Court on ground that mere possession will not make entitle petitioner to make obstruction when his mother entered into contract with respect to property standing in her name exclusively—Held, finding is legal and call for no interference. (Para 10)

Case law.—(1997) 7 SCC 694; (2005) 1 MLJ 191; (2007) 4 MLJ 485—referred.

Counsel.—Mr. R. Marudhachalamurthy, for the petitioner; Mr. B. Dyaneswaran, for the respondents.

JUDGMENT

S. PALANIVELU, J.—The petitioner is third party. The first respondent filed a suit in O.S.No.32 of 2004 on the file of the Sub-Court, Dharapuram for specific performance of contract on the strength of agreement for sale executed by the second respondent who is none other than mother of this petitioner. The suit was decreed and the first respondent levied execution proceedings and got sale deed executed in his favour through Court. Thereafter, he filed E.P. No.76 of 2007 for delivery of the properties through Court. While the Court bailiff went to the suit property for delivery, this petitioner obstructed delivery and he filed an application under Order 21, Rule 97 read with Section 151, CPC requesting the Court to exclude ‘B’ Schedule property from the ‘A’ Schedule property which is the suit property. It is his claim that on the strength of an unregistered partition, the ‘B’ Schedule property fell to his share in the year 2002 and from the said period, he has been in possession of the property. He also produced xerox copies of the unregistered partition deed dated 30.6.2002, the xerox copies of Family Card and also the Voters Identity Card.

2. The learned Subordinate Judge, Dharapuram rejected the application without taking the same on file by observing that the petition is not maintainable in law and mere possession shall not entertain him to make obstruction when his mother entered into the contract with respect to the property standing in her name exclusively. Hence, the petitioner has come forward with this revision petition before this Court.

3. This Court perused the xerox copy of unregistered partition deed dated 30.6.2002 and also the family card issued in the names of this petitioner and his wife Dhanalakshmi for the years 2005 to 2009. It is issued for Door No.42/A which is the property mentioned in ‘B’ Schedule in the

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obstruction petition. The validity, enforceability and admissibility of the unregistered partition deed is left open to be decided by the executing Court. As far as the family card is concerned, it was issued in the year 2005 itself in the names of the petitioner and his wife. His mother’s name nor brother’s name are found. Copy of voters list has not been produced before this Court.

4. The learned counsel for the petitioner would say that the family card is clinching evidence to show that both the petitioner and his wife are residing in the house bearing Door No.42/A. He also placed reliance upon a decision of the Supreme Court reported in (1997) 3 SCC 694 (Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal and another) in which Their Lordships have held that after hearing the decree holder and the obstructionist, the Court can pass appropriate orders after adjudicating upon the controversy between the parties as enjoined by Order 21, Rule 97, sub-rule (2) read with Order 21, Rule 98, CPC.

5. The Apex Court has directed the executing Court to proceed to adjudicate upon the application in accordance with the subsequent provisions contained in the order challenged and neither the executing Court nor the High Court in revision had considered the objection of the appellant against execution on merits and that the executing Court must first adjudicate upon objections of the appellant on merits under Rule 97 (2) read with Rules 101 and 98 instead of insisting upon first handing over possession and then moving of application by the appellant under Rule 99, that words “any person” in Rule 97(1) includes such a stranger as the appellant and if the resistance or obstruction found to be unjust and unwarranted, then the same would be removed by the Court.

6. The learned counsel for the first respondent Mr. B. Dyaneswaran would place reliance upon a decision of this Court reported in (2005) 1 MLJ 191 (G. Ganesan v. Surendran) in which it is observed that a petition by obstructor can be filed only if there are documents to show actual possession and without any document, such petition cannot be entertained and when there is no evidence available to prove actual possession excepting the bare statement the obstruction petition is not maintainable.

7. In yet another decision of this Court reported in (2007) 4 MLJ 485, Jansirani and Ors. v. Loganathan and Ors., it is held that the original documents itself is not admissible in evidence for want of stamp and registration and also as, it could not be looked into for collateral purposes.

8. In order to avail the advantages provided under Rule 97 of Order 21, CPC, the obstruction must be a just one. If the obstructionist does not project the obstruction without any just cause, his claim could not be entertained. The Court may in its discretion, even before the petition be taken on file, find out the genuineness of the claim. Sub-rule (2) to Rule 98 of Order 21, would provide that upon such a determination, namely after the determination of questions referred to in Rule 101, the Court is satisfied with the resistance or obstruction was occasioned without any just cause by the judgment-debtor or by some other person at his instigation or on his behalf, or by any transferee, where such transfer was made during the pendency of the suit or execution proceeding, shall direct that the applicant be put into possession of the property, and where the applicant is still resisted or obstructed in obtaining

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possession, the Court may also, at the instance of the applicant, order the judgment-debtor or any person acting at his instigation or on his behalf to be detained in the civil prison for a term which may extend to thirty days.

9. The legal consequences to either the judgment-debtor or a third party claiming under him or any other person who puts his obstruction without ‘just cause’, and if the obstruction continues even after the direction of the executing Court, the Court may commit him to civil prison at the instance of the applicant. When the subsequent provision namely Rule 98 provides for such a relief to be provided to the decree holder for the possession of immovable property or any purchaser, when a person comes forward with a petition under Rule 97, he has to necessarily show ‘just cause’. If the effort taken by such person is to drag on the proceedings or preventing the execution petitioner from enjoying the fruits of the product of the execution proceedings, then in the considered view of this Court, such effort should be nipped in the bud. If no material is produced at the time of filing of the application by such person to show his lawful possession in the property, then his claim could be curtailed at the threshold. Vexatious and frivolous litigations shall not be allowed to occupy the space of the Courts and to waste the valuable judicial time. When sub-rule (2) to Rule 98 of Order 21 is read in extra position to Rule 97, an irresistible conclusion could be arrived at, that the petition under Rule 97 should be a bona fide one and if it is presented containing mala fide wishes of the person filing it, there is no embargo for the Court to reject the same.

10. Adverting to the facts of the present case, the suit was filed in the year 2004 on the strength of a sale agreement executed on 9.6.2003. Execution proceedings were levied in E.P.No.65 of 2006 and the sale deed was also executed by the Court in accordance with the decree and sub-sequently the present E.P. has been filed in the year 2007. Only one material shown before this Court is xerox copy of Family Card which is for the years 2005-2009. After filing of the suit and the suit was decreed on 10.1.2005, the Family Card has been obtained only to delay the execution of the decree. In this context, the contention that the documents have been created to defraud the decree holder is acceptable. Such attempts could not be encouraged by the Courts. It is far fetched contention that the mother had already came forward to partition the properties in the year 2002 by means of a registered partition deed. A perusal of the xerox copy of unregistered partition deed would show that by virtue of this partition deed, the alleged partition was effected. Hence, it requires registration.

11. The endeavours of the petitioner is not based upon any justifiable cause and it is observed that without any “just cause”, he as approached the Court. Only with a view to see the decree holder defeated in executing his decree lawfully, there had been creation of records subsequent to the filing of the suit and passing of the decree. Hence, this Court does not find any infirmity in the orders challenged before this Court either factually or legally. No valid ground has been made out to interfere with the order impugned, the same deserves to be confirmed and it is accordingly confirmed.

12. In fine, the civil revision petition is dismissed. No costs. Con-sequently, the connected miscellaneous petition is closed.

Revision dismissed.

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[2009 (2) T.N.C.J. 848 (Mad)]MADRAS HIGH COURT

BEFORE:M. CHOCKALINGAM AND R. SUBBIAH, JJ.

M/S. TCI DISTRIBUTION CENTRES LTD. ...AppellantVersus

THE OFFICIAL LIQUIDATOR AND OTHERS ...Respondents[Original Side Appeal Nos. 85 to 88 of 2009 and M.P. No. 1 of 2009, decided

on 8th September, 2009]Civil Procedure Code, 1908—Order 21, Rule 90—Auction—

Setting aside of—Description of property erroneous, misguiding and misleading—Survey number of land also not belong to company under liquidation—Hence, auction sale liable to be set aside—Respondent directed to return entire sale consideration alongwith interest. (Paras 42, 45 and 46)

Counsel.—Mr. P.S. Raman, Senior Counsel, for Mr. S.R. Rajagopal, for the appellants; Mr. Arvind P. Datar, Senior Counsel, for Official Liquidator, for the respondent 1; Mr. R. Senthil Kumar, for the respondents 3.

JUDGMENT

M. CHOCKALINGAM, J.—All these appeals challenge a common order of the learned single Judge of this Court dated 13.4.2009 made in C.A.No.1953 to 1956 of 2008 in C.A.No.1983 of 2007 in C.P.No.526 of 2000.

2. Pending the winding up proceedings in the matter of M/s. Fidelity Industries Limited (in Liquidation) in C.P.No.526 of 2000, the Official Liquidator, High Court Madras, made C.A.No.1983 of 2007 for the following reliefs:

(a) to open the valuation report and fix the reserve price for the vacant land at Sriperumpudur and to permit the Official Liquidator to sell the property through this Hon’ble Court;

(b) to permit the Official Liquidator to sell the property at Gandhi Nagar, Adyar by taking the earlier reserve price already fixed by this Hon’ble Court as the present upset price for sale of the same;

(c) to permit the Official Liquidator to invite sealed tenders through advertisement in the newspapers specified in para 9 of this report, and to pay the expenses of the advertisement from and out of the funds to the credit of the company in liquidation;

(d) to approve the Draft Sale Notice, Tender Form and terms and conditions marked as ‘ANNEXURE-A’ to this report;

(e) to direct that the expenses incurred for the sale will come out of the assets of the company in liquidation;

(f) to direct that the cost of this application do come out of the funds of the company in liquidation”

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3. The appellant/applicant filed C.A.Nos.1953 to 1956 of 2008 in C.A.No.1983 of 2007 seeking the following reliefs.

(a) to direct the Official Liquidator to trace the balance original documents pertaining to the property and hand over the same to the purchaser;

(b) to direct the Official Liquidator to engage the services of the concerned revenue officials to locate the lands, survey and to fix the boundaries and to lay revenue stones and deliver possession thereof;

(c) to direct the Official Liquidator not to disburse the sale proceeds to the creditors till handing over of balance documents, surveying of lands and laying of boundary stones; and

(d) to direct the Official Liquidator to return the sale consideration with interest in the event of non-compliance of handing over of balance documents, surveying and laying of boundary stones within the time fixed by this Hon’ble Court.

4. All the applications came to be filed under the following circum-stances.

The applicant in all those applications, who is the appellant herein, namely, M/s.TCI Distribution Centers Limited, was the purchaser, in view of the highest bid made by him in the auction conducted by this Court on 6.2.2008, in respect of 41.12 acres of free hold land belonged to M/s.Fidelity Industries Limited (under Liquidation). The said auction following a publication effected by the Official Liquidator, High Court, Madras, in respect of those lands, which are situate in two villages, namely, Kilai and Ulundai. The auction conducted on 6.2.2008. The appellant/applicant, who was the highest bidder, purchased the land for a sum of Rs.15.20 crores. The sale was also confirmed by the Court in favour of the applicant/appellant. When a direction was issued for the payment of difference of the earnest money deposit and the balance of sale consideration within 90 days in two instalments, after remitting the balance of earnest money deposit, the applicant/appellant made a request for furnishing the title deeds and the field map relating to the property. The Official Liquidator was also directed to collect the documents from the company under liquidation and furnish the same along with the field map and on 20.3.2008, the appellant/applicant remitted the first instalment of the sale consideration. When the matter came up for hearing on 24.3.2008, the appellant/applicant made a request to furnish copies of documents and to order survey of lands. But, there was a direction to the appellant/applicant to remit the balance of sale consideration as per the schedule. The appellant/applicant paid the second and last instalment on 30.4.2008 though the due date for second instalment was on 5.5.2008. On the said date, the company under liquidation handed over some documents pertaining to the property and on 30.4.2008, there was a direction to hand over possession of the property and also the documents and conveyance. The IDBI handed over only 26 documents covering an extent of 20 acres and the other documents were not delivered. When the appellant/applicant made a request on 3.6.2008, the Official Liquidator handed over 26 documents. The date of handing over possession was fixed on 12.6.2008. When the applicant was present for taking possession the

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property, it was found that it was a barren land and there were no boundary stones. The Official Liquidator had also prepared the minutes for handing over physical possession on the said date but he has not handed over physical possession of the properties with boundaries. However, the appellant/applicant has taken possession of the property in full faith. On a perusal of the documents, the appellant/applicant was not able to identify the correct location of the lands. He approached the Official Liquidator, requesting for handing over of documents and surveying of lands and also requested not to disburse the sale consideration to any secured creditors. Though the appellant/applicant has paid the full sale consideration, he was unable to take possession of the entire property and also the original documents were not available. Under these circumstances, the appellant/applicant filed all the above applications for the said directions to the Official Liquidator.

5. The learned Single Judge, on scrutiny of the materials available, took a view that all those applications were misconceived and there was absolutely no ground to interfere with the sale, which was confirmed by the Court, and hence, made an order of dismissal of all those applications. Hence, all these appeals at the instance of the applicant.

6. Advancing the arguments on behalf of the appellant/applicant, Mr. P.S. Raman, learned senior counsel would submit that the common order under challenge is contrary to the provisions of the Companies Act and Rules, more particularly when it conferred absolute powers on the Official Liquidator, sanctifying any illegality committed by him and removing all obligations cast on him under Section 455 of the Companies Act; that the Official Liquidator appointed in respect of the company in liquidation is required to submit a statement or a preliminary report of the company under liquidation to the Court in and whereby the affairs, assets, etc. are required to be investigated and verified and hence, the finding recorded by the learned Single Judge that it was not possible for the Official Liquidator to investigate into the title of the properties brought to auction was liable to be set aside since it is contrary to the provisions and the objects of the Companies Act; that the discrepancies as stated by the appellant in the affidavit dated 8th September, 2008 were found by the appellant subsequent to the payment of entire sale amount; that it is pertinent to note that the same goes to the root of the matter, amounting to misrepresentation thereby vitiating the same; that therefore, the Court should have set aside the sale and directed the refund of the amount with interest, damages and costs to the appellant; that there was a positive assertion by way of annexure to the tender terms and conditions as regards the description of the immovable property and that the same was admittedly erroneous and on the basis of the same, an offer was made by the appellant and therefore, the auction sale was liable to be set aside.

7. Added further the learned senior counsel that there was a breach of duty on the part of the Official Liquidator under the provisions of the Companies Act in so far as to the identification of the properties and making representations as to the company in liquidation’s interest therein, which was evident from the fact that the description of the property mentioned in the tender terms and conditions were erroneous and prepared without

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application of mind and without any basis and hence, the offer made in furtherance of the same by the appellant and accepted by the Court was liable to be recalled and set aside; that the words ‘as is where is and whatever there is basis’ cannot apply to the facts of the case or to a sale made by the Court in exercise of the powers conferred under the provisions of the Companies Act, more particularly to immovable properties and sanctify the act of the Official Liquidator in mis-describing the property or including the survey numbers of lands which admittedly cannot or never belonged to the company under liquidation and thereby exposing the auction purchaser, i.e. the appellant, to loss; that subsequent to the acceptance of the bid of the appellant and payment of the amount representing the earnest money deposit, the appellant had moved a memo seeking for verification of the title deeds, which was opposed by the Official Liquidator that the same could be done only after remittance of the entire amount and therefore, holding that the appellant had ample time prior to the remittance of the amount to investigate title, was contrary to the facts and the same cannot be the reason for dismissing the applications or denying the relief to the appellant and that the learned Single Judge has not appreciated the series of orders passed in C.A.No.1983 of 2007 by the Court subsequent to the confirmation and prior to passing of the order under challenge.

8. Added further the learned senior counsel that I.T.C.O.T. Consultancy and Services Limited was entrusted with the work of valuation and preparation of the report; that the said agency has been paid amount towards their services; that based on their report, the Official Liquidator has brought the properties for sale and fixed the upset price and thus, the order of the learned single Judge that in so far as holding that the Official Liquidator could not investigate into the title of the property was factually incorrect and the dismissal of the applications is liable to be set aside on this ground; that in the valuation report prepared by I.T.C.O.T. Consultancy and Services Limited, they have categorically stated that the valuation of the said property was arrived without any land documents and the ownership of the land was determined from the previous owners, which was suppressed by the Official Liquidator in the tender terms and conditions and hence, the sale was vitiated; that the statement made by the Official Liquidator in the terms to tender were misleading and based on the same, the appellant had offered to purchase the property; that when admittedly the representations made by the Official Liquidator during negotiations which had led to the contract were not true, the sale was void; that the Official Liquidator was duty bound to disclose the interest of the company in liquidation to the properties brought for auction; that the Statute imposes and casts an obligation on the part of the Official Liquidator to verify the title of the company in liquidation to the property brought for sale; that in the absence of the same, any sale made in furtherance of any such representation, that is found to be untrue, is void entitling the offerer or purchaser to rescind the sale at any point of time; that subsequent to tendering of the entire sale amount and after handing over symbolic possession, the boundaries were sought to be fixed by the purchaser i.e., the appellant pursuant to the orders passed by the Court and that during the same, several mis-discrepancies, as set out in the memo and extracted in the order, were found rendering the sale void and those discrepancies were well within the knowledge of the Official Liquidator, who

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did not bring it to the notice earlier; that even prior to the completion of the sale and remittance of the amount, the appellant had sought for fixing of boundary stones as there was no demarcation of the property, which was opposed by the Official Liquidator on the ground that the relief sought for at that point of time was luxurious; that having opposed the memo filed for fixing boundary stones and furnishing title deeds, it was not open to the Official Liquidator to oppose the applications; that the duty is cast upon the Official Liquidator to disclose the every aspect, more particularly when the said disclosure, if not done, would affect the judgment of the bidders; that any sale by the Court is one on good faith, trust and confidence and classified as Contract of Uberrimae fidel and therefore, when the auction purchaser reposes confidence and faith on the representations made in the Court sale and the same being ipso facto, accepted as true and no opportunity, whatsoever, provided to the purchaser to scrutinize the title and when the representations found to be false, the sale was liable to be set aside.

9. The learned senior counsel would further submit that the First Leasing Company, who claimed themselves to be the secured creditors, have failed to furnish the documents of the title in respect of entire 41.12 acres and that much after the payment of the entire consideration and after directions from the Court, the title deeds were given by IDBI to the Official Liquidator, that too, only in respect of 20.18 acres and, hence, there was no opportunity to verify the title deeds in the facts of the case and it cannot be put against the appellant, more particularly to deny the relief; that the Official Liquidator was in a fiduciary position owing a duty to make full disclosure of all material facts known and available with him; that the fact that the non-availability of title deeds ought to have been incorporated in the statement made in the tender sale and therefore, the sale was liable to be set aside; that the relief sought for in C.A.No.1953 of 2008 was for tracing of original title deeds, which was opposed and registered by the Official Liquidator; that the property is in the custody of the Court and that the Official Liquidator was bound to furnish all the documents to the purchaser; that in the absence of the same and the tender notification speaking contrary, the sale was liable to be set aside; that the learned Judge failed to note that by an order dated 13.3.2003 the company was ordered to be wound up and that as late as November, 2007, the application for sale was preferred; that therefore, the Official Liquidator had ample time and should have investigated the title of the company in liquidation to the properties and prepared a report as to the properties belonging to the company in liquidation; that for the act of negligence and lethargy on the part of the Official Liquidator, the innocent purchasers, who have participated in the auction based on the representation made in the tender terms and conditions, cannot be fastened with liability or exposed to damage and loss; that it is not a case where the doctrine of caveat emptor could be applied; that it is not correct that Section 55 of the Transfer of Property Act was not applicable to the sale made by the Official Liquidator; that it is also not correct that the provisions of Order 21, Rules 90 to 92 of C.P.C. were not applicable to the sale made by Official Liquidator in exercise of the powers of the Companies Act.

10. Added further the learned senior counsel that it is also not correct to state that the rough sketch submitted along with the tender terms and conditions showing the property to be contiguous and having entrance from

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the main road, did not amount to any representation; that based on the same, believing the land to be contiguous and having access from the main road, an offer was made by the appellant and that when the same was not true, the appellant was entitled to rescind from the sale; that the appellant, at no point of time, wanted to walk out of the sale for any reason, more particularly the reasons set out by the learned single Judge as to global recession; that it is pertinent to point out that the reliefs sought for in C.A.Nos.1953 to 1955 of 2008 seeking for curing of the defects were resisted by the Official Liquidator and therefore, the appellant was entitled for the relief of setting aside the sale; that the Official Liquidator has contended in his written statement that the sale was not in furtherance of the advertisement and was in voluntary offer by the appellant and if to be so, the Official Liquidator could not contend that in the publication made it was mentioned that the sale was “as is where is and whatever there is basis”; that the learned single Judge has erred in coming to the conclusion that there was no mistake in the minds of the parties which would vitiate the contract of sale and in this regard, failed to appreciate several of the representations in the tender terms and conditions were admittedly erroneous and the Official Liquidator has suppressed the same; that the pre-contractual representations in the form of tender terms and conditions were lacking good faith and amounted to willful misrepresentations and therefore, the sale was liable to be set aside; that at no point of time, the passing of high tension wire and construction of an overhead tank and T.V. room by the Government and the property has no access was ever brought to the knowledge of the appellant and hence, the sale was vitiated; that the land was vacant land without any boundaries and the Official Liquidator having engaged services of an agency to finalise the description and ownership of the property and arrive at the valuation, ought to have disclosed the existence of high tension wire and the construction of overhead tank, TV room etc. and thus, the sale was vitiated by fraud, misrepresentation and mistake of facts and therefore, void enabling the purchaser appellant to seek for refund of the purchase money and under such circumstances, all the appeals have got to be allowed.

11. Learned senior counsel appearing for the appellant took the Court to the different reports and affidavits filed by the Official Liquidator before and after the sale in question. The learned senior counsel, in support of his contention relied on a decision of the Apex Court in The Ahmedabad Municipal Corporation of the City of Ahmedabad v. Haji Abdul Gafur Haji Hussenbhai, 1971 (1) SCC 757.

12. Contrary to the above contentions, Mr. Arvind P. Datar, the learned senior counsel representing the Official Liquidator (1st respondent) would submit, inter alia, that when the company is wound up, the duty of the Official Liquidator is to take into custody of the properties of the company; but the properties do not vest with the Official Liquidator and he could act only as per the records of the company under liquidation; that the Official Liquidator cannot hold any guarantee or warranty when he sells the properties of the company under liquidation; that in case of auction sale, there is no warranty of title and issuance of a notification by the Official Liquidator was only an invitation to treat and the offer is actually made by the bidder and the acceptance is by the auctioneer, namely, the Official Liquidator; that only on acceptance, the contract becomes complete; that the

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auction purchaser is expected to investigate into the title before making such offer; that in the instant case, the notification was issued and publication was also made on 16.12.2007; that after long interval of such publication, the appellant has purchased the property and that during the interregnum period, the appellant should have made necessary enquiry in respect of title and possession of the properties and if not done, it was his fault and he should not find fault with the Official Liquidator; that in the instant case, the Official Liquidator has not suppressed any fact; that since at the time of publication and also notice of tender, it was specifically stated that ‘as is where is and whatever there is basis’ and thus, there was no deception or misrepresentation made. Placing reliance on the decision of United Bank of India v. Official Liquidator and others, (1994) 1 SCC 575, the learned senior counsel would submit that the sale by the Official Liquidator did not mean that he held out a warranty or guarantee in respect of the property sold and it was distinguishable from the sale effected by the individuals selling immovable properties.

13. Added further the learned senior counsel that if the Official Liquidator has not willingly or deliberately made any false statement, the Court cannot interfere; that in the instant case, what was done by the Official Liquidator was placing a report before the Court with all available records of the company under liquidation and seeking an order of sale of the property; that it is also not in the case of the appellant that an attempt to deceive was made by the Official Liquidator; that the Official Liquidator is not the person, who is making the sale of the property; that he was only an instrument in the hands of the Court; that there was no relationship, much less, fiduciary relationship between the Official Liquidator and the auction purchaser and that even if the statements made fall under the category of negligence, that would not be sufficient to set aside the sale.

14. Added further the learned senior counsel that under Section 460(6) of the Companies Act, any such conduct of the Official Liquidator can be the subject-matter of the decision by the Court, if the party aggrieved approaches the Court and that when an auction sale is conducted by the Official Liquidator though pursuant to the orders of the Court, the execution proceedings, as envisaged under Order 21 of Civil Procedure Code, have no application. Placing reliance on a decision of The Ahmedabad Municipal Corporation v. Haji Abdul Gafur Haji Hussenbhai, 1971(1) SCC 757, the learned senior counsel would further add that in the instant case, the doctrine of caveat emptor (purchaser beware) is applicable and Order 21, Rule 91 of C.P.C. has no application to the present facts of the case. The learned senior counsel also pointed out that even if the judgment debtor had no saleable interest at all in the property sold, the same is not covered by the doctrine of Caveat Emptor as what is contemplated in Order 21, Rule 91, C.P.C. is different; that even Order 21, Rule 90, C.P.C. cannot be applied to the present case since for application of the said provision, not only some material irregularity should be there, but also it should have caused substantial injury; that the law would require a specific plea and proof for the substantial injury; but, in the instant case, there was neither pleading nor proof therefor and that under such circumstances, even Order 21, Rule 90, C.P.C. cannot be pressed into service by the appellant.

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15. The learned senior counsel would further submit that had the auction purchaser acted in a reasonable and prudent manner, these discrepancies could have been discovered earlier and there was an opportunity for him to drop out from the sale even before making the balance of sale consideration; that in the absence of pleadings that steps were taken by the appellant for verification of the title, inspection of site etc., it would be quite clear that the appellant was only taking advantage of the fall in prices of the immovable properties and thus, it was an attempt to back out from the offer made by him and the same cannot be permitted and if permitted, it will cause much prejudice to the creditors both secured and unsecured; that it was made clear in clause 12 of the terms and conditions that the buyers were to satisfy themselves about the condition of the property; that it cannot be stated that there was any mistake, much less, material mistake regarding the nature of the lands; that the parties have fully understood the subject-matter of the sale before it was effected; that the Official Liquidator has to look after 450 companies in the entire State, which are in the control and supervision of this Court; that while disposing of the assets either movable or immovable, it would not be practically possible for the Official Liquidator to scrutinize the correctness of the title, measurement of the properties, defects, if any, in the assets; that it remains to be stated that the Official Liquidator has no personal knowledge to the property at all; that only after passing of the order of winding up, he got the control of the property and that in many of the cases, the erstwhile Directors do not co-operate and they do not place all the material records for perusal, inspection and for further proceedings.

16. Added further the learned senior counsel that it is true, certain discrepancies were pointed out by the appellant; but they did not carry any merit for setting aside the sale; that even the averments in the affidavit filed by the appellant would clearly indicate that they have taken possession of the property; that no person shall purchase the property without making inspection of the same; that the appellant has complained about the overhead tank, TV room, etc; that on inspection, the appellant should have noticed the same and in so far as the entry point is concerned, it was originally a poramboke and the same was being used by the company in liquidation for its passage and the same state of affairs continues; that so far as the land to an extent of 2.16 acres is concerned, according to the appellant, it was classified as ‘Cherry Natham’; that till the time of sale, in all the revenue records, the said property was found as agricultural land and the ownership was with the company in liquidation and if there was any classification later, the Official Liquidator cannot be found fault with or there was no mistake on his part when he issued the tender notice; that it is not correct to state that the properties are not contiguous or in different places and the field map would clearly indicate that the entire extent of 41.12 acres situate in two villages as one piece of land; that in so far as the complaint made by the appellant that the documents in respect of the entire landed property was not handed over is concerned, admittedly, 26 original documents were actually handed over; that in respect of the other documents, the First Leasing Company of India Limited has given the certified copies of all the documents of title pertaining to the entire property; that in so far as the original documents are concerned, excepting 26 documents which were actually handed over to the appellant, the remaining cases were

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in the custody of Apple Credits, one of the creditors of the company in liquidation; that it is also pertinent to point out that the said Apple Credit Company has filed an application before the Company Court showing the Official Liquidator as sole respondent for recovery of the dues and hence, it remains to be stated that the company was under winding up proceedings and it is quite natural that all the documents of title would not be with the company in liquidation and in the instant case, part of the documents were actually handed over and part of the documents were in the custody of the Apple Credit Company, which has sought for recovery of money in the proceedings before the Company Court; however, the certified copies of all the documents were handed over by the First Leasing Company of India Limited to the appellant, which fact cannot be denied; that under such circumstances, the non-delivery of documents was nothing but a reason invented by the appellant to wriggle out of the contract; that out of 41.12 acres of land, the documents were not available only in respect of 0.27 cents, which is extremely meagre and that the sale made by the Official Liquidator was pursuant to the orders of the Court and the Official Liquidator is not in any fiduciary relationship with the appellant.

17. Learned counsel appearing for the 3rd respondent put forth his submissions in his sincere attempt of sustaining the order under challenge. He has also relied on the following decisions:

Karamchand Appliances Pvt. Ltd. v. Bharat Carpets Ltd. (in Liquidation) and others, 103 CC 552 (Delhi);

International Coach Builders Ltd. v. Karnataka State Financial Corporation, (2003) 2 CLJ 166 (SC);

Divya Manufacturing Co. (P.) Ltd. v. Union Bank of India and others, (2000) 6 SCC 69;

I.T.C. Ltd. v. George Joseph Fernandas and another, (1989) 2 SCC 1.18. The Court has paid its anxious consideration on the submissions

made by the learned senior counsel on either side and made a scrutiny of all the materials available.

19. An order dated 14.6.2001 was made by this Court in Company Petition No.526 of 2000, whereby M/s. Escorts Finance Limited, Chennai, was ordered to be wound up and the Official Liquidator attached to this Court has become the Official Liquidator of the Company. A direction was also issued to take charge of all the properties and effects of the company. The Official Liquidator filed his report on 20th June, 2007, which reads as follows:

“3. In compliance of the above said order, the Official Liquidator took possession of Company’s movable and immovable properties situated at various places. Subsequently as directed by the Hon’ble Court, the Official Liquidator has valued the said properties through I.T.C.O.T.”.

20. Pursuant to the orders of this Court, the Official Liquidator requested I.T.C.O.T., Chennai, to value the properties in question, namely, 41.12 acres of land of the company in liquidation situated in Kilai and Ulundai villages. In paragraph 7 of the report of the Official Liquidator dated 20.6.2007, it was stated as follows:

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“7. It is submitted that the sale of another property a vacant land to an extent of 41.12 acres belonging to the company in liquidation, situated at in various survey numbers in Killai and Ulundai Village, Sriperumpudur, Thiruvallur District was confirmed for an amount of Rs.14,00,000,000/- in favour of Shri S.Yusuf Siddique, the highest bidder, who subsequently failed to remit the balance sale consideration and this Hon’ble Court by an order dated 26.4.2007 in C.A.No.392/2007 forfeited the EMD of Rs.2,00,000/- received from Shri S.Yusuf Siddique and directed the Official Liquidator to obtain fresh valuation report from I.T.C.O.T. for auctioning the said property. Accordingly, the Official Liquidator has got the property valued afresh through I.T.C.O.T. on 28.5.2007 and received the valuation report in a sealed envelope, which is in the custody of the Official Liquidator and will be submitted before this Hon’ble Court, at the time of hearing of this application”.

All the above reports of the Official Liquidator would indicate that he has taken actual delivery of possession of the lands in question and all the movable and immovable assets of the company in liquidation except the property mentioned above and another property situate at Adyar, were sold.

21. A perusal of the valuation report given by I.T.C.O.T. for the land in question, as found in page 1 to 8 of the paper book, would indicate the following:

I. Location of the property:1. Village and Survey No.: 1. Kilai Village—294, 295, 296, 297 and

3302. Ulundai Village—368, 369, 370, 373 and 375

II. Boundaries of the property:North : Wet landSouth : Village Road leading to Kilai VillageEast : Mango TreesWest : Munivardhan Naidu land

III. Type of road available atpresent : Village road leading

to Kilai VillageIV. Extent of land considered for valuation : 41.12 acresOut of the extent of 41.12 acres of land purchased by the company from

the open market, 13.28 acres of land is coming under Ulundai Village and 27.84 acres of land is coming under Kilai Village.

22. A perusal of the rough sketch attached to the report in page 6 of the paper book, would indicate that the entire land of 41.12 acres, which was under valuation, was shown as one piece of land. It was also stated therein that the individual survey numbers and the extent of land in each village were shown in the Annexure. As the title deeds of the property was not provided to I.T.C.O.T., it relied upon the documents made available with the

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previous owners of the land to ascertain the extent. It was further stated that since the Official Liquidator Office has not provided I.T.C.O.T. with any land documents, the extent of land, as ascertained from the previous owner, has been taken as the base for this report. The valuation report also contained 49 items of land totaling to an extent of 13.28 acres in different survey numbers in Ulandai village. Equally, item Nos.50 to 98 totaling to an extent of 27.84 acres were shown in different survey numbers in Kilai village.

23. From the very reading of the report of the I.T.C.O.T., it will be quite clear that the title deeds pertaining to the property were never handed over for valuation and the I.T.C.O.T. had relied upon the documents made available with the previous owners of the land to ascertain the extent and the same was used as the basis for the report. According to the report, there was a village road leading to Kilai Village. But, it could be seen from the available materials, though there is a road, the starting point of the road is actually blocked by the property in possession of the Government department. The rough sketch would indicate as if the entire land of 41.12 acres was contiguous and also in one piece. But the field map in the hands of the Court would clearly indicate that the properties are in two different villages.

24. Apart from that, with regard to the survey numbers, as found in page 8, S.No.294/1G measuring an extent of 1.18 acres; item No.12 to 21 relates to survey No.330/6A1, 330/6A2, 330/6A3, 330/6B, 330/6B2, 330/6B3, 330/6C1, 330/6C2, 330/6D1 and 330/6E1. All these pieces of land, as could be seen from the map, are actually not situate in the Ulandai village. Thus, the survey numbers and the extent of lands given by ITCOT attached to the report, were wrong and misleading. By placing the sketch along with said valuation report, the Official Liquidator, sought the permission of the Court for sale of the property. Pursuant to the orders of the Court, a sale notice was made in ‘THE HINDU’ and ‘DAILY THANTHI’ on 16.12.2007, where it was stated that the land mentioned in the Schedule belonging to M/s.Fidelity Industries Limited (in liquidation) on “As is where is and whatever there is basis”. In the description schedule, it was shown as “41.12 acres of free hold vacant land” which cannot but mean that the ownership was with the company in liquidation. Tender forms were issued, as found in page Nos.12 to 15 of the paper book. A perusal of the terms and conditions found in the tender form shows that the property has been described as vacant land to the extent of 41.12 acres, annexing the very same survey numbers and extent of lands, which were originally attached to the valuation report, that is, all wrong and misleading statements regarding the survey numbers along with the extent of properties, were actually found in the description of property annexed to the terms and conditions.

25. It cannot be denied that the appellant/auction purchaser, when he came forward to purchase the property in auction, should have relied on the particulars regarding the extent, survey numbers, etc., of the properties in question. Needless to say, the particulars regarding the extent and measure-ment were material particulars. The Court ordered sale. At the time of confirmation of sale, the first E.M.D. deposit was made on 6.2.2008 while the balance was paid on 12.2.2008. Out of the total sale consideration of Rs.15.20 crores, the 1st instalment was paid on 20th March, 2008 and the

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second instalment was due on 5.5.2008 but the same was made on 30.4.2008. The learned single Judge, by order dated 6.2.2008, confirmed the sale in favour of the appellant and also directed the Official Liquidator to receive Rs.1.50 crores deposited by the appellant by way of demand draft towards the part of earnest money deposit. The matter was called on 13.2.2008 for compliance. On 13.2.2008, it was represented by the Official Liquidator that as directed by the Court, the appellant, being the successful bidder, has paid the balance earnest money deposit of Rs.2 lakhs only and the Court made the following order:

“2. Therefore, call this matter on 24.3.2008 for reporting compliance of the payment of first 50% of the balance sale consideration. In the meantime, the Official Liquidator is directed to get copy of the documents which are said to be in the possession of Industrial Development Bank of India.

3. Learned Special Government Pleader (Civil Side) is also directed to get the Field Map of the two properties, namely, Ulandhai Village in Tiruvallur Taluk and Killai Village in Sriperumbudur Taluk and hand it over to the Official Liquidator. Since the successful purchaser desirous of scrutinizing the Field Map, the Special Government Pleader is directed to get the same at the earliest, not later than 6.3.2008 and hand it over to the Official Liquidator. The Official Liquidator on getting the document from Industrial Development Bank of India and Field Map from the Special Government Pleader, may hand over the same to the successful bidder by the Official Liquidator..

4. Call on 24.3.2008".26. Since the said direction of the Court was not complied with by the

Official Liquidator, there arose necessity for the appellant to file a memo on 24.3.2008, where it was reported that till that date the documents and the field map of the property were not handed over to the purchaser and the bankers of the purchaser were requesting for the same at the earliest for their local scrutiny and sanction of the loan. It was also further averred in the memo that as per the physical inspection, it was noticed that in one corner of the property, a High Tension Electric Tower was located/High Tension Wire was passing and hence, the appellant sought the directions against the Official Liquidator to collect the documents from IDBI pertaining to the property sold and hand over the same to the purchaser, to direct the Tahsildar, Sriperumbudur and Tiruvellore to give a certified copy of the field sketch of the survey numbers of the property, to permit the purchaser to survey the land and submit a detailed report.

27. On this memo, an order came to be passed by the Court on 30.4.2008, which reads as follows:

“....Thus, he made the final payment totalling in all to a sum of Rs.15,20,00,000/-. In the circumstances, the Official Liquidator is directed to hand over possession of the property of an extent of 41.12 acres situated at Kilai (Sriperumbudur Taluk) and Ulundai (Tiruvallur Taluk).

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At this juncture, it is pertinent to point out that even this date, all documents pertaining to the property have not been handed over by the Official Liquidator to the appellant.”

28. Much reliance was placed to a letter addressed by the appellant on 20th June,2008 to the Official Liquidator stating to the effect that the appellant has taken possession of the entire property and all documents in the hands of the Official Liquidator were handed over. The said letter dated 20.6.2008 reads as follows:

“In compliance to the order dated 30.4.2008 you have handed over the possession of the property and 26 original documents pertaining to the subject property on 12.6.2008. In respect of the possession of the property, it was noticed that the land is in irregular shape and no boundary stones are available anywhere in the site and the lands are located at two villages. Though there was difficulty in identifying the correct location and the extent of lands without the boundaries, we have taken possession of the property on good faith”.

29. This letter would clearly indicate that though it was stated that the possession of the property was taken, the properties could not be identified and the possession was also taken on good faith. It was also stated in the very same letter that only 26 documents were given and that would be to an extent of approximately 20 acres and the documents pertaining to the balance of 21 acres and odd were not handed over to the appellant and the delay in handing over of the documents and the correct extent of the land fixing the boundaries was causing huge loss to the company day by day and even in that letter, the appellant has requested the Official Liquidator to hand over the correct extent of land with boundaries by engaging the services of the concerned revenue officials to locate the lands, fix the boundary and to survey the lands and also to hand over the original documents in respect of remaining 21 acres of land and not to disburse the sale consideration to the secured creditors, pending issues. Under such circumstances, the said applications, namely, Company Applications 1953 to 1956 of 2008 were taken, seeking the above mentioned reliefs, on 30th June, 2008.

30. Pending applications, on 16th July,2008, the learned single Judge has made the following order:

“2. In the circumstances, the Official Liquidator is hereby directed to take the assistance of the Tahsildar of Tiruvellore Taluk and Sriperumbundur Taluk to survey the lands and file a report on 28.7.2008. The successful purchaser has agreed to bear the charges for surveying the land....”

31. The appellant has also filed additional affidavits complaining of non-delivery of the records and the vast discrepancies found in the survey numbers and also the land. When a report was called for from the Official Liquidator, he filed a report in October, 2008, which indicated the following facts;

“When the land was surveying with the help of surveyor, the discrepancies were noticed.(a) In so far as the piece of land at Ulundai village is concerned,

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(i) It is a fact that a big pylon carrying high tension wires (40,000 volt.) was erected in S.No.375/11 and high tension wire going through S.No.375/10 and 375/9 and the total land involved was 0.59 acres. The same came in one corner of the land as per the Survey and the Field Map;

(ii) As per the revenue records, the land of 0.09 acres in S.No.353/9 was not demarcated when the State Government allotted some lands to local individuals, a water tank and TV room (community) was also constructed. This vacant land was coming at one end of the land virtually projecting out of the land of the company, as could be seen from the field map produced;

(iii) An extent of 0.13.5 acres in S.No.369/2 stood in the name of individuals which was in the middle of the impugned land. The purchaser can verify the revenue records thoroughly and if it was in the name of an individual he might negotiate with the concerned individuals for purchase;

(iv) The purchaser also brought to the notice of the Official Liquidator the discrepancies found in the revenue records vis-a-vis documents furnished to them. As both the lands were in the name of the Company, the purchaser might take up the matter with the revenue authorities to indicate the correct survey numbers, extent of land etc., in their records. This Court may also direct the revenue authorities to do the needful.

(v) In so far as the documents in respect of 20 acres, it was submitted that the Ex-Directors have not handed over all the documents to the Official Liquidator nor they have informed the Official Liquidator whom the documents might be available. The Ex-Directors have not co-operated with the Official Liquidator in that regard. In so far as the execution of 0.68 acres in S.No.375/9, 375/10, 375/11 and 353/9, the Court might determine the issue and give directions accordingly.

(b) In so far as the land at Kilai village is concerned, (i) The land to an extent of 2.33 acres of S.No.330/7 as per the

documents and 2.16 acres as per the revenue records is classified as ‘Cherry Natham’ and the purchaser has requested re-classification of the said land which was possible only by the State Government. Hence, the Court might consider issuing a direction to the Government of Tamil Nadu for re-classification of the land in accordance with law. Since the land is situate in the middle of the land purchased, the purchaser will be put to hardship, if not reclassified.

(ii) It is also the fact that the entry/entrance to the site part of S.No.330 is designated as Government land and does not belong to the company in liquidation. This is the only entrance available to the impugned lands. Hence, the Court might direct the Govern-ment of Tamil Nadu to consider giving the land on lease or sell the land to the purchaser as the case might be, as desired by the purchaser.

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32. The Official Official Liquidator at the final part of the report has stated as follows:

“That the Official Liquidator submits there are so many discrepancies pointed out by the purchaser based on the documents furnished by the Official Liquidator and Revenue records etc., it is not clear why I.T.C.O.T. who has valued the lands has not pointed out even one discrepancy especially regarding entrance to the land and the land designated as ‘Cherry Natham’.In the light of the foregoing circumstances and as the sale is to the value of Rs.15.20 crores, the purchaser is raising many serious issues, it is submitted that the First Leasing Company of India Limited the secured creditor who is having exclusive charge on the land may be served notice of this application as well as the Official Liquidator’s report seeking detailed response as to how they lent money on the strength of this impugned land. So far their role in confirmed to demand the money from the Official Liquidator”.

33. The very reading of the above report filed by the Official Liquidator, who moved the initial report stating that he has taken possession of the property and pursuant to which it was sold to the appellant, makes it evident that there was a high tension wire going through the survey fields in question, covering 0.59 acres in Ulundai village and 0.09 acres was demarcated for a water tank and TV room, which was also constructed, 0.13.5 acres of land was in the name of the individuals; that in so far as the return of documents in respect of 20 acres, the Official Liquidator could not secure the documents and hence, he could not hand over possession to the purchaser and in so far as the land at Kilai village was concerned, 2.16 acres, a part of the land in question, was classified as ‘Cherry Natham’ and for the purposes of re-classification, the Court has to make necessary directions to the Government of Tamil Nadu and if not re-classified, the purchaser would be put to hardship since it is in the middle of the land sold; that in so far as entry/entrance to the site, it was designated as a Government land and did not belong to the company and hence, the Court could issue a direction to the Government of Tamil Nadu to give that piece of land on lease or sell the land to the appellant purchaser. The crowning circumstance noticed by the Court is that the Official Liquidator has stated that while such discrepancies were noticed, it was not clear why I.T.C.O.T. gave such a valuation report and how First Leasing Company of India Limited, the secured creditor, has availed loans on the strength of the impugned land.

34. It is contended by the respondents before the learned single Judge and equally here also that the sale was not in furtherance of the sale notice and even assuming that the sale took place as such, there was a long interval available for the appellant purchaser to verify all information and particulars regarding the property in question, since it is a case where the doctrine of Caveat Emptor (purchaser beware) would apply and not the doctrine of uberrimae fidel (in good faith). As could be seen from the available materials, originally on 4.1.2008 there was only one bidder and in view of the deficiency of offers, the same was adjourned to 1.2.2008, that was, on the representation on behalf of the prospective buyers on 24th January, 2008 and

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hence, it would be quite clear that the offer made by the appellant was in furtherance of the sale notice.

35. As rightly contended by the learned senior counsel for the respondents that it is not a contract in uberrimae fidel since there was no fiduciary relationship between the Official Liquidator on the one side and the appellant purchaser on the other side. It is also true that the purchaser cannot rest his case under Order 21, Rule 91 of C.P.C. to set aside the sale. In the judgment reported in (1971)1 SCC 757 (cited supra), the Supreme Court has held as follows:

“3. To begin with it was contended that there is no warranty of title in an auction sale. This general contention seems to us to be well-founded because it is axiomatic that the purchaser at auction sale takes the property subject to all the defects of title and the doctrine caveat emptor (let the purchaser beware) applies to such purchaser. The case of the judgment-debtor having no saleable interest at all in the property sold such as is contemplated by Order 21, Rule 91, CPC is, however, different and is not covered by this doctrine”.

36. Placing reliance on a judgment rendered by the Apex Court in Union Bank of India v. Official Liquidator, (1994) 1 SCC 575, and also making emphasis on ‘as is where is and whatever there is basis’, the learned senior counsel for the 1st respondent would submit that the sale by the Official Liquidator did not mean that he held out any warranty or guarantee in respect thereof and hence, it was distinguishable from the sale effected by the individuals selling immovable properties. It would be more apt and appropriate to reproduce the following part of the judgment of the Apex Court;

“13. In our view, the complete answer to Triputi’s allegation in regard to the failure of the Official Liquidator to hand over to it possession of certain properties which were sold to it, which, according to it, the company in liquidation did not even own, is contained in clause (2) of the Terms and Conditions of Sale upon the basis of which the property and assets of the company in liquidation were sold by the Official Liquidator to Triputi under the orders of this Court. Clause (2) reads thus:

“2. The sale will be as per inventory list on ‘as is where is basis’ and subject to the confirmation of the Hon’ble Supreme Court of India. The Official Liquidator shall not provide any guarantee and/or warranty in respect of the immovable properties and as to the quality, quantity or specification of the movable assets. The intending purchaser must satisfy themselves in all respect as regards the movable and immovable assets, as to their title, encumbrances, area, boundary, description, quality, quantity, and volume etc. and the purchaser will be deemed to offer with full knowledge as to the description, area etc. of the properties and defects thereof, if any. The purchaser shall not be entitled to claim any compensation or deduction in price on any account whatsoever and shall be deemed to have purchased the property subject to all encumbrances, liens and claims including

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those under the existing legislation affecting labour, staff etc. The Official Liquidator shall not entertain any complaint in this regard after the sale is over. Any mistake in the notice inviting tender shall not vitiate the sale.”

(Emphasis supplied)14. When the Official Liquidator sells the property and assets of a

company in liquidation under the orders of the Court he cannot and does not hold out any guarantee or warranty in respect thereof. This is because he must proceed upon the basis of what the records of the company in liquidation show. It is for the intending purchaser to satisfy himself in all respects as to the title, encumbrances and so forth of the immovable property that he proposes to purchase. He cannot after having purchased the property on such terms then claim diminution in the price on the ground of defect in title or description of the property. The case of the Official Liquidator selling the property of a company in liquidation under the orders of the Court is altogether different from the case of an individual selling immovable property belonging to himself. There is, therefore, no merit in the application made on behalf of Triputi that there should be a diminution in price or that it should not be made liable to pay interest on the sum of Rs. 1 crore 98 lakhs.

37. A reading of the above clause in the said judgment would indicate that based on the terms and conditions of sale, the property and assets of the company in liquidation were sold and that the sale would be as per inventory list on ‘as is where is basis’ and subject to the confirmation of the Hon’ble Supreme Court of India. The clause also made it clear that the Official Liquidator should not provide any guarantee or warranty in respect of the immovable properties and as to the quality, quantity or specification of the movable assets and it also made clear in the terms that the intending purchaser must satisfy themselves in all respect as regards the movable and immovable assets, as to their title, encumbrances, area, boundary, description, quality, quantity and volume etc., and the purchaser would be deemed to offer with full knowledge as to the description, area, etc. of the properties and defects thereof, if any. But in the instant case, the collateral terms and conditions issued by the Official Liquidator in the present case read as follows:

“12. All the prospective buyers desirous of submitting tender for purchase of the assets are to satisfy themselves about the condition of the assets.”

38. In the judgment rendered by the Supreme Court in (1994) 1 SCC 575, wherein the terms and conditions stipulated, the Apex Court has made it clear that the intending purchaser should satisfy in respect of the title, description encumbrances, area, boundary, description, quality, quantity, etc. and the purchaser would be deemed to offer with full knowledge as to the same. But, in the instant case, in the terms and conditions as shown above it was stated that the purchasers were to satisfy themselves about the conditions of the assets. It is true that the Official Liquidator did not hold out a warranty or guarantee when a sale of an immovable property was made by

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him. It was urged by the respondents’ side that it is a fit case where the doctrine of caveat emptor (purchaser beware) would apply to the present facts of the case. The Court is of the considered opinion that this doctrine, which is ordinarily applicable, cannot be extended to a case, where the vendor did not have title to the property. As could be seen above, in respect of a piece of land in the middle of the land to an extent of 2.16 acres, it is described as ‘Cherry Natham’, and the title of the property, during the relevant time, was not with the company in liquidation. Apart from that, the piece of land situate in the front point of the road was actually Government poramboke in which also the company under liquidation did not have the title over the property. Further, in respect of some pieces of land, the title of the property vested with individual owners, who had nothing to do with the company under liquidation. Under such circumstances, the Court is of the considered opinion that the doctrine of caveat emptor cannot be extended to the present case. The Official Liquidator is required to disclose all material facts within his knowledge and should not suppress any of the information regarding the nature, description, extent of the property, the non-availability of the title deeds, interest of the company in liquidation in the properties and also the encumbrances if any. As indicated above, the descriptions of the properties, as found in the sale notice, pursuant to which the offer was made by the purchaser and the sale by the Official Liquidator, were erroneous.

39. The Official Liquidator has taken the services of I.T.C.O.T. for valuation of the property and on the strength of its report, the upset price was fixed. The report of I.T.C.O.T. would clearly indicate that the sale deeds were not produced by the Official Liquidator and on inspection and verification of the property, the report was prepared on the basis of the enquiry made with the previous owners. Even the rough sketch produced shows that the property did not have the frontage. It was the contentions put forth by the respondents’ side that in the sale notice it was made clear that the property was sold ‘as is where is and whatever there is basis’ and, hence, whatever be the discrepancies found, the appellant purchaser should not complain but take the property as it is. No doubt, the sale notice contained the clause ‘as is where is and whatever there is basis’. But, the Official Liquidator should not be permitted to take shelter under the clause in a case where the company under liquidation had no title to sell in respect of the part of the property and there were lot of mis-descriptions in respect of the property and the survey numbers were found to be different. Even the Official Liquidator has candidly admitted that an extent of 2.33 acres of land in S.No.330/7 was classified as Cherry Natham and the Court has to issue a direction to the Government for re-classification of the land in accordance with law. It is pertinent to point out that he has stated in the report that the said land is in the middle of the land purchased and the purchaser would not be put to hardship, if not reclassified. He has also stated that the entry/entrance to the site part of S.No.330 was designated as Government land and it did not belong to the company in liquidation and that was the only entrance available to the impugned land and hence, the Court has to give a direction to the Government of Tamil Nadu to consider giving the land on lease or sell the land to the purchaser. The Court is afraid to allow the Official Liquidator to get shelter under the clause that the property was sold

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‘as is where is and whatever there is basis’ or under the doctrine of Caveat Emptor.

40. In so far as the possession of the property is concerned, the Official Liquidator approached this Court for sale of the property with a report that he has taken possession of the immovable property of the company along with the materials available. Equally a letter dated 20.6.2008 was addressed by the appellant/purchaser to the Official Liquidator stating that pursuant to the order dated 30.4.2008, the possession of the property was handed over along with 26 original documents; but it was difficult to identify the correct location and the extent of the lands without the boundaries; but they have taken possession of the property on good faith. All the materials placed before the Court would clearly indicate that neither the Official Liquidator, as per the report, has taken possession nor the appellant/purchaser has taken actual possession of the property though it was recorded so and hence, it will be quite clear that the Official Liquidator was under the mistaken belief that the possession of the entire property was in the hands of the company in liquidation and he sought permission of the Court for sale making such a report and equally on the belief that that possession of the entire land was with the company in liquidation, the appellant/purchaser also made his offer. Thus, both of them were under the misapprehension and also made a mistake as to the possession of the property and thus, it was a common mistake. Thus, both parties to the sale were under a mistake in respect of possession of the property which was one of the essential ingredients of the sale. It is not a case where the parties were disputing as to the value of the property. The mistake noticed was a common one to both the parties entertained as to the possession of the entire property and a part of the property, as pointed out above, was actually in the hands of the Government and also with third parties. It is true that a sale has been made in respect of 41.12 acres of land in respect of the notified survey number and extent thereon. But it is certain that the Official Liquidator cannot execute any sale certificate in respect of the survey numbers and extents which were not originally sold.

41. An identical situation arose before the High Court of Bombay in Jaikisandas Balchand Pamnani and another v. Municipal Corporation of Greater Bombay and others reported in AIR 1991 Bom. 345, in which case the auction sale made by the Official Liquidator was sought to be set aside under Order 21, Rule 90, C.P.C., on the basis of the mis-description of the property in the sale proclamation and the sale was set aside on that ground. Order 21, Rule 90 of C.P.C. reads as follows:

“Order 21: Execution of Decrees and others:90. Application to set aside sale on ground of irregularity or fraud.—

(1) Where any immovable property has been sold in execution of a decree, the decree holder, or the purchaser, or any other person entitled to share in a rateable distribution of assets, or whose interests are affected by the sale, may apply to the Court to set aside the sale on the ground of a material irregularity or fraud in publishing or conducting it.

(2) No sale shall be set aside on the ground of irregularity or fraud in publishing or conducting it unless, upon the facts proved, the

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Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud.

(3) No application to set aside a sale under this rule shall be entertained upon any ground which the applicant could have taken on or before the date on which the proclamation of sale was drawn up”.

42. For the application of the above provision, the party, who is seeking to set aside the sale, must specifically plead and prove that there was not only the material irregularity but he has also suffered substantial injury. It was contended by the appellant’s side that the provision under Order 21, Rule 90 of C.P.C. has got application to the present facts of the case, since there was not only material irregularity but also there was substantial injury to the appellant. But the respondents contended contrary. In the instant case, it is noticed that in the description of the immovable property, there was a positive assertion by way of Annexure to the tender terms and conditions and, as narrated above, they were thoroughly erroneous, misguiding and misleading. The act of the Official Liquidator in mis-describing the property and including the survey numbers of land, which admittedly did not belong to the company under liquidation, can neither be ratified nor sanctified on the ground that he was only an instrument in the hands of the Court in making the auction sale and also he could act only on the information available to him at the time of issuing tender for sale and making publication therefor.

43. Much was commented by the respondents that there was sufficient time in the hands of the appellant/purchaser, during which, he should have investigated the title and all relevant particulars about the property, which he offered to purchase. It is pertinent to point out that subsequent to the acceptance of the bid and payment of initial earnest money deposit, the appellant has filed a memo seeking for verification of the title deeds, but it was the Official Liquidator, who opposed the same that the purchaser could be permitted only after the remittance of the entire sale consideration. Contrarily, after payment of the entire sale consideration by the appellant, the Official Liquidator has taken a different stand that only 26 documents were available in respect of the property and the sale was made only ‘as is where is and whatever there is basis’ and hence, the purchaser could not make any complaint thereof. The contention put forth by the respondents that in view of the voluminous work, the Official Liquidator could not investigate into the title of the properties, cannot be accepted even for a moment for the simple reason, in the instant case, he has engaged the services of I.T.C.O.T. Consultancy and Services Limited, with whom the valuation of the property was entrusted and the agency has also been paid for that purpose. While there is a statutory obligation on the part of the Official Liquidator to verify the title of the properties of the company in liquidation, which is brought for sale, the Official Liquidator has miserably failed in his duty. He has neither verified the title of the properties, which are brought for sale, nor possession of the property even after the valuation report was filed by I.T.C.O.T. From the above, it is quite clear that the Official Liquidator has not even verified the report of the I.T.C.O.T., but placed before the Court along with his report and has obtained an order for sale of the

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property. The report filed by the Official Liquidator, as shown above, would stand a good piece of evidence as to the mis-description of survey number and ownership of the property. Had the Official Liquidator made a disclosure of all the material aspects after the payment of the earnest money deposit, the Court would not have ordered the sale and if there was disclosure, the appellant could not have ventured into make an offer. Even after the payment of earnest money deposit, he has filed a memo seeking reliefs and there were directions issued by the Court to the Official Liquidator to do, but the Official Liquidator, instead of following the orders of the Court, filed a detailed report accepting the discrepancies, along with making an admission that the land to an extent of two acres and odd was classified as ‘Cherry Natham’, which is in the middle of the property, and the same has to be re-classified and that in so far as the entry point was concerned, the property belongs to the Government. The contention put forth by the appellant is that in respect of 2.16 acres classified as Cherry Natham, though it could be re-classified, there was a proposal for exchange made by the Government. But, at this juncture, it is pertinent to point out that the re-classification of Cherry Natham was possible if the private owner was willing to provide for extension of village site in exchange for a land at the disposal of the Government. In so far as the entry point of the road is concerned, the Official Liquidator in his report has stated that the Court, if felt necessary, may issue directions to the Government to consider the same either for sale or lease out the same to the appellant. The appellant has specifically averred in para 13 of the affidavit, which reads as follows:

“13. It is submitted that unless the Hon’ble Court give suitable directions we will be put to great loss and hardships. Further if the Official Liquidator is not able to handover all the documents and locate the lands by surveying within a period of two weeks, we seek this Hon’ble Court to nullify the sale and refund of sale consideration with interest..”.

From the said averments made in the affidavit, it will be quite clear that the appellant has pleaded material irregularity and also the substantial injury caused to him. The said averments would stand a good proof for the same. Under such circumstances, the respondents cannot be permitted to say that necessary requisites for setting aside the sale were not pleaded and proved.

44. The contention put forth by the respondents’ side that the value of the property has fallen down and under such circumstances, the applications were a device by the appellant in order to wriggle out of the contract, cannot be accepted for the two reasons,

firstly, even before making payment of the balance of earnest money deposit, the request for handing over possession and for making survey and also for delivery of documents was made by the appellant; but at that juncture, it was resisted by the Official Liquidator that it could be done only after the payment of the entire sale consideration; and

secondly, the appellant has taken four applications, namely, (a) to trace the original documents pertaining to the property and hand over the same, (b) to engage the services of revenue officials to locate the lands and fix the boundaries; (c) not to disburse the sale proceeds to the creditors till handing over of the balance of documents; and (d) in the event of the non-compliance

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of the above, to issue a direction to the Official Liquidator to return the sale consideration along with interest.

This would be the indicative of the fact that the intention of the appellant was not to come out of the contract but to stick to the sale, if he was given possession and documents pertaining to the property. On the contrary, the Official Liquidator vehemently opposed the first three reliefs. Under such circumstances, the appellant had no option but to press the fourth relief, namely, setting aside the sale and refund of the consideration amount and hence, the said contention put forth, cannot be accepted.

45. In view of the material irregularities noticed, which would go to the root of the sale effected by the Official Liquidator, and the appellant, who believed the sale tender notice and the report of the valuer, which were with mis-descriptions, suppression of necessary material particulars and suggestive of things, which were not available, made the offer to purchase and despite the memos and orders of Court neither the title deeds pertaining to the property were given nor he was put in actual possession and thus, he has incurred the substantial injury. Under such circumstances, the Court is of the considered opinion that it has to exercise its inherent powers conferred under Rule 9 of the Companies (Court) Rules, 1959, which reads as follows:

“9. Inherent Powers of Court.—Nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to give such directions or pass such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court”.

46. Hence, for the reasons stated above, the auction sale made by the Official Liquidator on 6.2.2008 is set aside and subsequently confirmed by the Court is also set aside and the Official Liquidator is directed to return the sale consideration to the appellant. The Court is of the considered opinion that it is not a fit case, the Court could order interest on the sale consideration till the time of passing of the order, since the company is already under liquidation.

In the result, O.S.A.No.88 of 2009 is allowed, setting aside the sale with direction to the Official Liquidator to return the entire sale consideration along with accrued interest in the bank deposit, to the appellant purchaser, within a period of four weeks herefrom, in default, the sale consideration shall carry interest at the rate of 12% therefrom.

Since the relief is granted to the appellant in O.S.A.No.88 of 2009, all other appeals do not arise for consideration and are disposed of. Consequently, connected M.P. is closed. The parties shall bear their costs. The above order will not impede the Official Liquidator to approach the learned single Judge for fresh auction sale, taking into consideration the aforesaid observations and after following all procedural formalities, as required in law.

Appeals allowed.

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