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TNCJ 20 1 2010 JanPar 2 by PoOwbFh

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									                                 [2010 (1) T.N.C.J. 121 (Mad)]
                                     MADRAS HIGH COURT
BEFORE:
             M. JAICHANDREN, J.
                             A. SRINIVASAN AND ANOTHER                              ...Appellants
                                               Versus
                          THE TAHSILDAR                                         ...Respondents
             [Second Appeal No. 1484 of 1995, decided on 16 November, 2009]
                                                                th


       Tamil Nadu Encroachment Act, 1905—Sections 7, 10 and 10-A—Civil Procedure
Code, 1908—Section 79 and Order 27, Rule 5-A—Notice against encroachment—Plaintiff
challenged notice and claimed to be rightful owner and also sought injunction—Plaintiff
claiming that he constructed structure on land after obtaining permission—Held, land which
is „Gramanatham‟ cannot be considered ipso facto as Government property, hence notice
cannot be issued under Act of 1905—Further another land which is „Poram-boke‟ for which
notice could be issued—Hence, notice issued for first item of property is invalid.
                                 (Paras 27 to 31)
       Case law.—2004 (3) CTC 270; 2002 (3) CTC 221—referred.
       Counsel.—Mr. S.V. Jayaraman, for Mr. S.N. Kirubanandam, for the appellants; Mr. V.
Srikanth, Additional Government Pleader, for Mr. R. Muthian, Government Advocate, for the
respondent.
                                              JUDGMENT
       M. JAICHANDREN, J.—This second appeal has been filed against the judgment and
decree, dated 31.1.1995, made in A.S.No.197 of 1994, on the file of the IVth Additional
City Civil Court, Madras, confirming the judgment and decree, dated 24.2.1994, made in
O.S.No.6499 of 1991, on the file of the Vth Assistant City Civil Court, Madras.
       2. The plaintiffs in the suit, in O.S.No.6499 of 1991, are the appellants in the present
second appeal. The defendant in the suit is the respondent herein. The plaintiffs had filed
the suit, in O.S.No.6499 of 1991, praying to declare that the notice, dated 3.9.1991, issued
by the defendant is illegal, arbitrary and non est in law and for a permanent injunction
restraining the defendant and others from, in any manner, interfering with the plaintiffs
enjoyment of the plaint schedule mentioned property and for costs.
       3. The plaintiffs had stated that they are the owners of the land to an extent of 3
grounds and 640 sq.ft. or 22 cents, in Survey No.136/1, of Koyambedu Village. The
plaintiffs had stated that, originally, a larger extent of property was in the occupation and
enjoyment of one Rathnam of Koyambedu Village. Rathnam had settled the said property,
bearing Survey No.136, in favour of his sons, by a registered settlement deed, dated
12.11.1967. They had, in turn, sold an extent of 3 grounds and 640 sq.ft. or 22 cents in
Survey No.136, (present Survey No.361), of Koyambedu Village, in favour of the plaintiffs,
by way of a registered sale deed, dated 27.1.1982. After acquiring the said land, the
plaintiffs have been in peaceful possession and enjoyment of the said property, which has
been morefully described in Item No.1 of the plaint schedule mentioned property.
       4. The plaintiff had further stated that after obtaining the necessary approval of the
authorities concerned, they had put up a superstructure in the said property by spending a
huge amount of money. The building constructed by the plaintiffs in the suit property is at
present a Kalyan-amandapam in the name of „A.S.R. Kalyana Mahal‟. It has been further
stated that item No. 2 of the plaint schedule mentioned property is an extent of 7 grounds
and 623 sq.ft. bearing T.S.No.1, Block No.6, Naduvakkarai Village. The said property had
also been in the possession and enjoyment of the plaintiffs, as the said property had been
in the possession of their vendors. The plaintiff had further stated that after constructing
the superstructure in item No.1 of the plaint schedule mentioned property, they have
constructed a temporary wall in the northern end of item No. 2 of the plaint schedule
property to prevent possible encroachment from anti social elements. Even though the
plaintiffs had been in possession and enjoyment of the plaint schedule mentioned property,
the defendant had issued a threat stating that he would demolish the construction in the
schedule mentioned property stating that the property belongs to the State Government.
The defendant had issued a notice, dated 3.9.1991, calling upon the plaintiffs to raise their
objections, if any, on or before 12.2.1991. Through the said notice, the defendant had
asked the plaintiffs to vacate the land in their possession, since they had encroached upon
the said land. Thereafter, on 11.9.1991, the defendant had visited the plaint schedule
mentioned property and threatened the plaintiffs that he would demolish the building and
that he would take necessary action to evict the plaintiffs from the suit property. In such
circumstances, the plaintiff had filed the suit in O.S.No.6499 of 1991, on the file of the Vth
Assistant City Civil Court, Madras.
        5. In the written statement filed on behalf of the defendant, it has been stated that
Item.No.1 of the schedule to the plaint had, originally, belonged to one P.R. Murugesan and
others, as per the records maintained at the office of the defendant. It is not known as to
how the plaintiffs, vendors had obtained the property. It is for the plaintiffs to establish that
they had got a valid title in respect of the suit property. The lands in question have been
classified as „Gramanatham‟, which could be used only for the residential purposes.
However, the plaintiffs had constructed a Kalyanamandapam in the suit property and it had
been used for commercial purposes. With regard to item 2 of the schedule to the plaint, the
defendant states that these are Government lands and the plaintiffs had constructed a
huge compound wall in the said property. It cannot be said that the suit property had been
in the possession of the vendors of the plaintiff, nor is it in the possession of the plaintiffs.
Further, the plaintiff have no interest in protecting the Government lands from anti-social
elements.
        6. The defendant had also stated that no threat had been issued to the plaintiff. Only
a notice under the Tamil Nadu Land Encroachment Act, 1905, had been issued to the
plaintiffs and a reply to the said notice had also been received from the plaintiffs. Since the
suit is premature in nature, it is liable to be dismissed.
        7. In the additional written statement filed by the defendant, it has been stated that a
notice, under Section 7 of the Tamil Nadu Land Encroach-ment Act, 1905, had been issued
to one A.Srinivasan, son of Ayyappanaidu and S.Rukmaniammal, wife of A.Srinivasan,
residing at No. 82, Bricklin Road, Ottery, Madras. The notice had been served on them, on
4.9.1991. In the reply sent by them, it has been stated that the land in Survey No.136/1
Part of Koyambedu Village, with an extent of 3 grounds and 640 sq. ft., had been
purchased by way of a sale deed in the year, 1984. However, the encroachers had not
produced any document to show as to how the suit property came to be possessed by the
vendors of the plaintiffs. From the documents shown by the encroachers, it was seen that
they had only certain right of enjoyment, which cannot be stated to be an absolute title, in
respect of the property concerned. The suit property in Survey No.136/1, part of
Koyambedu Village, is a „Gramanatham‟. The plaintiffs, who are encroachers in the suit
property, have been utilising the property for non-residential purposes, unauthorisedly. They
had also raised a pucca wall in the Government land, in T.S.No.1 of Block No. 6,
Naduvakarai village. The encroachers are in illegal possession of the suit property, with the
intention of grabbing the valuable lands, which belong to the Government. In such
circumstances, the defendant had taken action, under Section 6 of the Tamil Nadu Land
Encroachment Act, 1905. Against the order passed, under Section 6 of the Act, there is a
right of appeal provided, under Section 10 of Tamil Nadu Land Encroachment Act, 1905. A
revision had also been provided, under Section 10-A of the Act, to the Government. There is
also provision for passing of an interim order of stay, under Section 10-B of the said Act.
Section 14 of the Act permits the filing of civil suits only in respect of the proceedings not
provided under the Act. The defendant had further stated that the suit filed by the plaintiffs
is not maintainable, since the Government had not been made as a party to the suit.
       8. In view of the averments made on behalf of the plaintiffs, as well              as the
defendant, the trial Court had framed the followings issues for consideration:
           (1) Whether the suit is not maintainable, since the procedure prescribed, under
                Section 79 of the Civil Procedure Code, had not been followed?
           (2) Whether the suit is not maintainable, since the suit had been filed without
                making the Government as a party to the suit?
           (3) Is the suit not maintainable, since it has been filed without exhausting the
                appellate and revisional remedies, provided under Sections 10 and 10-A of
                the Tamil Nadu Land Encroach-ment Act, 1905?
           (4) Whether the plaintiffs are entitled to the reliefs of declaration and
                permanent injunction, as sought for in the suit?
           (5) Whether it is true that the plaintiffs are in enjoyment of the suit property
                having encroached upon the same?
           (6) What other reliefs, the plaintiffs are entitled to?
       9. The trial Court had found that the defendant in the suit had been examined as
D.W.1. In his evidence, the defendant had stated that notice, under Section 6 of the Tamil
Nadu Land Encroachment Act, 1905, had not only been issued to the plaintiffs, but the
notices had also been issued to the various persons, who had encroached upon the
properties, belonging to the Government. The notices, issued under Section 6 of the Act,
had been marked as Exhibits B-1 to B-24. Exhibit A-4 is an application submitted by the
plaintiffs requesting that the suit property may be given to them on lease and Exhibit B-25,
dated 18.9.1991, is the reply sent to the plaintiffs rejecting their request. Exhibit B-26 is the
copy of the town survey field register showing that the suit property is a river poramboke.
       10. The trial Court had further found that the claim of the plaintiffs is that they had
purchased the suit property from one Velaythuam, son of Rathnam and his family
members, for a valid consideration. Thereafter, they have been in possession and
enjoyment of the suit property. However, the plaintiffs had not filed any document to show
as to how Rathnam had got the property. No patta had been granted, either to Rathnam or
to his son, in respect of the suit property. Further, there is no evidence to show that they
had purchased the property from some one else. The plaintiffs had claimed that they had
purchased the suit property only because the said property had been in the possession of
the plaintiffs vendors. However, a document had been marked, as Exhibit B-28, to show
that one T.K. Murugesan and others were in occupation of the suit property, having
encroached upon the same.
       11. The trial Court had found that even though the plaintiffs had claimed title over
the suit property based on the sale deed, marked as Exhibit A-1, the plaintiffs had not
shown that a patta in respect of the suit property had been issued to them. Therefore, the
sale deed, marked as Exhibit A-1, cannot vest any right or title in respect of the suit property
with the plaintiffs. Therefore, the plaintiffs cannot ask for the reliefs, as sought for in the
suit, against the Government, without having any right or title in respect of the suit property.
       12. The trial Court had further found that the plaintiffs had admitted that the second
item of the suit schedule mentioned property belongs to the Government. Therefore, the
plaintiffs cannot claim any right in the property without obtaining the patta or any other
document granting them certain rights in the said property. In such circumstances, the
plaintiffs cannot claim any right in respect of the suit property against its rightful owner,
namely, the Government. Even though the plaintiffs had admitted that the suit property
belongs to the Government, they had not impleaded the Government as a party in the suit.
The suit had been filed only against the Tahsildar, who had issued the notice against them,
under the provisions of the Tamil Nadu Land Encroachment Act, 1905. Therefore, the suit is
not maintainable due to the reason of non-joinder of the necessary party, namely, the State
Government.
        13. The trial Court had further found that the plaintiffs could have filed an appeal
against the notice issued to them by the defendant, invoking Section 10 of the Tamil Nadu
Land Encroachment Act, 1905, and a revision, invoking Section 10-A of the Act. They have
not availed such statutory remedies provided under the said Act. Instead, they had filed the
present suit, in O.S.No.6499 of 1991, to declare that the notice, dated 3.9.1991, issued by
the defendant, as null and void. Further, the trial Court had held that even though the
plaintiffs had claimed that they had purchased the suit property, by way of a sale deed, for
valid consideration, they had not shown that the vendors of the plaintiffs had valid title to
the suit property. The fact that the suit property belongs to the Government had been
established by Exhibits B-26 and B-28. While so, no valid title had been passed to the
plaintiffs from their vendors, in respect of the suit property. In such circumstances, the trial
Court had declined to grant the reliefs of declaration and permanent injunction, as prayed
for by the plaintiffs. Accordingly, the trial Court, by its judgment and decree, dated
24.2.1994, made in O.S.No. 6499 of 1991, had dismissed the suit filed by the plaintiffs.
        14. Aggrieved by the judgment and decree, dated 24.2.1994, made in O.S.No. 6499
of 1991, the plaintiffs in the suit had filed the first appeal in A.S.No. 197 of 1994, on the
file of the IVth Additional City Civil Court, Madras.
        15. The first appellate Court had framed the following point for consideration:
          “Whether the appeal has to be allowed by setting aside the judgment and decree of
          the lower Court, dated 24.2.1994, and the suit has to be decreed as prayed for?”
        16. The first appellate Court had found that the first plaintiff, who had deposed as
P.W.1, had stated in his evidence that the first item in the plaint schedule mentioned
property had originally belonged to one Rathnam and he had settled the property in favour
of his son, under a settlement deed, dated 12.11.1967, marked as Exhibit A-5. The settlees
had enjoyed the property as their own till they had alienated the same in favour of the
plaintiffs, under a sale deed, marked as Exhibit A-6 executed by Velayutham and others in
favour of the plaintiffs. Insofar as the second item in the plaint schedule mentioned
property is concerned, the first plaintiff had stated that it is adjacent to the first item of the
plaint schedule mentioned property, with an extent of 7 grounds and 623 sq.ft. He had also
stated in his evidence that the Madras Metropolitan Development Authority had also
granted the approval and he had constructed a Kalyanamandapam in the suit property
based on the approval of the said authority, as it is in a commercial zone. However, the
defendant in the suit, who had deposed as D.W.1, had stated in his evidence that he had
sent a notice to 24 persons, who were the encroachers in the survey number pertaining to
the suit, under Section 6 of the Tamil Nadu Land Encroachment Act, 1905. The said notices
had been marked as Exhibits B-3 to B-24. Further, the plaintiffs had given an application,
marked as Ex.A-4 requesting an order to be passed granting lease of the suit site in their
favour. The said request had been denied by an order, dated 18.9.1991, marked as Exhibit
B-25. The first appellate Court had further found that from the evidence available on record
and by the pleadings of the plaintiffs, they had admitted that items 1 and 2 of the plaint
schedule mentioned property belonged to the Government.
       17. The first appellate Court had also noted that it is the case of the plaintiffs, as well
as the defendant, that item No.1 in the suit schedule mentioned property has been
classified as “Gramanatham”. Since the plaintiffs had encroached upon the Government
property, an eviction notice marked as Exhibit A-3 had been issued to them, under the
provisions of the Tamil Nadu Land Encroachment Act, 1905. The first appellate Court had
also held that the plaintiffs‟ second item of the suit schedule mentioned property is a
poramboke land. However, Exhibit A-3 notice had been issued to the plaintiffs by the
defendant for both the two items of the plaint schedule mentioned property. Even though
the plaintiffs had claimed that they had purchased the first item of the suit scheduled
mentioned property from Velayutham and others, who were in possession and enjoyment of
the property, having obtained the same from his father, Rathinam, under a settlement
deed, marked as Exhibit A-5, they had not shown any other documentary evidence to show
that the plaintiffs‟ vendor had valid title in respect of the suit property.
       18. By appreciating the evidence on record, the first appellate Court had come to the
conclusion that the plaintiffs had admitted that the properties shown in the plaint schedule
1 and 2 are belonging to the Government. However, the plaintiffs, who had claimed that
they had purchased the property from their vendors, based on the fact that their vendors
had been in possession and enjoyment of the said property, had not proved their title in
respect of the suit property, by sufficient evidence. The plaintiffs had stated that they had
purchased only the first item of the suit property from their vendors, who had been in
possession and enjoyment of the said property and therefore, they are having a valid title in
respect of the first item of the suit schedule mentioned property, However, the plaintiffs
had clearly admitted that item 2 of the schedule mentioned property is a poramboke land.
In such circumstances, the first appellate Court had come to the conclusion that the
plaintiffs had not substantiated their claim that they have a valid title in respect of the first
item of the suit schedule property. Further, in view of the fact that the plaintiffs had
admitted that the second item of the suit schedule mentioned property is a poramboke
land, the plaintiffs are not entitled to the reliefs sought for by them in their suit, in O.S.No.
6499 of 1991.
       19. The first appellate Court had also found that the plaintiffs had not followed the
provisions of Section 79 and Order 27, Rule 5-A of the Civil Procedure Code, by issuing the
necessary notice to the defendant before filing of the suit. The First appellate Court had
also held that the plaintiffs had not availed the alternative remedy provided under the
provisions of the Tamil Nadu Land Encroachment Act, 1905. Further, the Government,
which is a necessary party, had not been impleaded in the suit, as a defendant. In such
circumstances, the first appellate Court had confirmed the findings of the trial Court, while
dismissing the appeal, by its judgment and decree, dated 31.1.1995, made in A.S.No. 197
of 1994.
       20. Aggrieved by the judgment and decree of the first appellate Court, the plaintiffs
had filed the present second appeal. The second appeal had been admitted by this Court on
the following substantial questions of law:
          “(1) Whether the lower appellate Court has erred in not considering Exs.A-10, A-
                 11 and A-12 and the admission of D.W.1, while considering whether the suit
                 first item which is admittedly Gramanatham, as Government property?
           (2) Whether the Courts below ought to have followed 1959 (II) MLJ 513, which
                 holds that Gramanatham is not Government property?
           (3) Whether the lower appellate Court factually erred in observing that the
                 plaintiffs admitted that suit item No.1 belongs to Government?
           (4) Whether to the present case Order 27, Rule 5-A, C.P.C. would apply?”
       21. The learned counsel appearing for the appellants had submitted that both the
Courts below had erred in assuming that the appellants had admitted that both items 1 and
2 of the suit schedule mentioned properties are Government properties. In fact, the
appellants had contended that the first item of the suit schedule mentioned property is a
Gramanatham, and the second item of the suit schedule mentioned property has been in
the possession and enjoyment of the appellants‟ vendor, exclusively, from time
immemorial, without any interruption from any one. As such, the respondent has no
jurisdiction or authority to issue the notices, under Section 6 of the Tamil Nadu Land
Encroachment Act, 1905. The appellants had purchased the first item of the suit schedule
mentioned property by way of a sale deed from their vendors, for a valid consideration.
After having purchased the said property, the appellants had constructed a
Kalyanmandapam in the said property, with the approval of the Madras Metropolitan
Development Authority.
       22. The learned counsel appearing for the appellants had further submitted that in
the written statement filed by the defendant, he had admitted that the first item of the suit
schedule mentioned property is a Gramanatham. The defendant, who had deposed as
D.W.1, had, specifically, admitted in his deposition that Gramanatham is not Government
land and that it could be alienated by way of a Will, settlement or sale. In fact, the
appellants had purchased item No.1 of the suit schedule mentioned property by way of sale
deed, dated 27.1.1922, marked as Exhibit A-1.
       23. The learned counsel appearing for the appellants had relied on the following
decisions reported in 2004 (3) CTC 270 (The Executive Officer, Kadathur Town Panchayat v.
V. Swaminathan) and in 2002 (3) CTC 221 (Krishnamurthy Gounder v. Government of Tamil
Nadu) to show that „Gramanatham‟ does not belong to the Government. Therefore, the
appellants cannot be treated as encroachers and therefore, the provision of the Tamil Nadu
Land Encroachment Act, 1905, cannot be invoked by the defendant to evict the appellants
from item No.1 of the suit schedule mentioned property.
       24. The learned counsel appearing for the appellants had also contended that the
Courts below had erred in holding that the Government was the owner of Item No. 2 of the
suit schedule mentioned property. From the evidences of P.Ws. 2, 3 and 4, it could be seen
that the said property was in continuous possession and enjoyment of the appellants and
their predecessors. Consequently, the appellants had perfected their possessory title in
respect of the said property. Therefore, the notice issued by the defendant, under Section 7
of the Tamil Nadu Land Encroachment Act, 1905, is arbitrary, illegal and without
jurisdiction.
       25. The learned counsel appearing for the appellants had also contended that the
Courts below had erred in coming to the conclusion that the suit filed by the appellants is
not maintainable, due to non-joinder of necessary party, namely, the State Government. In
fact, the Government might have been a necessary party, if the appellants had filed the suit
to establish their title in respect of the suit property. Since the suit filed by the appellants, in
O.S.No. 6499 of 1991, was only to declare that the notice issued by the defendant is illegal
and void, and for a consequential injunction, the Government would not be a necessary
party to the suit. Further, only when the Government has been made as a party in a suit,
Section 79 of the Civil Procedure Code, 1908, would become applicable.
       26. The learned counsel appearing for the respondents had submitted that the
respondent has the power and jurisdiction to issue a notice to the appellants under the
provisions of the Tamil Nadu Land Encroachment Act, 1905. The learned counsel had
submitted that the suit filed by the appellants is bad in law for non-joinder of the necessary
party, namely, the Government. When alternative remedies are available, under the
provisions of the Tamil Nadu Land Encroachment Act, 1905, it is not open to the appellants
to file the suit seeking for the reliefs, as stated therein. The appellants had not shown any
evidence to substantiate their claims to establish that they had valid title in respect of the
suit property.
        27. From the evidence available on record, it is clear that the plaintiffs had admitted
that the suit property belongs to the Government. Therefore, the Courts below had rightly
come to the conclusion that the suit filed by the appellants is not maintainable and that the
reliefs, as prayed for by the appellants, in the said suit, cannot be granted.
        28. In view of the submissions made by the learned counsels appearing on behalf of
the appellants, as well as the respondent and on a perusal of the evidence available on
record and in view of the decisions cited by the learned counsel appearing for the
appellants, this Court is of the considered view that the Courts below had erred in denying
the reliefs prayed for by the appellants, in their suit, in O.S.No. 6499 of 1991. In the written
statement filed by the defendant, he had admitted that item No.1 of the suit schedule
mentioned property is classified as „Gramanatham‟.
        29. Further, from the decisions cited supra, it is clear that „Grama-natham‟ cannot be
considered, ipso facto, as Government property. Once it is found that item No.1 of the suit
schedule mentioned property is classified as „Gramanatham‟, it should be held that it does
not belong to the Government. Therefore, there can be no doubt that the defendant cannot
invoke the provisions of the Tamil Nadu Land Encroachment Act, 1905. As such, the notice
issued by the defendant, under Section 7 of the Tamil Nadu Land Encroachment Act, 1905,
is invalid in the eye of law. Hence, there is no necessity to implead the Government as a
party to the suit, especially, since the appellants had not filed the suit for declaration of
their title, in respect of the suit property. Consequently, Section 79 of the Act would not be
applicable to the present case. In respect of item No.2 of the suit schedule mentioned
property, there is no serious contest from the side of the appellants to show that they have
prescribed title, by way of adverse possession, as claimed by them.
        30. The appellants had not shown sufficient evidence to support their claim that they
have prescribed title in respect of the said property, by way of adverse possession. Once it
has been admitted by the appellants that item No.2 of the suit schedule mentioned
property is a poramboke land, the defendant would be entitled to invoke the procedures
prescribed, under Section 7 of the Tamil Nadu Land Encroachment Act, 1905.
        31. Accordingly, the judgment and decree of the Courts below are set aside, insofar
as it relates to item No.1 of the schedule mentioned property. As such, the suit, in O.S.No.
6499 of 1991, is decreed insofar as it relates to item No.1 of the suit schedule mentioned
property. However, the notice issued by the appellants, in respect of the item No.2 of suit
scheduled mentioned property, cannot be held to be invalid in the eye of law. Hence, the
suit is dismissed, insofar as it relates to item No.2 of the suit schedule mentioned property,
by confirming the judgment and decree of the Courts below. Accordingly, the second appeal
stands partly allowed, as stated above. No costs. However, it is made clear that the
declaration of the notice, dated 3.9.1991, issued by the defendant in the suit O.S.No. 6499
of 1991 would not, in any way, prevent the concerned authorities to take appropriate action
against the plaintiffs in the said suit, in the manner known to law.
                                                                          Appeal partly allowed.



                                [2010 (1) T.N.C.J. 130 (Mad)]
                                    MADRAS HIGH COURT
BEFORE:
           S. RAJESWARAN, J.
RARANDHIMANGALAM PANCHAYAT
                          REP. BY ITS PRESIDENT                                 ...Petitioner
                                          Versus
                          THIAGARAJAN                                         ...Respondent
              [C.R.P. (PD) No. 1643 of 2008, decided on 18 November, 2009]
                                                            th


       Civil Procedure Code, 1908—Order 39, Rule 1—Injunction—Land in question are
village community lands and are used by public as Mayanam—Trespasser‟s possession as
well as unlawful possession could not be protected by Court even if person is found to be in
possession—Hence, plaintiff having no prima facie case to get order of interim injunction—
Thus, appellate Court erred is granting interim injunction.
                                                                          (Paras 18 and 23)
       Case law.—1997 (2) MLJ 584; 1994 (5) SCC 547; 1993 (3) SCC 161—referred.
       Counsel.—Mr. M.G.R. Prasanna, for M/s. Row & Reddy, for the petitioner; Mr. T.R.
Rajagopal, Senior Counsel, for Mr. D. Anandaraja, for the respondent.
                                           JUDGMENT
       S. RAJESWARAN, J.—The petitioner is challenging the Judgment dated 1.4.2008 made
in C.M.A.No.3 of 2008 on the file of Sub-Court, Nagapattinam reversing the order dated
6.2.2008 made in I.A.No.550 of 2007 in O.S.No.355 of 2007 on the file of the District
Munsif, Nagapattinam.
       2. The defendant in O.S.No. 355 of 2007 on the file of the District Munsif Court,
Nagapattinam is the revision petitioner before this Court. They are aggrieved by the order
of the appellate Court, namely Sub-Court, Naga-pattinam allowing C.M.A.No. 3 of 2008 filed
by the respondent/plaintiff herein and thereby granting an order of interim injunction till
the disposal of the original suit.
       3. The brief facts are as follows:
       The respondent/plaintiff filed O.S.No.355 of 2007 for permanent injunction
restraining the revision petitioner/defendant from in any manner interfering with the
respondent/plaintiff‟s possession of the suit property.
       4. According to the respondent/plaintiff, he purchased the suit property by two sale
deeds dated 6.1.2004 and 11.3.2004 for a valuable consideration and took possession of
the properties. He repaired the property and reconstructed the fences. He also cultivated
banana trees, coconut trees, etc. on the suit property and he also dug up a fish pond
wherein fingerlings were let in. The sub division of the survey field was done in the land
purchased by him and the land in R.S.No. 59/2 was sub divided as R.S.No. 59/2B. The
defendant/revision petitioner Panchayat was represented by its elected President Thiru
Muthukrishnan and he has some enemity towards the respondent/plaintiff. Therefore, he
instigated the revenue authorities to initiate action against him. On 26.10.2007, the
Revenue Divisional Officer, Nagapattinam and other revenue officials trespassed into the
suit schedule property and destroyed the crops like banana trees, etc. and damaged the Oil
engine and fish pond. Therefore, the respondent/plaintiff issued a notice to the revision
petitioner/defendant on 29.10.2007 for which, a reply was sent by the revision
petitioner/defendant on 12.10.2007. The case of the revision petitioner/defendant is that
the suit property is a Community property (Grama Samuthayam) which is not correct as per
the respondent/ plaintiff. Having failed in their attempt to trespass into the property and
dispossess the respondent/plaintiff from the suit schedule property, the revision
petitioner/defendant represented by its President again i.e., on 15.12.2007 attempted to
prevent the plaintiff while he was repairing and re-constructing the fences. However, the
respondent/plaintiff was able to ward off this attempt and feared that there would be
another attempt to trespass into the suit property. Hence, the respondent/plaintiff filed the
above O.S.No.355 of 2007.
       5. Along with the suit, the respondent/plaintiff filed I.A.No.550 of 2007 for interim
injunction. The revision petitioner/defendant filed a counter abusing the I.A.No. 550 of
2007. The trial Court by order dated 6.2.2008 dismissed I.A.No.550 of 2007 by holding that
the suit land is a Community land and therefore, the respondent/plaintiff is not entitled to
get an order of injunction.
       6. Aggrieved by the order of the trial Court dated 6.2.2008 in I.A.No.550 of 2007, the
respondent/plaintiff filed an Appeal in C.M.A.No.3 of 2008 and by order dated 1.4.2008,
the lower appellate Court reversed the order of the trial Court and allowed the Appeal
granting interim injunction till the disposal of the original suit. Challenging the order of the
lower appellate Court dated 1.4.2008, the defendant in the suit filed the above civil revision
petition under Article 227 of the Constitution of India.
       7. This Court on 7.5.2008 ordered notice of motion and also granted an interim stay
which was extended from time to time.
       8. Heard the learned counsel for the revision petitioner/defendant and Thiru
T.R.Rajagopalan the learned senior counsel for the respondent/plaintiff. I have also gone
through the entire documents available on record.
       9. The learned counsel for the revision petitioner/defendant strenuously contended
that the lower appellate Court has committed an illegality in granting an injunction in favour
of the respondent/plaintiff even though the revision petitioner/defendant was able to prove
prima facie before the trial Court that the suit land is a Village Community land.
       10.     Referring the proceedings of the Sub-Collector, Nagapattinam, dated
25.12.2004, the learned counsel for the revision petitioner/defendant submits that the suit
land being a Village Community land is being used as “Mayanam”. The learned counsel
further submits that once it is established prima facie that the suit land is a Village
community land, then the possession of the respondent/plaintiff is illegal and a person who
claim possession illegally cannot seek the help of a Court to protect such illegality. The
learned counsel for the revision petitioner/defendant relies on a decision of this Court
reported in 2000(3) L.W. 521 (Kamalammal and 3 others v. Indirani Ammal) in support of
his submission. He also relied on a decision of a Division Bench of this Court reported in
1997(2) M.L.J. 584 (S.A.Ramachandran and others v. The Government of Tamil Nadu and
others) to submit that properties which are classified as Samudhaya well could not be
assigned by authorities to individuals to the detriment of the public.
       11. Per contra, the learned senior counsel for the respondent/plaintiff submits that
the trial Court has wrongly appreciated the „A‟ Register to come to a wrong conclusion that
the suit land is a Community land and the lower appellate Court has correctly appreciated
the very same documents and rightly concluded that the suit land is a patta land.
Therefore, the well considered order of the lower appellate Court in correctly appreciating
the documents filed before it should not be interfered with in this revision petition. The
learned senior counsel has also pointed out that the revision has been filed under Article
227 of the Constitution of India and it should have been filed under Section 115 of C.P.C.
       12. I have considered the rival submissions carefully with regard to facts and
citations.
       13. It is not in dispute that the respondent/plaintiff claimed ownership of the suit
property on the basis of the two sale deeds dated 6.1.2004 and 11.3.2004. The case in the
suit is that the President of the revision petitioner/Panchayat developed an animosity
towards him and thereby he instigated the revenue authorities to trespass into his land and
damaged the property as well as the crops. Fearing another such attempt, the suit has been
filed for a bare injunction and pending suit, I.A.No. 550 of 2007 has been filed by the
respondent/plaintiff under Order 39, Rules 1 and 2, C.P.C. for interim injunction.
        14. The case of the revision petitioner/defendant is that the plaintiff has no right or
title over the suit property as the person from whom he alleged to have purchased the
property did not have even a semblance of right over the property as the suit property is a
Village Community land.
        15. The trial Court after hearing both the sides and after going through the
documents filed on behalf of both the parties, prima facie found that the suit schedule
property is a Village Community property and to come to this conclusion, the trial Court
relied on the proceedings of the Sub-Collector dated 25.12.2004 and the “A” Register of the
Village Panchayat dated 27.12.2007. After concluding prima facie that the suit property is
a Village Community property and relying on the judgment of this Court, reported in
1997(2) M.L.J. 584 (cited supra) and 2000(3) L.W. 521 (cited supra), decided that the
respondent/ plaintiff is not entitled to an order of injunction and accordingly dismissed
I.A.No. 550 of 2007.
        16. The lower appellate Court after re-evaluating the documents filed on both sides
found that the “A” Register of the suit property referred to the suit property as Ryotwari
Punja and if the property is a Government land, then “A” Register should refer the suit
property as property of Government or as Poromboke. The lower appellate Court has also
dismissed the contention of the revision petitioner/defendant that the Revenue Divisional
Officer has taken possession of the property and further added that even if possession is to
be taken, the same is to be taken only by resorting to due process of law. Therefore, the
lower appellate Court has set aside the order of the trial Court and allowed the appeal.
        17. It is to be noted that when an appeal is filed against the order passed by the trial
Court under Order 39, Rules 1 and 2, C.P.C., it is not a regular appeal wherein the appellate
Court can go into each and every issue on its own and re-hear the entire matter. In a
petition under Order 39, Rules 1 and 2, C.P.C., the trial Court has to exercise its discretion
and that discretion is to be based on sound principles of law. Once the trial Court has
evaluated the documents adduced before it and come to a prima facie finding, it is not
illegal or perverse and the same cannot be interfered with by the lower appellate Court
even though another view is possible.
        18. In the present case, the trial Court considered the proceedings of the Sub-
Collector dated 25.12.2004 wherein it was mentioned that the lands are Village
Community lands and are used by the public as „Mayanam‟. The trial Court has also gone
into the “A” Register wherein also it is found that the suit lands are Village Community
lands. It is true that the same Register gives room for ambiguity by referring to some other
details also. But, it does not mean that this score, that too, at the interlocutary stage, the
findings arrived at by the trial Court on the basis of these two documents could be
interfered with. A reading of the judgment of the trial Court shows that it has properly
adduced the documents before it and it come to a prima facie conclusion that the suit land
is a Village Community land. Thereafter, the trial Court on the basis of the above mentioned
judgment, rejected the interim injunction application filed by the respondent/plaintiff. But,
the lower appellate Court was swayed by the 35 names of individuals which are referred to
in the “A” Register decided to upset the discretion properly exercised by the trial Court. The
lower appellate Court has failed to consider the fact that the appeal is only an appeal
against an order passed by the trial Court under Order 39, Rules 1 and 2, C.P.C. and it is not
a regular appeal. Once it is found that the trial Court has rightly exercised its discretion
which is neither illegal nor perverse, then, it is not open to the lower appellate Court to
reverse such findings of the trial Court. Therefore, I have no hesitation to interfere with the
order of the lower appellate Court and accordingly, the order of the lower appellate Court is
set aside.
       19. It is also necessary to refer to the judgment referred to by the trial Court as well
as by the learned counsel for the revision petitioner.
       20. In 1997 (2) M.L.J. 584 (cited supra), a Division Bench of this Court observed as
follows:
          “7. We have carefully considered all these aspects adverted to by the different
                 authorities like the District Collector, the Board of Revenue and the
                 Government on the one hand and the learned Single Judge on the other. The
                 learned Judge could not have taken the view that what was assigned was
                 land and not of the well, despite his observation that major portion of the
                 property was occupied by the well only. The well needs necessarily some
                 surrounding space also for access and use. Having regard to the extent of
                 the land itself and the location of the well and the earlier classification of
                 the property as Samudhayam well, it is but necessary to view the property
                 assigned to be mainly well only with some surrounding space of land.
                 Though Board‟s Standing Order No.15(14) envisaged the authorities
                 undertaking assignment of lands to value the well or standing trees or other
                 properties also in the extent of the land to be assigned, that is not the same
                 thing permitting assignment of well simpliciter, de hors all other
                 consideration and on the facts of this case it has to be borne in mind then
                 what is sought to be assigned was in reality and in substance a well and well
                 alone, particularly when such well stood classified in the Village accounts as
                 Samudhayam well meaning thereby well for the common use of the
                 villagers. In our view, the properties like the one which had been classified
                 as Samudhayam well cannot be assigned at all by the authorities to any
                 individual to the detriment of the public. We are of the view that the
                 properties of the nature are to be held and has got to be owned and held by
                 the Government in trust for the public and there cannot be any breach of
                 such trust to the detriment of the public and public interest. The sum and
                 substance of the reasons assigned by the District Collector as also by the
                 Board really are in recognition of this vital and well settled principle.”
       21. In 2000(3) L.W.521 (cited supra), this Court held as follows:
          “5. It is contended by the learned counsel for the appellants that the appellants
                 were in possession and their possession was a matter of admission by the
                 respondent and such possession must be protected notwithstanding the
                 character of the possession. It is to be immediately noticed that the
                 appellants claimed absolute title, to the A schedule property in the prior
                 proceedings. It was held in the prior proceedings that the first appellant was
                 not the legally wedded wife of Munuswamy Mudaliar and she had no right in
                 any portion of the suit property. It was also held that the settlement deed
                 under which the respondent claimed title was true and valid. When once it
                 was held that the respondent (sic) did not have any semblance of right, title
                 or interest in the suit property, her possession was rightly held to be
                 unlawful possession. Starting from Alagi Alamelu Achi v. Ponniah Mudaliar,
                 (1962) 1 MLJ 383, the Courts have consistently held that a trespasser‟s
                 possession would not be protected. Even recently, the Supreme Court in
                 Mahadeo Saviaram Sheika v. Pune Municipal Corporation, (1995) 3 SCC 33
                 and Premji Ratansey Shah v. Union of India, 1994 (5) SCC 547 : 1994 (2)
                  L.W. 735, has affirmed that view. In Premji Ratansey Shah‟s case the
                  Supreme Court has held as follows:
         “Issuance of an order of injunction is absolutely a discretionary and equitable relief.
         In a given set of facts, injunction may be given to protect the possession of the
         owner or person in lawful possession. It is not mandatory that for mere asking such
         relief should be given. Injunction is a personal right under Section 41(j) of the
         Specific Relief Act, 1963; the plaintiff must have personal interest in the matter.
         The interest of right not shown to be in existence, cannot be protected by injunction.
         It is equally settled law that injunction would not be issued against the true owner.
         Therefore, the Courts below have rightly rejected the relief of declaration and
         injunction in favour of the petitioners who had no interest in the property. Even
         assuming that they had any possession, their possession was wholly unlawful
         possession of a trespasser and an injunction cannot be issued in favour of a
         trespasser or a person who gained unlawful possession, as against the owner.”
             6. In Shive Kumar Chandha v. Municipal Corporation of Delhi, (1993) 3 SCC
                  161, it has been held that judicial procedure cannot be used to protect or to
                  perpetuate a wrong committed by a person who approaches the Court.”
       22. In the above judgment, it has been clearly held that trespasser‟s possession as
well as unlawful possession could not be protected by the Court even if the person is found
to be in possession, as judicial procedure cannot be used to perpetuate a wrong committed
by a person. The Division Bench also held that the properties classified as Samudhayam is
to be owned and held in trust by the Government for the public.
       23. Therefore, in the light of the above judgments and also in the light of the facts
and circumstances of the case, I am of the considered view that the respondent/plaintiff
does not have a prima facie case to get the order of interim injunction as rightly held by the
trial Court.
       24. Hence, the order passed by the lower appellate Court granting interim injunction
is set aside.
       25. In the result, the above mentioned civil revision petition is allowed. No cost.
                                                                               Revision allowed.



                                [2010 (1) T.N.C.J. 137 (Mad)]
                                    MADRAS HIGH COURT
BEFORE:
           M. VENUGOPAL, J.
                          A. SRIRAM                                                ...Petitioner
                                            Versus
                          MRS. G. PADMAVATHI                                   ...Respondent
             [C.R.P. (NPD) No. 2435 of 2009, decided on 12 November, 2009]
                                                           th


      Civil Procedure Code, 1908—Order 37, Rule 3 and Section 115—Leave to defend—
Revision—Maintainability of—Application for leave to defend refused—Held, dismissal
partakes form of judgment—Hence, only regular appeal will lie.
                        (Paras 6 and 7)
      Counsel.—No appearance, for the petitioner; Mr. A. Saravnaraj, for the respondent.
                                         JUDGMENT
       M. VENUGOPAL, J.—The petitioner/defendant has preferred this Civil Revision Petition
as against the order dated 29.12.2006 in I.A.No.18689 of 2006 in O.S.No. 6272 of 2006
passed by the learned III Assistant Judge, City Civil Court, Chennai in dismissing the
application filed by the revision petitioner/defendant under Order 37, Rule 3 of Civil
Procedure Code to grant unconditional leave to defend the suit.
       2. When the matter is taken up for hearing, there is no representation on behalf of
the petitioner/defendant. Heard the learned counsel for the respondent/plaintiff.
       3. On perusing the Memorandum of grounds filed in the present Revision filed on
behalf of the revision petitioner it is quite evident that it is the stand of the revision
petitioner/defendant that the impugned order of the trial Court in I.A.No.18689 of 2006 in
O.S.No. 6272 of 2006 dated 29.12.2006 is against law and weight of evidence and
probabilities of the case and the trial Court has failed to consider that the pro-note itself is a
forged one and further the trial Court has committed an error in considering that there is no
clear averment with the revision petitioner signature has been forged etc., and the trial
Court has not taken into account of another fact that the pro-note was a fabricated one
and that the respondent has not sent any notice to the petitioner in demanding principal
and interest sum and looking at from any angle, the order passed by the trial Court suffers
from serious infirmities and illegalities and therefore prays for allowing the Civil Revision
Petition in the interest of justice.
       4. It is to be noted that I.A.No.18689 of 2006 in O.S.No. 6272/2001 on the file of the
learned III Assistant Judge, City Civil Court, Chennai has been filed by the revision
petitioner/defendant under Order 39, Rule 3 of Civil Procedure Code praying permission of
the trial Court to grant unconditional leave to him to defend the suit. The leave to defend
ought to be given unconditionally, if the revision petitioner/defendant establishes the prima
facie case or raises a triable issue. However a Court of Law can grant leave conditionally if
the Court finds bona fide of the revision petitioner/defendant or thinks that the defence
intended to be put to enrich time.
       5. The contention of the respondent/plaintiff counsel is that as against the order
passed in I.A.No.18689 of 2006 dated 29.12.006 by the trial Court only an appeal remedy
lie and as such the revision petition filed by the revision petitioner/defendant is not per se
maintainable before this Court.
       6. At this juncture, it is to be borne in mind that on the dismissal of the application
filed under Order 37, Rule 3 of Civil Procedure Code, viz., I.A.No.18689 of 2006 refusing
leave to defend partakes the form of judgment and only a regular appeal will lie against the
order so passed by the trial Court and resultantly, the revision petition filed by the revision
petitioner/defendant is per se not maintainable and that the interlocutory order refusing
leave to defend partakes form of judgment, thereby making it vulnerable to assault only
through substantive and regular and subsequent appeal where the                          revision
petitioner/defendant can avail second opportunity to present its defence by filing an
appeal.
       7. In that view of the matter the Civil Revision Petition is dismissed as not
maintainable. Considering the facts and circumstances of the case the parties are directed
to bear their own costs. Consequently, connected miscellaneous petition is closed.
                                                                            Revision dismissed.

                                 [2010 (1) T.N.C.J. 139 (Mad)]
                                     MADRAS HIGH COURT
BEFORE:
                M. VENUGOPAL, J.
                               AMT. CHINNA KARUPPATHAL                              ...Petitioner
                                               Versus
                    SMT. A.D. SUNDARA BAI AND OTHERS                            ...Respondents
  [C.R.P. (NPD) No. 3078 of 2009 and M.P. No.1 of 2009, decided on 16 November, 2009]
                                                                           th


        (A) Civil Procedure Code, 1908—Section 47—Scope of—Application filed by third party
under Section 47 of Civil Procedure Code, held, not maintainable.
                                  (Para 8)
        (B) Civil Procedure Code, 1908—Section 47—Execution—Sale confirmed by Executive
Court—Matter went upto Apex Court and order became final—Hence, not open to petitioner
to give life to an application under Section 47—Thus, no interference warranted.
(Para 12)
        Case law.—AIR 1972 Mad 359 (V59 C 121)—relied on; AIR 1923 Mad 247 (FB); ILR
(1957) AP 739—referred.
        Counsel.—M/s. V. Ramesh, for the petitioner; M/s. Sarvabhauman, Associates, for the
respondents 5 to 13; M/s. T.L.L. Ramakrishnan, for the respondents.
                                             JUDGMENT
        M. VENUGOPAL, J.—The revision petition/petitioner/second petitioner has projected this
civil revision petition as against the order dated 28.7.2009 made in E.A.No.255 of 2009 in
E.A.No.139 of 1962 in E.P.No.134 of 1957 in O.S.No.226 of 1946 passed by the II
Additional Subordinate Judge, Coimbatore, in dismissing the application filed by the
revision petitioner under Section 151 of Civil Procedure Code praying for an enquiry in
E.A.No.139 of 1962 filed under Section 47 of Civil Procedure Code.
        2. The Executing Court while passing orders in E.A.No.255/2009 has inter alia opined
that, “... it is not necessary to take up enquiry in E.A.No.139 of 1962 as the Apex Court itself
has considered the pendency of E.A.No.139 of 1962 and passed a final order on merits and
this has no power to take up the enquiry afresh in E.A.No.139 of 1962 that in view of the
final order passed by the Hon‟ble Supreme Court of India, and I.A.Nos.19-21 of 2008 in Civil
Application Nos.5267-5269 have been filed by the petitioners seeking clarifications setting
out that E.A.No.139 of 1962 under Section 47 of Civil Procedure Code is pending before
this Court and thereby sought for a direction given by Hon‟ble Supreme Court of India, not to
confirm the sale and to issue sale certificate in favour of the auction purchasers set out in
the order dated 24.10.2008 shall be deleted. However, the Hon‟ble Supreme Court of
India, had dismissed the said clarification by an order dated 23.2.2009 etc., and since the
highest Court of Law the Hon‟ble Supreme Court of India, has passed the final order, that
the present Execution Application has no merits and resultantly, dismissed the application
without costs.”
        3. The core of contention put forward by the learned counsel for the revision
petitioner is that the order of the Executing Court, in dismissing the E.A.No.255 of 2009 is
materially an irregular one and also contrary to law and the Executing Court, as a matter of
fact has not appreciated of the simple fact that what was challenged before the Hon‟ble
Supreme Court of India is against the order of the Hon‟ble High Court, Madras dated
26.2.1998 in C.R.P.Nos. 3162 to 3164 of 1992 which have been filed against E.A.No.782
of 1989 in E.A.Nos.1612 and 1613 of 1987 respectively and not against the application
filed under Section 47 of Civil Procedure Code, and the Hon‟ble Supreme Court of India has
merely dismissed the application filed for clarification without any discussion or expressing
any opinion on the application filed under Section 47 of Civil Procedure Code and further,
that the order of the Hon‟ble Supreme Court of India dated 23.2.2009 is not on merits, and
moreover, while considering the applicability of Tamil Nadu Agriculturist Debt Act and
Section 23-A of the said Act, the Hon‟ble Supreme Court of India have held that the persons
are not entitled for the benefit of Section 23-A of the Act and in short there has been no
reference in the applicability of Section 47 of Civil Procedure Code in the order passed by
the Hon‟ble Supreme Court and as such the Execution Court ought to have held the
application under Section 47 of Civil Procedure Code is proper and maintainable in law and
the trial Court has failed to see that earlier application under Section 47 of Civil Procedure
Code have not been heard and it ought to have taken up the application E.A.Nos.139 of
1962 filed under Section 47 of Civil Procedure Code and all the more the Executing Court
has committed an error in holding that the order of the Hon‟ble Supreme Court is final on
the whole aspect and since, the Executing Court has not appreciated and adverted to the
factual aspects of the matter in issue the order passed by it in E.A.No.255 of 2009 suffers
from material irregularity coupled with patent illegality which has resulted in the dismissal
of the Execution Petition and therefore, prays for allowing the civil revision petition in
furtherance of substantial cause of justice.
       4. In the counter filed by Mr. P. Kumarasamy who is the legal representative of 13th
Respondent, Ponnusamy Gounder it is inter alia mentioned that the legal representatives of
his father in E.A.Nos.1612 and 1613 of 1987 and E.A.No.782 of 1988 have already been
impleaded and the same has been recognised in Civil Revision Petition No.3162 of 1992
on the file of this Court and Civil Appeal Nos.5267-69 of 2002 on the file of Hon‟ble
Supreme Court of India and that his father Ponnusamy expired on 27.1.1973 leaving
behind him, two brothers Velusamy and Jambulingam and two sisters Karunambigai and
Rukmini, and further his brother Velusamy expired on 13.7.2005 leaving behind his wife
Parvathy and children Vivekanandan and Geetha and likewise his sister Rukmini expired on
13.12.1996 leaving behind her husband Sivsamy Gounder and her children Chandrakala,
Gnanaprakash, Jagadambal and Nathan (alias) Jaganathan and as a matter of fact all of us
have been arrayed as Respondent Nos.9 to 21 in the proceedings pending before the
Hon‟ble Supreme Court in C.A.No.5267 to 5269 of 2002, and though they have not arrayed
as parties in this civil revision petition this counter affidavit has been filed as a caveator as
legal representatives of the deceased 13th respondent and added further, the revision
petitioner alone has moved E.A.No.255 of 2009 praying for an enquiry in E.A.No.139 of
1962 filed under Section 47 of Civil Procedure Code and though the legal representatives of
13th respondent herein have filed counter in the said E.A.No.255 of 2009 and in the order
passed by the Executing Court in E.A.No.139 of 1962 the Executing Court has questioned
the locus standi of the petitioner to project an application under Section 47 of Civil
Procedure Code and the response of the revision petitioner has been that he is the
representative in interest by means of a settlement deed and also that the settlement deed
has been brought into existence during the pendency of the Execution proceedings and
since the petitioner is not coming within the four parameters of Section 47 of Civil
Procedure Code, he is not entitled to maintain the said application and also that the
Hon‟ble Supreme Court has refused to consider the demand of petitioner to keep in
abeyance the confirmation of sale till the disposal of the Section 47 application and
therefore prays for dismissal of the civil revision petition.
       5. The learned counsel for Respondents Nos. 11 and 12, legal representatives
submits before this Court that he adopts the contentions put forward by the learned counsel
for the legal representatives of 13th respondent in all aspects and goes on to add that legal
representatives of 12th respondent have been added before the Hon‟ble Supreme Court as
necessary parties but the revision petitioner has not chosen to show them as one of the
necessary parties before the present civil revision petition before this Court and contends
that the Executing Court has considered over all assessment of the facts and circumstances
of the case in a cumulative and in an integral fashion and has passed the recent order
which may not be interfered by this Court sitting in revision.
       6. This Court has heard the arguments of the learned counsel appearing for the
parties and noticed their contentions. This Court, at this stage, pertinently recalls the
judgment of the Hon‟ble Supreme Court in C.A.Nos.5267-5269 of 2002, between
Chinnakarupathal and Ors. and A.D. Sundarabai (dead by Lrs) and Ors. dated 24.10.2008
whereby and whereunder the Hon‟ble Supreme Court has among other things held as
follows:
         “The fact that agricultural lands were sold in an auction and that the owners of such
         lands were agriculturists, are not by themselves sufficient to invoke the exercise of
         power under Section 23-A of the Act. The Court can set aside a sale of immovable
         property under the said section only if the Court is satisfied that the applicant is a
         person entitled to the benefits of the Act.
         As noticed above, the only benefit claimed by the appellants under the Act was
         scaling down of the debt and determination of the scaled down amount. We have
         already held that the said application was not maintainable. The appellants have
         not been able to demonstrate how they are entitled to any of the benefits under the
         said Act. A perusal of the Act shows that the reliefs that can be granted under the
         Act are: scaling down of debts and rates of interest; relief in regard to the
         usufructuary mortgages; consessions in regard to interest payable by agriculturists
         on loans; conditional discharge of arrears of rent due to land holders and scaling
         down of interest on arrears of rent. But none of these are applicable to the recovery
         by way of restitution, by enforcing the security. Scaling down of the debit is
         permissible only where the amount paid or payable by way of principal and interest
         is more than twice the amount of the principal. That does not apply in this case.
         This is not a case of usufructuary mortgage. Nor is any interest payable on any loan.
         Nor is the claim for any rent payable. Therefore, we are not satisfied that
         appellants, are persons entitled to the benefits of the Act. In the absence of such
         satisfaction, the question of setting aside the auction sale under Section 23-A of the
         Act does not arise. The rejection of the three applications is proper. As a
         consequence, the auction sales will have to be confirmed in favour of the auction-
         purchasers.”
       7. Thereafter, a clarification petition has been filed by the revision petitioner before
the Hon‟ble Supreme Court in I.A.Nos.19-21 in C.A.Nos.5267-5269 of 2002 and the same
has been dismissed on 23.2.2009.
       8. It is to be noted that an application filed by the third party under Section 47 of Civil
Procedure Code is per se not maintainable as per decision of this Court Rajammal v. A.T.
Krishnaswami Mudaliar (Died) and others, AIR 1972 Madras 359 (V 59 C 121) wherein it is
held that, even after the amendment to the Civil Procedure Code after Act 104 of 1976 and
thereafter as per Act 22 of 2002 the position of law in regard to Section 47 of Civil
Procedure Code remains the same and in short if now the application filed by the third
party under Section 47 of Civil Procedure Code is not per se maintainable in law.
       9. Even though a fervent endeavuor have been made on the part of the revision
petitioner to project a case before this Court by putting forward a plea that the Hon‟ble
Supreme Court has been has been considering only the applicability of Tamil Nadu
Agriculturist Debt Act and Section 23-A of the said Act etc., this Court opines that the
Hon‟ble Supreme Court of India has earlier disposed of the C.A.Nos.5267-5269 of 2002
and later clarification I.A.Nos.19-21 filed have also been dismissed on 23.2.2009, and
therefore, the matter inter se between the parties have become final besides being
conclusive and the same is binding.
       10. One cannot brush aside a very important fact that while dismissing the
C.A.Nos.5267-5269 of 2002 on 24.10.2008 the Hon‟ble Supreme Court of India has
inevitably held that:
        “... therefore, we are not satisfied that appellants, are persons entitled to the
        benefits of the Act. In the absence of such satisfaction, the question of setting
        aside the auction sale under Section 23-A of the Act does not arise. The rejection of
        the three applications is proper. As a consequence, the auction sales will have to be
        confirmed in favour of the auction-purchasers and the appeals have no merits and
        are accordingly dismissed.”
       11. It is brought to the notice of this Court that the sale has been confirmed by the
Executing Court on 28.7.2009. It is significant to make a mention that the Hon‟ble Supreme
Court has not considered the demand of the Petitioner to keep in abeyance the
confirmation of sale till the disposal of the Section 47 application.
       12. Be that as it may in view of the fact that the sale has been confirmed by the
Executing Court on 28.7.2009 and also taking note of another important fact that the
C.A.No.5267-5269 of 2002 being dismissed by the Hon‟ble Supreme Court and also
subsequently, the clarification petition I.A.Nos.19-21 have also been dismissed and since
the original suit No.226 of 1946 relates to the year of 1946 this Court is reminded of the
well known saying that, „an Homo-Sapien is a Mortal but the litigation is an immortal one
and in law the person who has succeeded is entitled to see the fruits of the decree/order,
and coming to the facts of the present case on hand, and assessing the same in a
conspectus fashion and looking at from any angle this Court comes to the inevitable
conclusion that after the proceedings before the Hon‟ble Supreme Court of India have
reached finality it is not open to the revision petitioner to give life to an application under
Section 47 of the Civil Procedure Code filed by the revision petitioner praying this Court for
issuance of direction to the trial Court to dispose of the Section 47 application namely
E.A.No.255 of 2009 is only a futile and otiose one and viewed in this perspective this Court
dismisses the civil revision petition without costs.
       13. In fine, the civil revision petition is dismissed leaving the parties to bear their own
costs. The order passed by the Executing Court in E.A.No.255 of 2009 is affirmed by this
Court. Considering the facts and circumstances of the case there shall be no order as to
costs. Before parting with the case it is brought to the notice of this Court by the learned
counsel for the revision petitioner that Section 47 application in E.A.No.139 of 1962 is not
available among the records in E.P.No.134 of 1957 in O.S.No.226 of 1946 on the file of
Learned II Additional Sub Judge, Coimbatore. At this juncture it is not out of place for this
Court (for the knowledge and guidance of the Subordinate Courts and Judicial Officers) to
make a mention that in regard to the missing of Court records the Honourable High Court in
R.O.C.No.412/1980/F1 dated 10.9.1989 has issued a circular to the Subordinate Judicial
Officers stating that the High Court has come across instances where missing of the records
not reported to the High Court by the concerned subordinate Courts promptly and that the
High Court directs whenever there is any instance of missing of Court records, it should be
reported immediately either to the Registrar, High Court, Madras or to the Special Officer,
Vigilance Cell, High Court, Madras. At this stage this Court recalls the observation of the Full
Bench decision of this Court in Marakkarutti v. T.P.M. Veeran Kutty, AIR 1923 Mad 247 (FB)
: (1923) 1 MLJ 673, that „the reconstruction of the record may go to the extent of rehearing
of the case itself which means directing the parties to produce the relevant witnesses and
in doing so, the Court will have to ascertain not only what the rights of the parties were, but
also what the destroyed record was.             Also in Katam Achutharamayya v. Rikki
Nagabhushanan, ILR (1957) A.P. 739, the Andhra Pradesh High Court has been required to
decide the desirability of reconstructing the record of which the original award had been
lost for no fault of either party and that it is held that the Court could under the Court‟s
inherent power direct for reconstruction and upon the reconstruction of the record it would
have the same effect as the originals themselves. Therefore, it will be quite in the fitness of
things that the Executing Court shall act in terms of tenor and spirit of High Court circular in
R.O.C.No.412/1980/F1 dated 10.9.1989 and further under its inherent power it shall
reconstruct the Section 47 application E.A.No.139 of 1962 and to pass appropriate orders
in the manner known to law in the said application within a period of 10 days from the
date of receipt of the copy of this order and to report compliance to this Court without fail.
Consequently, M.P.1 of 2009 is closed.
                                                                            Petition dismissed.

                                [2010 (1) T.N.C.J. 145 (Mad)]
                                    MADRAS HIGH COURT
BEFORE:
             M. VENUGOPAL, J.
                             THE PRINCIPAL ST. PATRICK SCHOOL AND COLLEGE          ...Petitioner
                                             Versus
                  MRS. AMARAVATHI (D) AND OTHERS                               ...Respondents
   [C.R.P. (NPD) No. 2503 of 2009 and M.P. No. 1 of 2009, decided on 21 October, 2009]
                                                                            st


       Civil Procedure Code, 1908—Order 26, Rule 1—Advocate Comm-issioner—
Appointment at appellate stage—Commissioner cannot be appointed to procure or gather
evidence by filling up lacuna at appellate stage where it is not case of appellate Court that
there is insufficient or doubtful evidence available on record—Hence, order of appointing
advocate Commissioner not sustainable—Order set aside.              (Paras 26 and 27)
       Case law.—1996 (1) CTC 472; 2004 (2) Kar LJ 191; 1996 (2) Kar LJ 70; AIR 1970 Cal
192; AIR 1996 Guj 72; AIR 1998 Raj 224; 1999 (1) CTC 172; AIR 1986 Mad 33; 2008 (5)
CTC 330; AIR 1996 Kerala 276; AIR 1992 AP 300; AIR 1975 Goa 32; AIR 1952 Pat 137;
1997 AIHC 2258—referred.
       Counsel.—Mr. AR.L. Sundaresan, S.C., for M/s. M.L. Ganesh & S. Arunkumar, for the
petitioner; Mr. P.S. Raman, Advocate General for M/s. K.P. Sanjeev Kumar & Sathish
Kumar, for the respondents.
                                            JUDGMENT
       M. VENUGOPAL, J.—The civil revision petitioner/respondent/defendant has preferred
this civil revision petition as against the order dated 7.8.2009 in I.A.No.855 of 2007 in
A.S.No.244 of 2007 passed by the learned III Additional Judge, City Civil Court, Chennai in
allowing the application filed by the respondents/appellants/petitioners/plaintiffs under
Order 26, Rule 1 of Civil Procedure Code praying for appointment of an Advocate
Commissioner along with Government Surveyor to measure the suit land.
       2. The learned III Additional Judge, City Civil Court, Chennai, while passing orders in
I.A.No.855 of 2007, has, inter alia opined that “... measuring of the property or noting down
the physical features of the property will not cause prejudice to the parties. On the other
hand, from the documents filed by the plaintiff as well as the defendants, even though this
Court is not in a position to discuss the point in a detailed manner, but some of the
documents showing the title of the respondents are not covered the full extent of the survey
numbers and on the other hand, revenue records also entered in the predecessor of the
petitioners name, which was not accepted by the trial Court and in these circumstances, the
appointment of Advocate Commissioner will not in any way prejudice to the parties and on
the other hand, it would be helpful to both sides will know the actual extent of the
properties and hence, it is just and necessary to appoint an Advocate Commissioner to
decide the issue in a proper manner and allowed the application by appointing Mr. C.
Kasirajan, 239, New Law Chamber, High Court, Chennai-104 is appointed as Advocate
Commissioner and has directed him to inspect the suit property after giving due notice to
both sides and further he has been directed to note down the demarcation of the property
with the help of Government Surveyor without collecting any evidence on either side and
without noting who is in possession of the property and he has been directed to note down
only the physical features of each area of the property and to submit his report on or before
19.8.2009 and the remuneration of Rs.10,000/- has been fixed and it is ordered to be paid
by the respondents/petitioners and the matter has been directed to be called on
19.8.2009.”
       3. The learned counsel for the revision petitioner/respondent/defendant submits that
the order of the First Appellate Court dated 7.8.2009 passed in I.A.No.855 of 2007 in
A.S.No.244 of 2007 in allowing the application for appointment of an Advocate
Commissioner to inspect the suit property is an arbitrary, illegal one and contrary to law and
against the principles of natural justice and moreover, the first appellate Court should have
observed that the application for appointment of an Advocate Commissioner has been filed
by the respondents/petitioners in the year 2007 and moved the same only in the year 2009
for obvious reasons when as a matter of fact, the appeal itself has been listed for final
arguments and in fact, the trial Court has given a finding that the respondents/petitioners
have failed to establish that they do have a valid title over the suit property measuring an
extent of 16 acres situated in the city of Chennai and added further, the first appellate
Court should have observed that the trial Court has given a categorical finding that the
respondents have fabricated the revenue records as confirmed by the Tahsildar, Mylapore-
Triplicane Taluk and in fact, the revision petitioner/Institution will be subjected to hardship,
mental agony and irreparable loss if an Advocate Commissioner physically measures the
suit property, since educational activities are going on in the suit property and these aspect
of the matter has not been looked into by the trial Court in right perspective and indeed, the
report of an Advocate Commissioner will in no way help or to assist the Court but it
prejudices the revision petitioner and the petitioner school has been in existence for more
than 10 decades and the criminal complaints filed against the respondents, represented by
their power agent for criminal trespass, damages, forgery and fabrication of documents
have not been adverted to by the first appellate Court and as a matter of fact, how the
respondents/petitioners/appellants had derived a title of the suit property measuring an
extent of 16 acres in the city of Chennai has not been looked into by the first appellate
Court and the first appellate Court also has committed an error in coming to the conclusion
that it is not in a position to discuss the merits and demerits of the appeal before deciding
an application for appointment of an Advocate Commissioner and therefore, prays for
allowing the civil revision petition in furtherance of substantial cause of justice.
       4. In support of the contention that there must be a sufficient basis and justification
and also an effective need for an appointment of an Advocate Commissioner, the learned
counsel for the revision petitioner cites the decision of this Court in S. Anthonidoss and
another v. Sabesthiyan and another, 1996 (I) CTC 472, wherein at para 7 it is among other
things observed that “... The question of appointment of a Commissioner does not depend
upon merely whether any prejudice will be caused to the other side or not. Instead, there
should be sufficient basis and justification as also an effective need and an appointment of
Commissioner cannot be sought for or obtained as a matter of course and that too to
achieve an ulterior object or motive. In this case, if the object and purport of the petitioners-
plaintiffs is to ascertain the factum of deposit of materials on the site, that factum stood
admitted by the respondents in the Court below and there is no dispute or controversy over
the same. If the object of the plaintiffs is to use the Commissioner to be appointed to
project or prove his claim of ownership of the materials deposited on the land, the claim is
thoroughly a misconceived one and there cannot be any appointment of Commissioner for
such purpose, since ownership of the materials has to be proved otherwise than through
report of the Commissioner. Equally the appointment of Commissioner cannot be availed of
to ensure that there is no construction put up during the pendency of the proceedings, when
it is not even the case of the plaintiffs that the construction is already in progress and on
the contrary, the common case appears to be as disclosed from the materials placed
before this Court that the land is only vacant. If the object of the petitioners is to ensure that
the respondents do not put up any construction, he should, if at all, try to get an order of
injunction and this cannot be achieved by a short circuit method of getting such orders by
seeking for the appointment of a Commissioner. In my view, the application appears to be
not only frivolous but a misconceived one with no genuine motive. The learned Judge in the
Court below was well justified in rejecting the such an application.‟
       5. He also relies on the decision in B.S.Nazir Hassan Khan v. Aswathanarayana Rao
and Ors., 2004 (2) Kar L.J. 191, wherein it is observed as follows:
         “...To my mind, it is necessary that all applications of this type even if they are bona
         fide and genuine, have to be filed at a proper point of time in the proceedings. This
         is very necessary also from the point of view of the stage of the proceedings
         because, the learned trial Judge is perfectly right when he pointed out that if this
         application were to be entertained, even assuming that was the position, it would
         mean that the trial which has reached the argument stage, would get dilated,
         evidence will have to be reopened and all the procedures from that stage onwards
         would again have to be recommenced. The law does not permit such ill-timed
         applications which would only have the effect of disrupting the trial and dilating the
         proceedings. The Courts have been virtually struggling to ensure that civil
         proceedings are heard and disposed of within a reasonable time and applications of
         this type only disrupt the proceedings and dilate them. Under these circumstances,
         not only was the trial Court fully justified but, to my mind, the challenge presented
         through the civil revision petition to that order is totally misconceived. Having regard
         to this position, the civil revision petition is dismissed with costs quantified at
         Rs.1,000.”
       6. He also presses into service the decision in Puttappa v. Ramappa, 1996 (2) Kar LJ
70, wherein it is held as follows:
         “... Under Order 26, C.P.C., a Commissioner can be appointed to make local
         investigation to investigate the facts or other materials which are found in the
         property and to make a report in regard to that matter to the Court. In a suit for
         injunction the question as to who is in possession of the property, is a matter to be
         decided by the Court on the basis of the evidence, either oral or documentary, to be
         adduced by the parties. That function cannot be delegated to a Commissioner who
         cannot find out as to who is in possession of the property. Accordingly, the lower
         Court was right in rejecting the application.”
       In the aforesaid decision, it is held that „A Commissioner will not be in a position to
determine the question as to who is in possession of the property when there is dispute
between the parties regarding the same. The Court will have to decide the matter on the
basis of the evidence to be adduced by the parties. It is not the function of the
Commissioner to determine or to report to the Court as to who is in possession of the
same.‟
       7. He brings it to the notice of this Court to the decision of Calcutta High Court in
Sohanlal Salman v. Smt. Shyama Debi and Ors. In C.R.P.No.4494 of 1967 decided on
2.1.1969 [Eq. Cit : AIR 1970 Cal 192] wherein it is inter alia observed as follows:
         “... The present petitioner objected to the issue of such a commission on the ground
         that the Commissioner‟s evidence, if any, would be hit by Section 91 of the Indian
         Evidence Act and would not be admissible for the purpose of proving the said
         details of the alleged partition. This objection was rejected by the learned trial
         Judge.
         In our view, the purpose of the commission would be to prove the details of the
         alleged partition, for which there was, admittedly, an unregistered deed of partition,
         which was inadmissible for want of registration. In the circumstances, the
         commission, for the purpose, for which it was sought to be taken out, would not be
         permissible under the law.”
       8. Continuing further, the learned counsel for the revision petitioner seeks in aid of
the decision in Shantadevi Pratapsingh Gaekwad and another v. Shrimant Sangramsingh
Pratapsingh, MANU/GJ/0119/1996, Eq.Cit:AIR 1996 Guj 72, wherein it is held that „The
learned trial Judge has rejected the application for appointment of a Commissioner for
inventory. Appointment of a Commissioner for the purpose would certainly depend upon the
establishment of a prima facie case in favour of the plaintiff. In view of my aforesaid
discussion, the plaintiff is not found to have any prima facie case in his favour. In that view
of the matter, appointment of a Commissioner for the purpose of inventory would be a
futile and meaningless exercise. The order passed by the learned trial Judge rejecting such
application deserves to be affirmed though on a different reasoning.‟
       9. Apart from the above, the learned counsel for the revision petitioner cites the
decision in Union of India and another v. Kripal Industries, MANU/RH/0250/1998 Eq.Cit:
AIR 1998 Raj 224, wherein it is held that „Disputed question of fact which can conveniently
be decided by the parties by leading evidence, cannot be referred to Commissioner under
Order 26, Rule 9. Rule 67 of the General Rules (Civil), 1986 bars such a reference, which
rule is not ultra vires. Trial Court was not justified in issuing Commission for investigation as
to whether it was the plaintiff or the defendant who was in possession of the suit plot.‟
       10. Also the learned counsel for the revision petitioner relies on the decision in
D.S.Reddy rep. by his power agent, D.P.S. Reddy v. Dr. G.G. Reddy rep. By his power Agent
M.S. Murthy, Chennai-17 and another, 1999 (I) CTC 172, wherein it is held that „Advocate
Commissioner can be appointed to take inventory in order to safeguard interest of parties
pending disputes and taking of inventories is not necessary to decide issues arising in suit
and order directing taking of inventory is not valid and order appointing Commissioner is
discretionary order and there should be sufficient reasons for an order appointing Advocate
Commissioner.‟
       11. Per contra, the learned counsel for the respondents/petitioners/appellants
supports the order of the trial Court in appointing an Advocate Commissioner in I.A.No.855
of 2007 and according to him, it is the case of the respondents/ petitioners/appellants that
the land has been gifted to V. Ponnusamy Nadar for his loyalty by Vicar Apostle of Madras
who was also their cultivating tenant for two decades and that the name of the said
V.Ponnusamy Nadar figures in the town survey register from the year 1910 onwards which
is suffice to prove the possession of said V. Ponnusamy Nadar and thereafter he has been
in possession and enjoyment of the suit property and subsequently his legal heirs who are
the respondents/petitioners/appellants have inherited the suit property and they have been
in peaceful enjoyment and possession of the suit property and in fact, the said Vicar Apostle
of Madras out of 158 acres in Survey No.49/1, 49/3 in Kottur Village has gifted an extent
of 16.5 acres to the said Ponnusamy Nadar, a cultivating tenant for two decades by means
of settlement deed dated 12.9.1985 and the donee the said Ponnusamy Nadar has
accepted the same and the revision petitioner/respondent/defendant with a view to grab
the respondents suit property has obtained a patta in a suspicious manner in the year 2003
and the same is not valid in law and that the revision petitioner/respondent has managed
to enter their name jointly in the SLR copy with a view to defeat the
respondents/petitioners        right      on      the      suit       property        and       the
petitioner‟s/respondent‟s/defendant‟s           building        is        not          in       the
respondents/petitioners/plaintiffs suit land and the school building is located in a different
land and the revision petitioner/respondent/defendant is now attempting to throw the
respondents/petitioners/plaintiffs from the suit property and therefore, it is just necessary
to appoint an Advocate Commissioner along with a Government Surveyor to measure the
respondents/petitioners suit land.
        12. The learned counsel for the respondents relies on the decision of this in
Ponnusamy Pandaram v. The Salem Vaiyappamalai Jangamar Sangam, AIR 1986 Mad 33,
wherein it is held that „Defendant‟s request for appointment of Commissioner for local
investigate is proper and refusal amounts to failure to exercise jurisdiction and High Court
will interfere under Section 115 of Civil Procedure Code.‟ In the aforesaid decision, it is also
observed that „A party has a right to place evidence which he could require to substantiate
his case before the Court and it is the duty of the Court to receive such evidence unless
there are other justifiable factors in law to decline to receive it. This right of the party to
adduce evidence gets adjudicated in the interlocutory proceedings under Order 26, Rule 9.
When the Court declines to issue the Commission asked for to make local investigation
that order certainly disposes of the right claimed by the party to place the requisite
evidence on his behalf. Therefore, an order refusing to appoint a commissioner under Order
26, Rule 9 to make local investigation and report is a “case decided” and hence revisable
under Section 115.‟
        13. He also cites the decision of this Court in Sivabackyam and another v. Muthu,
2008 (5) CTC 330, wherein it is held that „... it is clear that the learned District Munsif,
Aranthangi, has not acted in accordance with law. All that he has done in the disposal of
the three applications, one for an interim injunction and two for appointment of an
Advocate Commissioner, is to harass the petitioners by throwing out the petitions on flimsy
reasons. The reason adduced by him for rejecting the second application for appointment
of an Advocate Commissioner, is actually no reason at all. I do not know if the learned
District Munsif has acted with any balance in disposing all these applications.‟
        14. He draws the attention of this Court to the decision in Payani Achuthan v.
Chamballikundu Harijan Fisheries Development Co-operative Society and others, AIR 1996
Ker 276, wherein it is held thus:
         “In a suit for injunction to restrain the defendants from interfering with the
         possession due to alleged encroachment into the land of the plaintiff, one of the
         methods to find out as to whether or not there is encroachment is to have the local
         investigation done by a competent Commissioner. The Court cannot prevent a party
         from adducing the best evidence, if such evidence can be gathered with the help of
         a Commissioner. Refusal of the request of the party to appoint a Commissioner
         under Order 26, Rule 9, C.P.C. to make a local investigation in an appropriate case
         amounts to failure of exercise of jurisdiction vested in it. The plaintiff filed a suit for
         permanent injunction restraining defendants from entering into plaintiffs land. He
         filed an application therein for appointment of local Commissioner for
         measurement and demarcation of land. Held, that the same was entitled to be
         allowed and could not have been refused.”
        15. Moreover, he relies on the decision in Chintapatla Arvind Babu and another v.
Smt. K. Balakistamma alias Bhargavi and another, AIR 1992 Andhra Pradesh 300, wherein
it is held as follows:
         “When a party complains that the opposite party was attempting to disturb the
         features and applies for appointment of a Commissioner under Order 26, Rule 9,
         C.P.C. Refusal to allow such petition prevents the party from having clinching
         evidence in proving the said fact. There may be cases where the matter in dispute
         can be resolved by appointment of a Commissioner for localising the site is one
         such case. If the Court declines to appoint a Commissioner, it may result in the
         perpetration of gross injustice if the relief is denied to the aggrieved litigant where it
         is most needed.”
        16. Admittedly, the power of a Court of law to appoint an Advocate Commissioner is
a discretionary one and in law, this discretion has to be exercised judicially by the Court, of
course on well established judicial principles. If a Court of law fails to exercise the discretion
judicially, such failure is of itself no ground for interfering with the order in appeal. As a
matter of fact, the Revisional Authority ought not to interfere, unless it is established that if
the first appellate Court has exercised its discretion judicially, the decision would have been
different from what it was. The aim of local inspection is not so much to procure evidence,
which can be taken in Court but to obtain the same, which due to strange nature, can be
only had at this spot.
        17. In this connection, this Court recalls the decision in V.G.Tari v. Nikonta S Xete, AIR
1975 Goa at page 32, wherein it is held that „where the identity of the suit property is in
doubt by reason of its bearing two registration numbers the proper thing to do is to appoint
a Surveyor as the Commissioner to do local inspection.‟ It is to be noted that an order
appointing a commissioner for making local investigation on matters extraneous to the suit
is bad and liable to be set aside in revision as per decision in Ramkripal v. Mahesh, AIR
1952 Pat. 137. Furthermore, the object of a commission as per Order 26, Rule 9 of Civil
Procedure Code is not to collect evidence which can be taken in Court, but to obtain
evidence for elucidating matters which are local in character and it is in the discretion of
the Court to issue it or not as per decision Re Moosa Kutty‟s case, AIR 1953 Mad 717.
        18. The respondents/petitioners/appellants/plaintiffs in their plaint in suit in para 7
have averred that „the cause of action for the suit has arisen within the jurisdiction of this
Honourable Court and in the year 1885 when the plaintiff ancestors acquired title viz.
Ponnusamy Nadar got the property by way of gift, by Arch Bishop and subsequently when
the act of possession and ownership is established by due entry in favour of the plaintiff on
public document viz., land register and also on subsequent dated on 2.6.2004 when the
defendant is making attempt to commit encroachment and trespass within the property of
plaintiff by proceeding with the act of putting sewerage tank by making attempt to have
connection thereon for the building now under existence of the defendant without any legal
basis and even without establishing the legal right in the manner known to law and
subsequent attempt on the part of the plaintiff to approach police authorities on 2.6.2004
and police authorities have issued L.P. Receipt in 68/CSR/04 J.2, J.2 Adayar police station
dated 2.4.2004 as evidenced etc.‟
        19. A perusal of the plaint shows that the respondents/appellants/plaintiffs have
sought a relief of permanent injunction restraining the revision petitioner/defendant, their
men and agents, subordinates or anybody else claiming under or through them from
interfering with the peaceful possession and enjoyment of suit property by committing the
act of trespass unless and until the right of the revision petitioner/defendant is duly
established and determined in the manner known to law.
        20. In the written statement, the revision petitioner/defendant has, among other
things, mentioned that it denies the averment made in para 3 of the plaint that originally
the lands including the suit property was owned and possessed by one Ponnusamy Nadar
who was gifted with the lands by Arch Bishop of Madras in the year 1885 for which no
documents have been filed and in fact the Arch Bishop of Madras has purchased the lands
situate at Uroor and Kottur villages as per two registered documents bearing
Nos.2118/1885 and 2085/1886 in the office of District Registrar, North-Madras
measuring an extent of more than 180 acres together with Bungalows and the Arch Bishop
of Madras had settled the portion of land comprised in S.Nos.1 and 9/1 of Kottur village
admeasuring an extent of 22 acres and 10 cents in favour of the first defendant‟s society
as per document No.2571/1947 for religious and charitable purpose and the Arch Bishop
of Madras had sold out major portion of lands measuring an extent of 131 acres and 2
cents to Madras Co-operative House Construction Limited, which is now being called as
Gandhi Nagar Co-operative House Construction Limited and the said society had formed a
housing layout and sold to its members who are residing there and ever since from the date
of the settlement deed to till date, the revision petitioner/defendant school is in absolute,
continuous and uninterrupted possession and enjoyment of the lands which includes the
suit property as evident from the revenue records etc.
        21. It is the further stand of the revision petitioner/defendant that the revenue
authorities have confirmed that the revision petitioner/defendant is the sole and absolute
owners of the land and building situate at old S.No.1 (part), 9/1(part), T.S.No.2/1, Block
No.25 of Kottur Village, measuring an extent of more than 22 acres and the
respondents/plaintiffs have failed to place any documents issued by the revenue
authorities to confirm their title and possession over the suit property and that the survey
number mentioned in the suit property is misleading and incorrect one and also that the
respondents/plaintiffs have failed to prove their proximity with their ancestors and failed to
establish the origin of title to the suit property and that the revision petitioner has
established its claim, interest and title in respect of the suit property which is under their
possession and enjoyment since 1885.
        22. The trial Court, while answering the issue No.1 whether the
respondents/plaintiffs are entitled to the relief of permanent injunction as observed in para
10 of its judgment, has observed that „in the suit property there is a school building and
that the civil revision petitioner/defendant is in possession of the same and that the
respondents/plaintiffs are not in possession and enjoyment of the same etc. and has come
to the ultimate conclusion that the suit property is not in possession and enjoyment of the
respondents/plaintiffs and accordingly, the respondents/plaintiffs are not entitled to the
relief of permanent injunction and dismissed the suit with costs.‟ As against the said
judgment and decree of the trial Court, admittedly A.S.No.244 of 2007 is pending on the
file of learned III Additional Judge, City Civil Court, Chennai.
        23. At this stage, this Court worth recalls the decision in Swaroop Sekhar Joe and
others v. Ghanashyam Panda, 1997 AIHC 2258, whereby and whereunder it is observed as
follows:
          “...The lower appellate Court should have considered the question of appointment of
          a survey-knowing Commissioner only after scanning the evidence and if it would
          have considered that the evidence on record was not sufficient to dispose of the
          matter, the question of appointing a survey-knowing Commissioner for the purpose
          of identification should have been considered. I agree with the contention of the
         learned counsel for the petitioners that the impugned order has been passed with
         material irregularity. Accordingly, while setting aside the impugned order of the
         lower appellate Court, I direct that the application of the defendant-appellant for
         appointment of a survey-knowing Commissioner is to be considered by the lower
         appellate Court at the time of hearing of the appeal and if after scanning the
         evidence on record, the lower appellate Court comes to a conclusion that the
         question cannot be resolved on the basis of evidence on record, the question of
         appointment of a survey-knowing Comm-issioner shall be considered.”
       24. Also this Court points out the decision in Tulamaya Chettri and another v.
Younarayan Pradhan, AIR 2004 Sikkim 39, wherein it is observed as follows:
         “Ordinarily we would not have interfered with an order appointing an amin
         commissioner but in the case at hand parties have closed their evidence and when
         the matter was at the stage of arguments the respondents came up with prayer for
         appointment of a commissioner. In view of the admitted fact that parties have
         already closed their evidence, acceding to the prayer for appointment of an amin
         commissioner at this belated stage would amount to permitting the respondents to
         fill up lacunae in their evidence thus leading to a roving inquiry. A learned single
         Judge of the Calcutta High Court in Satish Agarwal v. Tirath Singh, 1996 AIHC 1791,
         has held that when the matter awaits arguments, the prayer made by the
         defendants for local investigation, if allowed would amount to filling up lacunae in
         their evidence and such prayer should not be allowed.”
       25. As far as the present case is concerned, the respondents/plaintiffs claim right to
the ownership of the property coupled with possession by means of gift deed in the year
1885 purported to have been executed in favour of Ponnusamy Nadar and according to the
plaintiffs, even PLR register attested by Tahsildar will substantiate their rights even after
the death of Ponnusamy Nadar etc. which will reveal their status to claim the property etc.
and it is their case that the revision petitioner/defendant is attempting to encroach the
property described in the schedule of the property etc. In the present case on hand, the
affidavit in I.A.No.855 of 2007 has been sworn in by the Power of Attorney V.Santhanam
representing the respondents/plaintiffs is dated 19.3.2007 and when the appeal itself has
been posted for final arguments, it appears that an order in I.A.No.855 of 2007 has been
passed by the first appellate Court on 7.8.2009.
       26. Be that as it may, in view of the divergent stand taken by the parties and also
bearing in mind of another fact admittedly A.S.No.244 of 2007 is pending on the file of first
appellate Court, without expressing any opinion on the merits of the case, this Court is of
the considered view that I.A.No.855 of 2007 has been disposed of on 7.8.2009 even
though it has been filed in the year 2007, when the appeal itself is ripe for hearing of the
final arguments of the respective sides and it is for the Court of law to act based on the
available oral and documentary evidence on record in a given case and as a matter of fact,
on the basis of the facts and circumstances of the present case, the Commissioner cannot
be permitted to perform the functions of a Court of law and as such, the Commissioner
cannot be appointed to procure or gather evidence by filling up the lacuna at the appellate
stage (when it is not the case of the first appellate Court that there is insufficient or
doubtful evidence available on record) and in that view of the matter, the order passed by
the first appellate Court in I.A.No.855 of 2007 is not correct in the eye of law and
resultantly, the civil revision petition is allowed.
       27. In the result, the civil revision petition is allowed. The order of the first appellate
Authority in I.A.No.855 of 2007 dated 7.8.2009, appointing an Advocate Commissioner to
inspect the suit property and directing him to note down the demarcation of the property
with the help of Government Surveyor without collecting any evidence on either side and
without noting who is in possession of the property and with a further direction to note
down only the physical features of each area of the property and to submit his report on or
before 19.8.2009, is set aside and the said I.A.No.855 of 2007 is dismissed as not
maintainable. The first appellate Authority is directed to take up the A.S.No.244 of 2007 for
hearing finally and to dispose of the same within two months from the date of receipt of
copy of this order and to report compliance to this Court without fail. Considering the facts
and circumstances of the case, the parties are directed to bear their own costs in this
revision. Consequently, connected miscellaneous petition is closed.
                                                                            Revision allowed.

                                 [2010 (1) T.N.C.J. 156 (Mad)]
                                     MADRAS HIGH COURT
BEFORE:
              M. VENUGOPAL, J.
                             R. CHINTHAMANI AND ANOTHER                            ...Petitioners
                                             Versus
                            C. SAMIAPPAN                                         ...Respondent
    [Civil Revision Petition (PD) No. 3540 of 2009 and M.P. No. 1 of 2009, decided on 10th
                                        November, 2009]
        Civil Procedure Code, 1908—Order 26, Rule 9—Advocate Comm-issioner—
Appointment of—Application made to inspect suit property and to assess damage in
respect of well and crops etc.—Application allowed by trial Court—Hence, this petition—Held,
trial Court applied its mind to facts of case and passed order—Further no prejudice would be
caused to either parties—Hence, no interference warranted.                            (Para 10)
        Counsel.—Mr. P.A. Sudesh Kumar, for the petitioners.
                                            JUDGMENT
        M. VENUGOPAL, J.—The petitioners/respondents/Defendants 1 and 2 have filed this
Civil Revision Petition as against the order dated 12.10.2009 made in I.A.No.387 of 2009
in O.S.No.109 of 2009 passed by the learned Principal Subordinate Judge,
Gobichettypalayam in allowing the application filed by the respondent/petitioner/plaintiff
under Order 26, Rule 9 of Code of Civil Procedure praying for appointment of Advocate
Commissioner to inspect the suit property and to assess the damage made in respect of
two big wells, 7.5 H.P. Motors, Electricity Connection, Bore well, 5 H.P. pumpsets, etc. and
to submit a detailed report in regard to the exact amount of sum sustained as damages
along with the plan.
        2. To avoid an avoidable delay an issuance of notice to the respondent/plaintiff is
dispensed with in the interest of Justice.
        3. The trial Court while passing an order in I.A.No.387 of 2009 in O.S.No.102 of 2009
dated 12.10.2009 has inter alia observed that there is no legal defence projected in the
counter and since the application has been filed praying for appointment of Advocate
Commissioner to assess the damages sustained etc., in the interest of Justice, the petition
is allowed and resultantly appointed Thiru.Mugundan as Advocate Commissioner fixing his
remuneration of Rs.3,000/- and the Advocate Commissioner has been directed to submit
his report and plan by 16.10.2009 and to avoid an unavoidable delay, this Court dispensed
with the issuance of the notice in the interest of Justice.
        4. According to the learned counsel for the revision petitioners, the order of the trial
Court passed in I.A.No.387 of 2009 in O.S.No.102 of 2009, dated 12.10.2009 suffers from
illegality in the sense that an Advocate Commissioner cannot be appointed by the Court of
law to gather or procure evidence and moreover the order passed by the trial Court in
appointing the Advocate Commissioner is not a speaking order and the trial Court has
overlooked the pleadings of the respondent/plaintiff as to the reasons assigned for the
appointment of Advocate Commissioner sought for in this case that is for the purpose of
recording evidence of the alleged damages, in which there is no sanction in law and further
the respondent/plaintiff is trying to prove his possession through the Commissioner which
cannot be countenanced in law by any means and the prayer for appointment of Advocate
Commissioner is only a luxury and it is not a case of necessity and in short the order
passed by the trial Court in I.A.No.387 of 2009 in O.S.No.102 of 2009 ought to be
considered as non-est for the simple reason that it is a less speaking order and the
application filed for the appointment of Commissioner is nothing but an abuse of process
of law and unfortunately, these aspects of the matter have not been considered and
appreciated by the trial Court in a proper perspective and therefore, prays for allowing the
Civil Revision Petition in furtherance of substantial cause of justice.
        5. One cannot ignore an important effect that it is not a aim of Order 26, Rule 9 of
the Code of Civil Procedure to assist the litigant in order to collect evidence, where the
litigant himself can get the evidence. Admittedly, the application for appointment of an
Advocate Commissioner cannot be allowed by a Court of law in a routine or a mechanical
fashion. There is no quarrel in regard to the proposition that the appointment of the
Commissioner is purely within the domain and discretion of a competent Court of law and
the concerned Court is free and at liberty to exercise such power at any stage of the suit for
elucidating any matter in dispute or otherwise to assess the Code in arriving at a proper
conclusion.
        6. As far as the present case is concerned, the respondent/plaintiff has filed
I.A.No.387 of 2009 in O.S.No.102 of 2009 praying for appointment of Advocate
Commissioner for the purpose of inspecting the suit property and to assess the damages in
regard to (1) two big wells (2) one deep bore well (3) 7.5 H.P. Motors (4) Pumpsets along
with 5 H.P. Motors, together with pumpsets with two Electricity Connections, Starter Switch,
Double throw switch, Meter, etc., and also the damages of plantain crops, coconut crops,
ground pipe line, cable wire on the surface of the land, Drip irrigation wires, damage to 20
plantain trees, two coconut trees, etc.
        7. In the counter filed by the second revision petitioner/second defendant before the
trial Court it is stated among other things that both the parties are in joint possession of the
suit properties and based on the false complaint which has been prepared by legal brain
with an intent to vacate the respondents from the suit properties, the plaintiff has filed Civil
and Criminal cases and even in the Criminal Case documents shows the joint possession of
the respondents in the suit properties and the commissioner cannot decide the possession
and enjoyment and recently the respondent/plaintiff and his henchmen destroyed the
respondent‟s house and they assaulted them. To this effect a complaint has been lodged
before the concerned Police Station and with an intent to collect evidence the application
for an Advocate Commissioner has been filed, which is not sustainable in the eye of law
and therefore, prayed for dismissal of the application.
        8. This Court heard the learned counsel for the petitioners/defendants appearing for
the parties and noticed contentions.
        9. It is to be noted that the report of the Commissioner can only be an aid to the trial
Court in arriving at its findings and per se a Commissioner‟s report is not an evidence in the
considered opinion of this Court. As a matter of fact, the report of the Commissioner is a
part of record and it cannot be rejected merely because commissioner has not been
examined.
        10. On going through Paragraph 5 of the order passed by the trial Court in I.A.No.387
of 2009 in O.S.No.102 of 2009, it is clear that even though the said order is not a detailed
one, yet the Court has applied its mind and come to the conclusion that in the interest of
Justice, the application for appointment of Advocate Commissioner has to be allowed and
accordingly, has allowed and appointed Thiru.Mugundan, Advocate as Commissioner and
fixed his remuneration to inspect the suit properties and to value the damages sustained to
the crops and other properties. The same will not cause prejudice to either parties and at
first, when the commissioner submits a report to the trial Court, then the same will have to
be considered by the trial Court along with other evidence available in the case on record in
order to resolve the disputes/controversies involved in the suit, so that the same can be
given a quietus in a complete and comprehensive manner and viewed in that perspective,
this Court is of the considered view that the order of the trial Court in appointing an
Advocate Commissioner in I.A.No.387 of 2009 is not an arbitrary, whimsical, fanciful and
capricious one. On the other hand, the same is ordered based on the facts and
circumstances of the case in an integral fashion and looking at from any angle this civil
revision petition fails.
        In the result, this civil revision petition is dismissed leaving the parties to bear their
own cost. The order passed by the trial Court in I.A.No.387 of 2009 is affirmed by this Court
for the reasons ascribed in the revision. Considering the facts and circumstances of the
case, there shall be no order as to costs.
                                                                             Revision dismissed.

                                 [2010 (1) T.N.C.J. 159 (Mad)]
                                     MADRAS HIGH COURT
BEFORE:
            S. RAJESWARAN, J.
                           KUPPU CHETTIAR                                            ...Petitioner
                                            Versus
                          ARULMIGHU RENUGAMBAL KOIL TRUST                      ...Respondent
  [C.R.P. (PD) No. 3725 of 2007 and M.P. No. 1 of 2007, decided on 12 November, 2009]
                                                                        th


        Civil Procedure Code, 1908—Order 6, Rule 17—Amendment of pleading—Suit for
permanent injunction sought to be amended for declara-tion and for mandatory injunction
to demolish construction put up by defendant and to recover possession—Defendant
contending that he is in possession for last 35 years—Plaintiff saying he trespassed after
filing of suit—Held, an issue needs to be framed with regard to when defendant petitioner
entered into premises and put up construction—Hence, amend-ment was rightly allowed—
No interference warranted.
                                                                       (Paras 25, 27 and 28)
        Case law.—AIR 1996 SC 2358; 2004 (3) SCC 392; 2007 (4) MLJ 378; AIR 2001 SC
699; 2004 (6) SCC 415—referred.
        Counsel.—M/s. M. Sriram and D. Rajendran, for the petitioner; M/s. S. Hemalatha and
J. Sudha, for the respondent.
                                          JUDGMENT
        S. RAJESWARAN, J.—The petitioner is challenging the Order dated 19.9.2007 made in
I.A.No.647 of 2006 in O.S.No.58 of 2000 on the file of the District Munsif, Polur,
Tiruvannamalai District.
        2. The defendant in O.S.No.58 of 2000 is the revision petitioner before this Court.
        3. The suit in O.S.No.58 of 2000 has been filed by the plaintiff for permanent
injunction restraining the petitioner/defendant from interfering with the plaintiff‟s peaceful
possession and enjoyment of the suit property.
        4. The case of the plaintiff is that they were in possession of the suit schedule
property for more than 75 years. The defendant has no manner of right in respect of the
suit schedule property. While so, the defendant took on lease three shops bearing Nos.10,
11 and 12 belonging to the plaintiff Devasthanam. Since they did not pay the rentals
properly and regularly, the plaintiff filed these suits in O.S.Nos.290 of 1999, 292 of 1999
and 317 of 1999 and the same are pending. Having that in mind and to create disturbance
to the plaintiff Devasthanam, the defendant on 18.2.2000 attempted to trespass into the
suit property. The said attempt was successfully thwarted by the Devasthanam and a
Police complaint was also given. However, the defendant has been proclaiming that he
would trespass into the suit property. The defendant has got money and muscle power and
he is likely to trespass into the suit property at any time. Hence, the above suit was filed.
        5. A written statement has been filed by the defendant and the suit is being
contested.
        6. Pending suit, the plaintiff filed an application in I.A.No.647 of 2006 under Order 6,
Rule 17, C.P.C. for amending the prayer in the suit from that of permanent injunction to
that of declaration and for mandatory injunction to demolish the construction put up by the
defendant and to recover possession. The said application was resisted by the
defendant/revision petitioner herein by filing a counter. The trial Court in and by order
dated 19.9.2007 allowed the application filed by the plaintiff for amendment. Aggrieved by
the same, the above revision petition has been filed by the defendant under Article 227 of
the Constitution of India.
        7. This Court on 13.11.2007 granted an interim stay of further proceedings of the
suit in O.S.No.58 of 2000 and the said interim stay was later on extended.
        8. Heard the learned counsel for the revision petitioner and the learned counsel for
the respondent. I have also gone through the entire documents available on record.
        9. The learned counsel for the petitioner submits that the order passed by the trial
Court allowing the application for amendment is wholly contrary to the object and scope of
Order 6, Rule 17, C.P.C. According to him, the trial Court failed to consider the statement
made by the defendant in the written statement on 1.10.2000 that alleged constructions
were put up by the defendant more than 35 years ago. Further, the plaintiff has filed the
application only after six years and the delay was not at all explained by the plaintiff. The
Court below without assigning any reason allowed the same.
        10. Further, he submits that the prayer sought for in the application would change
the entire case of the plaintiff and it would introduce a new case of action for which
amendment cannot be sought for.
        11. In support of his contentions, the learned counsel for the petitioner relied on
decisions reported in
           (1) AIR 1996 SC 2358 (Radhika Devi v. Bajrangi Singh and others)
           (2) (2004) 3 SCC 392 (T.N.Alloy Foundry Co. Ltd. v. T.N. Electricity Board and
                  others)
         (3)      (2007) 4 MLJ 378 (SC) (Shiv Gopal Sah @ Shiv Gopal Sahu v. Sita Ram
                  Saraugi and others)
        12. Per contra, the learned counsel for the respondent/plaintiff submits that after
filing of the suit for bare injunction against the defendant from either interfering or
disturbing the possession of the plaintiff in respect of the suit property, the defendant
trespassed into the property and has put up the construction which necessitated the
plaintiff to file the amendment application. He submits that if the defendant had already
put up the construction as alleged by the defendant, nothing would have prevented the
plaintiff from filing a suit for declaration and mandatory injunction at that point of time
itself. Therefore, he submits that that itself would show that there was no construction put
up by anyone much less the defendant in the suit property. However, she submits that the
amendment sought for is only to sub-serve the ultimate cause of justice and avoiding
further litigation. In support of her contention, she relied on the following decisions:
            (1) AIR 2001 SC 699 (Ragu Thilak D.John v. S.Rayappan)
            (2) (2004) 6 SCC 415 (Pankaja and another v. Yellappa (dead) by LRs. and
                  others).
        13. I have considered the rival submissions carefully with regard to facts and
citations.
        14. The suit was filed by the respondent/plaintiff initially for permanent injunction
restraining the petitioner/defendant herein from interfering with these peaceful possession
of the suit property. Initially, therein was an attempt by the defendant to encroach upon the
suit property and hence, the suit was filed for injunction only. However, according to the
plaintiff, pending suit, the defendant had entered into the suit property and constructed the
building and his possession of the same. Therefore, the amendment petition was filed to
amend the prayer to that of declaration of title of the suit property and to demolish the
building constructed by the defendant and to take possession of the suit property through
Court order. This was resisted by the defendant/revision petitioner by stating that the
respondent/plaintiff was not in possession of the suit property as the suit property is a
temple poramboke. Because it is a temple poramboke, the respondent/plaintiff cannot
claim right and possession against the trespassers.
        15. However, the defendant/petitioner was in occupation of the suit property about
35 years ago by constructing a tiled house therein. Therefore, the alleged construction was
not put up recently by the defendant/petitioner. Hence, the defendant/petitioner prayed
for dismissal of the petition.
        16. Now, let me consider the scope of Order 6, Rule 17 and the judgments relied on
by the parties.
        17. AIR 1996 SC 2358 (cited supra), the Hon‟ble Supreme Court has held as follows:
           “5. We find no force in the contention of the appellant. No doubt, the
                  amendment of the plaint is normally granted and only in exceptional cases
                  where the accrued rights are taken away by amendment of the pleading, the
                  Court would refuse the amendment. This Court in Laxmidas Dahyabhai
                  Kabarwala v. Nanabhai Chunilal Kabarwalal (SCR at p.582) held thus:
         “It is, no doubt, true that, save in exceptional cases, leave to amend under Order 6,
         Rule 17 of the Code will ordinarily be refused when the effect of the amendment
         would be to take away from a party a legal right which had accrued to him by lapse
         of time. But this rule can apply only when either fresh allegations are added or fresh
         reliefs sought by way of amendment. Where, for instance, an amendment is sought
         which merely clarifies an existing pleading and does not in substance add to or alter
         it, it has never been held that the question of a bar of limitation is one of the
         questions to be considered in allowing such clarification of a matter already
         contained in the original pleading. The present is a fortiori so. The defendants here
         were not seeking to add any allegation nor to claim any fresh relief which they had
         prayed for in the pleading already filed.”
           6. In that case this Court considered the cross-objections to be treated as a
                cross-suit since no alteration was being made in the written statement to
                treat it as a plaint originally instituted. The amendment which was sought to
                be made was treated to be clarificatory and, therefore, this Court had upheld
                the amendment of the written statement and treated it to be a cross-suit.
                The ratio therein squarely applies to a fact situation where the party
                acquires right by bar of limitation and if the same is sought to be taken
                away by amendment of the pleading, amendment in such circumstances
                would be refused. In the present case, the gift deed was executed and
                registered as early as 28.7.1978 which is a notice to everyone. Even after
                filing of the written statement, for 3 years no steps were taken to file the
                application for amendment of the plaint. Thereby the accrued right in favour
                of the respondents would be defeated by permitting amendment of the
                plaint. The High Court, therefore, was right in refusing to grant permission to
                amend the plaint.”
      18. In (2004) 3 SCC 392 (cited supra), the Hon‟ble Supreme Court has held as
follows:
          “2. Shri T.L.V. Iyer, learned senior counsel appearing for the appellant, urged
                that the view taken by the High Court in rejecting the amendment of the
                appellant was erroneous. The law as regards permitting amendment to the
                plaint, is well settled. In L.J. Leach and Co. Ltd. v. Jardine Skinner and Co., it
                was held that the Court would as a rule decline to allow amendments, if a
                fresh suit on the amended claim would be barred by limitation on the date
                of the application. But that is a factor to be taken into account in exercise of
                the discretion as to whether amendment should be ordered, and does not
                affect the power of the Court to order it.”
      19. In 2007 (4) MLJ 378 (SC) (cited supra), the Hon‟ble Supreme Court observed as
follows:
         “12. It is quite true that this Court in a number of decisions, has allowed by way
                of an amendment even the claims which were barred by time. However, for
                that there had to be a valid basis made out in the application and first of all
                there had to be bona fides on the part of the plaintiffs and a reasonable
                explanation for the delay. It is also true that the amendments can be
                introduced at any stage of the suit, however, when by that amendment an
                apparently time-barred claim is being introduced for the first time, there
                would have to be some explanation and secondly, the plaintiff would have to
                show his bona fides, particularly because such claims by way of an
                amendment would have the effect of defeating the rights created in the
                defendant by the lapse of time. When we see the present facts, it is clear
                that no such attempt is made by the plaintiffs anywhere more particularly in
                the amendment application.”
      20. Citing these three judgments, the learned counsel for the petitioner submits that
the amendment application ought to have been rejected as the amended claim would be
barred by limitation.
      21. In AIR 2001 SC 699 (cited supra), the Hon‟ble Supreme Court held as under:
         “5.    After referring to the judgments in Charan Das v. Amir Khan1, L.J. Leach &
                Co. Ltd. v. Jardine Skinner & Co., Ganga Bai v. Vijay Kumar, Ganesh Trading
                Co. v. Moji Ram and various other authorities, this Court in B.K. Narayana
                Pillai v. Parameswaran Pillai, held: (SCC p.715, para 3)
           3. The purpose and object of Order 6, Rule 17, CPC is to allow either party to
                alter or amend his pleadings in such manner and on such terms as may be
                just. The power to allow the amendment is wide and can be exercised at any
                stage of the proceedings in the interests of justice on the basis of guidelines
                laid down by various High Courts and this Court. It is true that the
                amendment cannot be claimed as a matter of right and under all
                circumstances. But it is equally true that the Courts while deciding such
                prayers should not adopt a hyper-technical approach. Liberal approach
                should be the general rule particularly in cases where the other side can be
                compensated with the costs. Technicalities of law should not be permitted
                to hamper the Courts in the administration of justice between the parties.
                Amendments are allowed in the pleadings to avoid uncalled-for multiplicity
                of litigation.
           6. If the aforesaid test is applied in the instant case, the amend-ment sought
                could not be declined. The dominant purpose of allowing the amendment is
                to minimise the litigation. The plea that the relief sought by way of
                amendment was barred by time is arguable in the circumstances of the
                case, as is evident from the perusal of averments made in paras 8(a) to 8(f)
                of the plaint which were sought to be incorporated by way of amendment.
                We feel that in the circumstances of the case the plea of limitation being
                disputed could be made a subject-matter of the issue after allowing the
                amendment prayed for.”
       22. In (2004) 6 SCC 415 (cited supra), the Hon‟ble Supreme Court held as follows:
        “14. The law in this regard is also quite clear and consistent that there is no
                absolute rule that in every case where a relief is barred because of
                limitation an amendment should not be allowed. Discretion in such cases
                depends on the facts and circumstances of the case. The jurisdiction to
                allow or not allow an amendment being discretionary, the same will have to
                be exercised on a judicious evaluation of the facts and circum-stances in
                which the amendment is sought. If the granting of an amendment really
                sub-serves the ultimate cause of justice and avoids further litigation the
                same should be allowed. There can be no straitjacket formula for allowing
                or disallowing an amendment of pleadings. Each case depends on the
                factual background of that case.”
       23. Citing the above two judgments, the learned counsel for the respondents submits
that even assuming without admitting that the new claim is barred by limitation still the
amendment can be allowed on the facts and circumstances of a particular case.
       24. The main contention of the learned counsel for the petitioner is that he has been
in possession of the suit schedule property even at the time of filing of the suit and the
construction has been put up by him for more than 35 years ago. He relies on the written
statement filed by him in this regard. But, according to the respondent/plaintiff, the
petitioner/defendant trespassed into the suit when the suit is pending and therefore, they
sought for amendments. In fact, in the affidavit filed in support of I.A.No.647 of 2006, it
was specifically stated that the petitioner entered into the suit schedule property and put up
the construction when the suit is pending for bare injunction.
       25. In the light of the above facts and circumstances, an issue needs to be framed
with regard to when the petitioner/defendant entered into the premises and put up the
construction. Only when that issue is settled, the question of limitation barring the suit may
come into picture and therefore, the amendment could not be rejected at this stage.
       26. In fact, 2004 (6) SCC 415 (cited supra), the Hon‟ble Supreme Court has observed
that there is no absolute rule in every case where a relief is barred because of limitation an
amendment should not be allowed and the discretion in such cases depends upon the facts
and circumstances of the case.
       27. In the light of the peculiar facts and circumstances of the case, I am of the
considered view that the amendment as sought for by the respondent/plaintiff was rightly
allowed by the trial Court and I do not find any infirmity in the order.
       28. In the result, the above civil revision petition fails and the order passed by the
trial Court is upheld. No costs.
       29. Since the suit is of the year 2000, I direct the trial Court to dispose of the suit
within a period of four months from the date of receipt of a copy of this order.
                                                                           Revision dismissed.



                                 [2010 (1) T.N.C.J. 165 (SC)]
                                      SUPREME COURT
BEFORE:
             V.S. SIRPURKAR AND DEEPAK VERMA, JJ.
                             KAMRUL ISAM ALVI                                      ...Appellant
                                           Versus
                          STATE OF M.P.                                        ...Respondent
  [Civil Appeal No. 7312 of 2009 (Arising out of SLP (C) No. 11118 of 2007), decided on 4th
                                      November, 2009]
        Land Acquisition Act, 1894—Sections 4, 18 and 25—Acquisition of land—
Compensation accepted under protest—With claim of compensation for water reservoir and
sluice gate—Reference Court assessed Rs. 6,46,579.95 for water reservoir and sluice gate—
High Court held amounts claimed be payable—Bona fide mistake on part of Government
Advocate who not noticed order dated 5.7.1983 and appellant‟s earlier application before
Land Acquisition Officer—High Court‟s order quashed—Award of Reference Court restored
with all consequential benefits.
                                                                 (Paras 2, 4, 18, 20 and 21)
        Case law.—AIR 1981 P&H 57—relied on.
                                        Important point
        Since no appeal preferred by State and order passed by Reference Court attained
finality.
                                          JUDGMENT
        DEEPAK VERMA, J.—Leave granted.
        2. Appellant‟s land admeasuring 3.10 acres situated at village Pehantala, Tehsil and
District Hoshangabad falling in Survey No. 15, was acquired for construction of Bagda
Branch Canal. A notification was issued under Section 4 of the Land Acquisition Act, 1894
(for short „the Act‟) on 9.11.1973. The Land Acquisition Officer passed an award dated
21.2.1975 determining the amount of compensation payable to the appellant. He assessed
the compensation at Rs. 6,523.95. The said compensation was accepted by the appellant
under protest and reference was sought to be made to the Reference Court by filing an
application under Section 18 of the Act.
        3. Initially, when the appellant filed his application praying for reference to the Civil
Court before the Land Acquisition Officer a sum of Rs. 25,000/- was claimed on account of
water reservoir and sluice gate constructed thereon, which was in addition to a claim of
compensation of Rs. 15,500/- in respect of the acquired land. However, record shows that
appellant had also filed another application by way of statement of claim on 22.3.78 before
the Land Acquisition Officer, Hoshangabad, praying therein that compensation for water
reservoir and sluice gate installed thereon should be payable at Rs. 6,46,579.95.
        4. Accepting the contention of the appellant that the Land Acquisition Officer had not
awarded compensation with respect to the water reservoir and the sluice gate, the
Reference Court, while noting that it cannot exercise the original jurisdiction of Land
Acquisition Officer, vide order dated 5.7.1983, remitted the matter to the Land Acquisition
Officer for fixation of compensation with respect to water reservoir and sluice gate. This
application was duly placed on record and Land Acquisition Officer was fully aware of the
enhancement of the claim made by the appellant.
        5. However, the Land Acquisition Officer vide his award dated 28.10.1983 even
though considered that appellant had claimed Rs. 6,46,579.95, as compensation towards
water reservoir and sluice gate but in his wisdom accepting the evaluation report of the
Irrigation Ministry and rejecting that of an Engineer he awarded a sum of Rs.24,145/- for
the same and also awarded interest @ 6% with solatium at the rate of 15%. Thus, the total
amount came to be Rs.43,463.75.
        6. Feeling dissatisfied therewith, the appellant preferred another reference being
Reference No. 46/84.
        7. It is also pertinent to mention here that before the Reference Court, that is, First
Additional District Judge, Hoshangabad in Reference Case No. 46/84 in the statement of
claim filed by the appellant on 24.11.1984, he had specifically claimed a sum of
Rs.6,46,579.95 as compensation for the water reservoir and sluice gate installed therein.
        8. Order dated 5.7.1983 passed by Reference Court makes it clear that award was
contested mainly on two grounds. Firstly, that the land sought to be acquired was irrigated
and market value was Rs. 5000/- per acre and secondly, the compensation regarding
Bandhan i.e., water reservoir and sluice gate should have been fixed at Rs. 6,46,579.95.
The Reference Court was of the opinion that the compensation for the water reservoir and
sluice gate had not been assessed, therefore, matter deserved to be remanded to the Land
Acquisition Officer.
        9. Following is the relevant and operative part of the order dated 5.7.1983:
         “In the result the reference is sent back to the Land Acquisition Officer with
         direction that it shall fix the compensation regarding the acquired Bandhan and
         gates. The evidence adduced in the Court will be read as evidence before the Land
         Acquisition Officer after fixing the compensation it is contested by the applicant
         then the Land Acquisition Officer may again make reference as per law. Parties to
         appear before Land Acquisition Officer.”
                                                                                          (Sd/-)
                                                                         First Addl.Judge to the
                                                                        Court of District Judge.
                                                                                Hoshangabad.
       10. After remand by Reference Court to the Land Acquisition Officer, fresh award
came to be passed on 26.10.1983. In the same, despite specific direction issued by
Reference Court, as noted earlier, the amount of compensation for water reservoir and
sluice gate was again fixed only at Rs. 43,463/-. The appellant herein once again filed
application under Section 18 of the Act praying for reference to the Civil Court for grant of
adequate and proper compensation for the said reservoir and sluice gate.
       11. The Reference Court vide order dated 20.6.1994, after considering the evidence
available on record and relying on a decision of the High Court of Punjab & Haryana in the
case of Radhey Shyam v. State of Haryana, AIR 1981 (P&H) 57, fixed a sum of Rs.5,45,738
as compensation for the reservoir and sluice gate together with 30% solatium and interest
as required to be paid to the appellant under the provisions of the Act.
       12. Feeling aggrieved by the said order/award passed in Reference Case No. 46/84
(old No. 1/77) on 20.6.1994, respondent the State of Madhya Pradesh preferred an appeal
in the High Court of Madhya Pradesh at Jabalpur under Section 54 of the Act.
       13. Vide the impugned judgment and order dated 2.4.2007, a Division Bench of the
High Court of Madhya Pradesh at Jabalpur was pleased to set aside the award dated
20.6.1994 passed by Reference Court in favour of the appellant and the compensation of
Rs.43,463 for water reservoir and sluice gate, as was fixed by the Land Acquisition Officer
after remand, has been upheld.
       14. Hence, this appeal.
       15. Critical examination and perusal of the impugned order passed by the High Court
shows that it proceeded on the assumption that appellant had not claimed amount of Rs.
6,46,579.95 as compensation for water reservoir and sluice gate and he had confined his
claim only at Rs. 25,000/- for the same.
       16. It appears to us that the learned Government Advocate, who appeared before the
Division Bench, had probably due to bona fide mistake not brought to the notice of the
Court, appellant‟s application/statement of claim dated 22.3.1978 claiming specifically a
sum of Rs. 6,46,579/- as compensation for water reservoir and sluice gate.
       17. Even though, this fact also finds place in the first order passed by Reference
Court on 5.7.1983 wherein, in the second part of the said order, which is relevant for the
purpose of deciding the said appeal, it has been mentioned as under:
        “The applicant has contested the award on two grounds firstly the acquired land
        was irrigated one and the works value of it at the time of acquisition was Rs. 5000/-
        per acre hence he is entitled to Rs. 15,500/- as compensation for the land, and
        secondly, the Land Acquisition Officer has not fixed the compensation regarding the
        Bandhan and its sluice gates fixed in the said Bandhan for which the appellant is
        entitled to Rs.6,46,579.95 P as compensation.”
       18. It is not disputed before us that against the said order passed by Reference Court
on 5.7.1983, no appeal was preferred by the State and the said order had attained finality.
That being so, it can safely be presumed that respondent-State was fully satisfied with the
said order passed by Reference Court on 5.7.1983. In the said order, it is categorically
mentioned by the learned Judge of the Reference Court that the amount claimed by
appellant for water reservoir and sluice gate be assessed at Rs.6,46,579.95.
       19. Once this order came to be passed and matter stood remitted to the Land
Acquisition Officer, obviously, the parties went to trial with the clear understanding that
what has been claimed by the appellant herein for the water reservoir and sluice gate was
as mentioned hereinabove and not at the rate of Rs.25,000/- only as was claimed earlier.
       20. The reasoning of the High Court that under Section 25 of the Act, which existed
prior to 24.9.1984, only those amounts would be payable to the appellant which have been
claimed specifically, does not appear to be borne out from the record. In the teeth of the
order dated 5.7.1983, appellant‟s application dated 22.3.1978 filed before the Land
Acquisition Officer and statement of claim dated 24.11.1984 filed by the appellant, it was
crystal clear that a sum of Rs.6,46,579.95 was claimed for water reservoir and sluice gate.
Thus, the reasoning of the High Court does not appear to be legally tenable.
       21. Obviously, it appears to be a bona fide mistake on the part of the learned
Government Advocate who did not notice the Order dated 5.7.1983 and the appellant‟s
earlier application filed before the Land Acquisition Officer on 22.3.1978 wherein a specific
claim was made for awarding compensation for the water reservoir and sluice gate at Rs.
6,46,579.95. That being so, we are of the opinion that looking to the matter from any
angle, the impugned judgment cannot be sustained in law. It is hereby set aside and
quashed. The award of the Reference Court dated 20.6.1994 in Reference Case No. 46/84
(old No. 1/77) is hereby restored with all consequential benefits as mentioned therein.
       22. The appeal stands allowed to the aforesaid extent with costs throughout.
Counsel‟s fee Rs. 10,000/-.
                                                                             Appeal allowed.



                                 [2010 (1) T.N.C.J. 169 (SC)]
                                      SUPREME COURT
BEFORE:
             TARUN CHATTERJEE AND R.M. LODHA, JJ.
                     BALESHWAR RAJBASHI AND OTHERS                                 ...Appellants
                                             Versus
THE BOARD OF TRUSTEES FOR THE
                          PORT OF CALCUTTA AND OTHERS                          ...Respondents
  [Civil Appeal No. 7394 of 2009 (Arising out of SLP (C) No. 22912 of 2008), decided on 6 th
                                        November, 2009]
        Contract Labour (Regulation and Abolition) Act, 1970—Sections 5 and 10—Resolution
of dispute concerning abolition of contract labour in the works of sleeper renewal of railway
tracks and other works—Central Government through notification prohibited employment of
contract labour—Challenge to legality—Direction of High Court to approach Ministry—
Division Bench ought to have considered the matter on its own merit within per-missible
limits of judicial review—Matter remitted back to High Court for fresh consideration.
                         (Paras 2, 5, 8 and 13)
                                         Important point
        The Division Bench gravely erred in overlooking and ignoring the fact that the Central
Government had already taken a decision in exercise of its power under Section 10(1) after
following the consultative process provided in sub-section (2) of Section 10 and the relevant
aspects mentioned therein. There was no occasion much less justification to direct CPT to
approach the Ministry of Labour through Ministry of Shipping. The Division Bench ought to
have considered the matter on its own merit within the permissible limits of judicial review.
                                           JUDGMENT
        R.M. LODHA, J.—Delay condoned. Leave granted.
        2. This appeal by special leave is directed against the judgment and order dated
March 31, 2008 passed by the Division Bench of High Court of Calcutta whereby the Board
of Trustees for the Port of Calcutta - Respondent No. 1 (for short, „CPT‟) has been directed to
approach the Ministry of Labour through Ministry of Shipping for resolution of the dispute
concerning abolition of contract labour in the works of sleeper renewal of railway tracks,
repairing/restoration and laying and linking of tracks in the establishment of CPT.
        3. The appellants are contract labour who claim to have worked continuously from
1988 until 2006 under different contractors engaged by CPT for maintenance of railway
track within their complex. Upon issue being raised by them, a Committee was constituted
under Section 5 of the Contract Labour (Regulation and Abolition) Act, 1970 (for short,
„Act‟) by Central Advisory Contract Labour Board (for short, „Central Board‟) to study the
working of contract labour system in the jobs/works of sleeper renewal railway tracks,
repairing/restoration and laying and linking of tracks in the establishment of CPT and make
suitable recommendation, whether or not the employment of contract labour in the above
jobs/works in the establishment of CPT be prohibited under the Act. The Committee in its
report opined that works/jobs of sleeper renewal of railway tracks in the establishment of
CPT were of regular nature attracting Section 10(2) of the Act, 1970 and, accordingly, re-
commended for prohibition of contract labour in respect of the said jobs.
        4. Despite recommendation of the Committee constituted under Section 5 of the Act,
the Central Government decided not to prohibit employment of contract labour in the
jobs/works of sleeper renewal of railway tracks, repairing/restoration and laying and
linking of tracks in the establishment of CPT which led to the filing of writ petition by the
present appellants before the High Court at Calcutta. Vide order dated July 22, 2004, the
High Court directed the Central Government to reconsider the issue concerning abolition of
contract labour in CPT and pass a fresh order after hearing all the parties concerned.
        5. In pursuance of the aforesaid order of the High Court, the Central Government
reconsidered the matter and issued a notification on July 7, 2005 in exercise of the powers
conferred by sub-section (1) of Section 10 of the Act, 1970 prohibiting the employment of
contract labour in the works of sleeper renewal of railway tracks, repairing/restoration and
laying and linking of tracks in the establishment of CPT with effect from the date of
publication of the notification.
        6. Issuance and publication of the notification dated July 7, 2005 led to second round
of litigation between the appellants and CPT. While CPT challenged the legality and validity
of the notification dated July 7, 2005 on diverse grounds, the present appellants
approached the High Court for issuance of mandamus to CPT to implement the notification
dated July 7, 2005 and not to engage contract labour in the matter of maintenance, laying
and linking, changing of railway tracks maintained by CPT.
        7. By his order dated May 15, 2007, Single Judge dismissed the writ petition filed by
CPT and held that there was no irregularity or illegality in the notification dated July 7,
2005. Insofar as the writ petition filed by the present appellants was concerned, its hearing
was deferred.
        8. CPT challenged the order dated May 15, 2007 passed by the Single Judge before
the Division Bench of the High Court in intra Court appeal. The Division Bench heard the
appeal preferred by CPT and also the writ petition preferred by the present appellants
together and vide order dated March 31, 2008 directed CPT to approach the Ministry of
Labour through Ministry of Shipping. This is what the Division Bench directed :
        “The Port Trust is thus directed to approach the Ministry of Labour through Ministry
        of Shipping. Both the Ministries should discuss the issue at the appropriate level
        and take a formal decision in the matter. The said two departments would be free
        to take a decision irrespective of the observations made by the learned Single Judge
        in the judgment and order impugned. Mr. Sengupta has drawn our attention to the
        latest decision in the case of City and Industrial Development Corporation,
        Maharashtra Ltd., & Ors. (supra) to show that the issue to be resolved by High Power
        Committee to be appointed by the Central Government. We feel that the issue
        should be left to the Central Government for formation of High Power Committee if
        they so desire. If the High Power Committee is formed regard may be had to the
        case of City and Industrial Development Corporation, Maharashtra Ltd., & Ors.
        (supra).
        So long a decision at the appropriate level is not taken in the matter status quo as
        of date should be maintained by the parties.
        Mr. Sengupta contends that RITES is now maintaining the railway track. Let them
        continue till the final decision comes from the appropriate level.”
       9. Section 5 of the Act provides for constitution of committees by the Central Board
or the State Board for such purpose as may be thought fit. It reads thus :
          “5. Power to constitute committees.—(1) The Central Board or the State Board,
                 as the case may be, may constitute such comm-ittees and for such purpose
                 or purposes as it may think fit.
          (2) The committee constituted under sub-section (1) shall meet at such time
                 and places and shall observe such rules of procedure in regard to the
                 transaction of business at its meetings as may be prescribed.
          (3) The members of a committee shall be paid such fees and allowances for
                 attending its meetings as may be prescribed :
        Provided that no fees shall be payable to a member who is an officer of
        Government or of any corporation established by any law for the time being in
        force.”
       10. The provision pertaining to prohibition of employment of contract labour is
contained in Section 10 of the Act which empowers the appropriate Government to prohibit
employment of contract labour in any process, operation or other work in any
establishment. Section 10 reads thus:
        “10. Prohibition of employment of contract labour.—(1) Notwith-standing
                 anything contained in this Act, the appropriate Government may, after
                 consultation with the Central Board or, as the case may be, a State Board,
                 prohibit, by notification in the Official Gazette, employment of contract
                 labour in any process, operation or other work in any establishment.
          (2) Before issuing any notification under sub-section (1) in relation to an
                 establishment, the appropriate Government shall have regard to the
                 conditions of work and benefits provided for the contract labour in that
                 establishment and other relevant factors, such as—
        (a)     whether the process, operation or other work is incidental to, or necessary
                for the industry, trade, business, manufacture or occupation that is carried
                on in the establishment;
         (b)    whether it is of perennial nature, that is to say, it is of sufficient duration
                having regard to the nature of industry, trade, business, manufacture or
                occupation carried on in that establishment;
         (c)    whether it is done ordinarily through regular workmen in that establishment
                or an establishment similar thereto;
         (d)    whether it is sufficient to employ considerable number of whole-time
                workmen.
        Explanation.—If a question arises whether any process or operation or other work is
        of perennial nature, the decision of the appropriate Government thereon shall be
        final.”
      11. As noticed above, the Central Board constituted a Committee under Section 5 of
the Act to go into the question of abolition of contract labour in the establishment of CPT.
The Committee examined the diverse aspects of the matter and made its
recommendations as follows :
                                     “RECOMMENDATIONS”
        “From the above elaboration of work, the job in question needs to be examined in
        the contract of provisions of Section 10(2) of the Contract Labour (R&A) Act, 1970.
          (1) Whether the work is incidental to or necessary for the industry of Calcutta
                Port Trust the Committee is of the opinion that works of CPT involved
                loading and in landing of Cargo from or on the vessels of also the stores of
                Cargo. The railway track in Calcutta Dock System has been laid to facilitate
                the movement of rail bound caused to and from CPT so the work is very
                much incidental to the main operation of CPT.
          (2) The question whether work is of the provisional nature and is of sufficient
                duration, the committee observes that if renewal/cancellation of Tracks and
                sleepers have been going on almost continuously may be in some or other
                part of the Railway tracks and contract workers are working for full 8 hours
                so job deemed to be a perennial nature.
          (3) The question whether it is also done by the regular workmen, it has already
                been explained the total 71 of regular employee are also involved on day to
                day track maintenance job which includes the repairing to tracks after
                derailment and in routine gauging lubrication of point and crossing, cleaning
                of check rail, Dusking etc. which are also done by the contract workers after
                the replacement, renewal of sleepers and tracks and also in laying or linking
                of new railway lines. The Committee also feels that it will be relevant to
                mention about the notification No. U-23013/21/98 LW dated 20th June,
                2000 issued by the Ministry of Labour, Government of India, by which the
                employment of contract labour has been prohibited on the job of regular
                track maintenance such as through packing casual renewal and
                maintenance work required for day to day maintenance in the
                establishment of Eastern Railway. In the contract above facts and
                observation, the committee is of opinion at work jobs of sleepers renewal of
                Railway tracks repairing/restoration laying and linking of Tracks in the
                establishment of Calcutta Port Trust seem to be of regular nature and
                attracts the provisions of Section 10(2) of the Contract Labour (Regulation
                   and Abolition) Act, 1970. Hence, the committee recommended for
                   prohibition of contract labour on the above mentioned job.”
        12. The matter was reconsidered by Central Board in the light of the order of Calcutta
High Court passed on July 22, 2004 and it recommended to the Central Government for
prohibition of employment of contract labour in the jobs of sleeper renewal of railway
tracks, repairing/restoration, laying and linking of tracks in the establishment of CPT. This
is what Advisory Board said in its recommendation :
         “......The Committee had recommended prohibition of employment of Contract
         Labour on the ground that the work seem to be of regular nature and since 1988
         contracts have been engaged for renewal/construction of tracks and sleepers in
         some or other part of the railways tracks belonging to KOPT. Secondly, the job
         performed by the regular employees were almost identical to that of job performed
         by contract workers and both type of maintenance job, i.e. day to day maintenance
         and periodical maintenance are required to be done on regular basis. The
         Committee has also observed that since February, 2000, miscellaneous work in
         connection with strengthening of KOPT railway track, as and when required,
         including supply of materials have been given on contract. This is at variance with
         the statement of KOPT that there is no contract in the said jobs since 1998. The
         management, on enquiry by the Board, categorically stated that no contract labour
         system exists now in the jobs under consideration and they would not be adversely
         affected even if the contract labour system is abolished. The management was also
         not able to satis-factorily convince the Board, on the query whether the renewal of
         track/sleepers would be done only once in 10-12 years at one go and not in parts
         on continuous basis. This gives rise to an inference that the jobs under
         consideration is of perennial type and are required to be done by regular
         employees. In view of the recommendations of the Committee and categorical
         statement of KOPT, and the fact that the requirements under Section 10(2) of the
         Act are satisfied, the Board recommends to the Government prohibition of
         employment of contract labour in the jobs of sleeper renewal of railways tracks,
         repairing/restoration, laying and linking of tracks in the establishment of KOPT,
         Kolkata.”
        13. It is in the light of the aforesaid backdrop that the Central Govern-ment issued
notification under Section 10(1) of the Act, 1970 prohibiting the employment of contract
labour in the works of sleeper renewal of railways tracks, repairing/restoration, laying and
linking of tracks in the establishment of CPT. The Single Judge did not find any infirmity or
illegality in the said notification. However, Division Bench without going into the merits of
the controversy, interfered with the order of the Single Judge by directing CPT to approach
the Ministry of Labour through Ministry of Shipping and both ministries were directed to
discuss the issue at the appropriate level and take a formal decision in the matter. We find
it difficult to countenance the approach of the Division Bench. The Division Bench gravely
erred in overlooking and ignoring the fact that the Central Government had already taken a
decision in exercise of its power under Section 10(1) after following the consultative
process provided in sub-section (2) of Section 10 and the relevant aspects mentioned
therein. There was no occasion much less justification to direct CPT to approach the
Ministry of Labour through Ministry of Shipping. The Division Bench ought to have
considered the matter on its own merit within the permissible limits of judicial review. If the
impugned order is allowed to stand, it would tantamount to setting at naught the whole
exercise undertaken by the Central Government under Section 10 of the Act without the
Division Bench having considered whether the notification dated July 7, 2005 suffers from
any infirmity and illegality. On this short ground alone, we are satisfied that matter needs to
be remitted back to the High Court for fresh consideration.
      14. Appeal is, accordingly, allowed to the aforesaid extent. M.A.T. No. 2363 of 2007
and F.M.A. No. 430 of 2008 are restored to the file of the High Court at Calcutta for fresh
hearing and disposal in accordance with the law. We request the High Court to dispose of
the aforesaid matters as expeditiously as may be possible. No orders as to costs.
                                                                      Appeal partly allowed.



                                 [2010 (1) T.N.C.J. 176 (SC)]
                                      SUPREME COURT
BEFORE:
              TARUN CHATTERJEE, G.S. SINGHVI AND R.M. LODHA, JJ.
                             BIBI ZAFIRA KHATOON AND OTHERS                        ...Appellants
                                              Versus
                          MOHAMMED HUSSAIN AND ANOTHER                         ...Respondents
               [Civil Appeal No. 2098 of 2000, decided on 17th September, 2009]
        Civil Procedure Code, 1908—Section 47—Execution—Eviction order became final—In
execution respondent filed objection that he was not tenant but was inducted on ground of
agreement for sale and appeal is pending in High Court—Execution Court and High Court
dismissed execution petition—Validity of—Held, order made by Court for recovery of
possession should be executed in a wholesome manner and landlord should not be
compelled to enter into further prolonged litigation for purpose of getting possession of suit
premises—Landlord not put respondent No.1 in possession hence, his continued occupation
to be treated as unauthorized and Section 12 clearly attracted—High Court and Executing
Court erred in dismissing execution application—Order set aside—Execution allowed.
(Paras 13 to 15)
                                             JUDGMENT
        G.S. SINGHVI, J.—This is an appeal for setting aside order dated 31.7.1998 passed by
the learned Single Judge of Patna High Court whereby he dismissed the civil revision
preferred by the appellants against dismissal of the applica-tion filed by them for execution
of the decree of eviction.
        2. Appellant No.1, Bibi Zafira Khatoon and her husband Syed Moha-mmed Jalaluddin
(since deceased) filed suit for eviction of respondent No.2, Mohammed Manzurool Haque
from a portion of their residential house situated at Motihari on the grounds of personal and
bona fide necessity and default in payment of rent. In the plaint, it was averred that
appellant No.1 and her husband were influenced by the claim of respondent No.2 that he
possessed spiritual powers and will bring peace in their family and, therefore, allowed him
to occupy a portion of the house at a monthly rent of Rs.190/-. It was further averred that
Syed Mohammed Jalaluddin was going to retire from service very soon and he was desirous
of living in his own house. The ground of default was elaborated by stating that respondent
No.2 did not pay rent for the period from January, 1981 to December, 1983. In the written
statement filed by him, respondent No.2 denied the very existence of the landlord-tenant
relationship between the parties. He claimed that he never occupied the house belonging to
appellant No.1 and her husband or any portion thereof as a tenant. While admitting that he
possessed spiritual power, respondent No.2 pleaded that appellant No.1 and her husband
sought his blessings and they were immensely benefited by his association. According to
respondent No.2, appellant No.1 and her husband felt that their house was haunted by evil
spirits who killed their two sons and requested him with folded hands to use his spiritual
power to drive away the evil spirits and, therefore, he agreed to occupy one room in the year
1978. Respondent No.2 further pleaded that Syed Mohammed Jalaluddin requested him to
find out some purchaser and after some talks, the sale of house was finalized with
respondent No.1, Mohammed Hussain. Thereafter, agreement (mahadanama) dated
9.1.1982 was executed between appellant No.1, her husband and respondent No.1 and the
latter was given possession of the house. Respondent No.2 also made a mention of the suit
filed by respondent No.1 for specific performance of the agreement for sale. Respondent
No.1, who had already filed Title Suit No.76/1983 (renumbered as 196/1987) for specific
performance of the agreement, got himself impleaded as intervenor defendant in the
eviction suit and filed written statement supporting the case set up by respondent No.2.
       3. The title suit filed by respondent No.1 and the eviction suit filed by appellant No.1
and her husband were clubbed because the subject matter of both the suits was common.
On the pleadings of the parties, the trial Court framed 12 issues, including the following:
          (3) Whether the alleged Mahadanama dated 9.1.1982 valid, legal and
                 admissible document and can be basis of any suit?
          (5) Whether plaintiff of T.S. No.76/1983 was put in possession of the suit
                 house by defendant Syed Md. Jalaluddin?
          (6) Whether the alleged Mahadanama is enforceable in law and the plaintiff is
                 entitled to a decree for specific performance of contract?
       4. After detailed analysis of the pleadings of the parties and the evidence produced
by them, the trial Court dismissed the suit for specific performance of the agreement for
sale and decreed the one filed for eviction of respondent No.2. The trial Court held that the
so-called agreement (mahadanama) dated 9.1.1982 is not a legally admissible document
and the same cannot be made basis for passing a decree for specific performance. The trial
Court further held that the plaintiff of Title Suit No.76/1983 was not put in possession of
the suit house by Syed Mohammed Jalaluddin. In the eviction suit, the trial Court returned
the finding that respondent No.2 was tenant in the suit premises and the same was
required by the landlords for their personal and bona fide need. Appeal preferred by
respondent No.2 against the decree of eviction was dismissed by the 4th Additional District
Judge, Motihari, who confirmed the finding recorded by the trial Court that need of the
landlords was bona fide. The appellate judgment became final because respondent No.2
did not challenge the same by filing second appeal.
       5. After dismissal of the appeal filed by respondent No.2 against the decree of
eviction, the appellants filed an application for execution thereof impleading the
respondents herein as parties. On notice, respondent No.1 filed objection petition under
Section 47 read with Section 151 of the Civil Procedure Code. He pleaded that decree
cannot be executed against him because the trial Court had ordered eviction of respondent
No.2 only and also because First Appeal No.33/1989 filed by him against the judgment
and decree of the trial Court in the suit for specific performance was pending before the
High Court.
       6. By an order dated 28th November, 1997, the Executing Court allowed the
objection petition and dismissed the execution application by observing that the decree of
eviction was passed only against respondent No.2 and not against the objector. The
Executing Court referred to the evidence produced by the parties and held that the
judgment-debtor left the room and the applicant is residing in the suit house along with his
family. Civil Revision No.395/1998 filed by the appellants was dismissed by the High Court
by observing that even though Section 12 of the Bihar Building (Lease, Rent and Eviction)
Control Act, 1982 (for short, “the Act”) has overriding effect qua the provisions of other
enactments, the same cannot be invoked against a person who is not a tenant within the
meaning of Section 2(h) of the Act. The High Court noted that as per respondent No.1, he
was living in the house in his own right, i.e., on the basis of the agreement for sale and that
the appeal filed by him against dismissal of the title suit was pending and held that during
pendency of the appeal filed against dismissal of the suit for specific performance of the
agreement for sale, respondent No.1 cannot be treated as a tenant of the suit premises.
       7. Shri Ranjan Mukherjee, learned counsel for the appellants pointed out that First
Appeal No. 33/1989 filed by respondent No.1 against the decree passed by the trial Court
in the title suit was dismissed by the High Court vide its judgment dated 18.5.2007 and
Special Leave Petition (C) No. 6471/2008 filed by him was dismissed by this Court on 12th
August, 2009. He then argued that in view of the non-obstante clause contained in Section
12 of the Act, the Executing Court was duty bound to order eviction of respondent No.1
because the title suit filed by him was dismissed and he was never inducted as a tenant in
the suit premises with the express written permission of the landlords.
       8. Shri H.L. Agarwal, learned senior counsel appearing for respondent No.1 submitted
that the trial Court and High Court rightly refused to order eviction of his client because the
decree was passed only against respondent No.2. Learned counsel further submitted that
even though in the suit for specific performance of agreement for sale filed by respondent
No.1, the trial Court recorded a finding that he was not put in possession by Syed
Mohammed Jalaluddin (husband of appellant No.1) and the said finding was confirmed by
the High Court, he cannot be evicted from the suit premises by invoking Section 12 of the
Act because he does not fall within the definition of the term “tenant”.
       9. We have thoughtfully considered the respective submissions and carefully
scrutinized the records. Undisputedly, the judgment and decree passed by the trial Court in
Title Suit No. 76/1983 have become final because the first appeal and special leave
petition filed by respondent No.1 have been dismissed by the High Court and this Court,
respectively. While dealing with issue No.5, which has been reproduced in the earlier part of
this order, the trial Court took cognizance of the pleadings and evidence produced by the
parties and held:
         “Mere execution of an agreement for sale does not confer title and possession
         without title cannot be treated as legal possession in the eye of law. The plaintiff
         has not established the permission of defendant No.1 to possess the suit land and,
         therefore, possession of the plaintiff cannot be maintained as permissive
         possession.”
       10. In the appeal preferred by respondent No.1, the High Court framed as many as
seven questions including the following:
         “Whether the defendants had ever handed over possession of the suit premises to
         the plaintiff as part performance of the contract.”
       11. The High Court answered the aforementioned question in negative by recording
the following observations:
         “26. The claim of the plaintiff is that he was put in possession of the suit
                 premises by defendant No.1 in part performance of the agreement for sale.
                 Although some witnesses of the plaintiff stated that they had seen him in
                 possession of the suit premises. But only P.W. 3 and P.W. 5 apart from P.W.
                 7 the plaintiff himself, stated that defendant No.1 handed over possession
                 of the suit premises to the plaintiff as part performance of the agreement
                 for sale. Whereas on the other hand several witnesses of the defendants
                 stated that the defendants had throughout been in possession of the suit
                 premises and the plaintiff never came in possession thereof but out of them
                 D.Ws. 3, 5 and 6, apart from D.W.9 defendant No.1, specifically stated that
                 the plaintiff was never put in possession of the suit premises by the
                 defendants as part performance of the agreement for sale.
         27.     So far the question of onus is concerned, it was squarely upon the plaintiff
                 to prove that he was put in possession of the suit premises by the
                 defendants as part performance of the agreement for sale. But he miserably
                 failed to support his claim by any valid evidence whatsoever. Even in the
                 alleged written agreement for sale produced by the plaintiff as Ext.4 as well
                 as in the receipt of Rs.17,000/- executed by defendant No.1 produced by
                 the plaintiff as Ext. 3 no statement is made that the plaintiff was ever put in
                 possession of the suit premises by the defendants either in part
                 performance of the agreement for sale or otherwise. Furthermore, after
                 proper evaluation of the evidence, both oral and documentary, adduced by
                 both the parties, the learned trial Court has rightly reflected the claim of the
                 plaintiff as he miserably failed to prove that               he was ever put in
                 possession of the suit premises by the defendants.”
       12. We shall now consider whether Section 12 of the Act should have been invoked
by the Executing Court for ordering eviction of respondent No.1 from the suit premises. That
section reads as under:
        “12. Binding nature of the order of the Court on all persons in occupation of the
                 building.—Notwithstanding anything contained in any other law, where the
                 interest of tenant, in any premises is determined for any reason,
                 whatsoever, and any order is made by the Court under this Act, for the
                 recovery of possession of such premises, the order shall be binding on all
                 persons who may be in occupation of the premises and vacant possession
                 thereof shall be given to the landlord by evicting all such persons therefrom:
                 Provided that nothing in this section shall apply to any person who has an
                 independent title to such a premises or to tenant who has been inducted
                 with the express written permission of the landlord himself personally.”
       13. By enacting the above reproduced provision, the Legislature has ensured that an
order made by the Court for recovery of possession should be executed in a wholesome
manner and the landlord should not be compelled to enter into further prolonged litigation
for the purpose of getting possession of the suit premises simply because the tenant may
have, without the knowledge or permission of the landlord, inducted some other person in
the tenanted premises. This is the reason why Section 12 begins with a non-obstante clause
and lays that where the interest of tenant is determined and an order is made by the Court
for recovery of possession of the premises, such order shall be binding on all persons, who
may be in occupation of the premises, and vacant possession thereof shall be given to the
landlord by evicting all such persons therefrom. The use of the words “all persons” in the
substantive part of Section 12 signifies the legislative intendment that the order passed by
the Court for the recovery of possession of the tenanted premises should bind everyone
who may be occupying the premises irrespective of his status. To put it differently, Section
12 seeks to ensure delivery of vacant possession of the premises to the landlord by evicting
not only the tenant but any other person who may be occupying the premises. The proviso
to Section 12 protects the person who has independent title to such premises or the tenant
who has been inducted with the express written permission of the landlord himself
personally.
       14. If the case in hand is examined in the light of the plain language of Section 12
and keeping in view the fact that while deciding the suit for specific performance filed by
respondent No.1, the trial Court recorded an unequivocal finding that Syed Mohammed
Jalaluddin had not put respondent No.1 in possession of the suit premises and the said
finding has been confirmed by the High Court, his continued occupation thereof has to be
treated as unauthorized and Section 12 of the Act is clearly attracted in his case.
Respondent No.1 cannot take benefit of first part of the proviso to Section 12 because the
suit for specific performance of the agreement for sale filed by him was dismissed by the
trial Court and challenge to the judgment and decree of the trial Court has been negatived
by the High Court and this Court. Respondent No.1 cannot take advantage of second part of
the proviso to Section 12 because it is neither his pleaded case nor any evidence was
produced before the trial Court to show that he was inducted as a tenant in the suit
premises with express permission of the landlords, i.e., appellant No.1 and her husband.
       15. In view of the above discussion, we hold that the Executing Court committed an
error by refusing to execute the decree of eviction against respondent No.1 and the view
taken by the High Court on the applicability of Section 12 of the Act qua respondent No.1 is
clearly flawed and untenable. As a corollary to this conclusion, the appeal is allowed, the
impugned order is set aside and the execution application filed by the appellants is allowed.
Respondent No.1 and his family members who are occupying the suit premises are allowed
three months‟ time to vacate the same and hand over physical possession thereof to the
appellants herein. This will be subject to the condition of filing of usual undertaking within
four weeks from today.
                                                                              Appeal allowed.

                                 [2010 (1) T.N.C.J. 182 (SC)]
                                      SUPREME COURT
BEFORE:
              MARKANDEY KATJU AND ASOK KUMAR GANGULY, JJ.
                              BAJAJ AUTO LIMITED                                    ...Appellant
                                              Versus
                           TVS MOTOR COMPANY LIMITED                            ...Respondent
 [Civil Appeal No. 6309 of 2009 (Arising out of SLP (C) No. 13933 of 2009), decided on 16th
                                       September, 2009 ]
        Indian Patents Act, 1973—Infringement of patent—Grant of injunction by trial Court—
Validity of—Held, in matters of patents, trademarks and copyrights years take to decide and
litigation is mainly fought between parties about temporary injunction which is very
unsatisfactory—Still respondent defendant not filed written statement—Hence, respondent
directed to file written statement and suit will be finally disposed of.
                                                                           (Paras 11 and 14)
                                            JUDGMENT
        MARKANDEY KATJU, J.—Leave granted.
        2. This Appeal has been filed against the impugned order of the Division Bench of the
High Court of Judicature at Madras dated 18.5.2009 in O.S.A. No. 92 of 2008.
        3. It appears that a suit bearing No. C.S. No.1111 of 2007 had been filed by the
appellant herein before the learned Single Judge of the Madras High Court alleging
infringement of its patent No.195904 under the Indian Patents Act, 1973 (for short „the
Act‟).
        4. The learned Single Judge granted an interim injunction on 16th February, 2008.
        5. Challenging the said interim order dated 16th February, 2008, an appeal was filed
by the respondent-defendant before the Division Bench of the Madras High Court which
allowed the appeal by the impugned order dated 18.5.2009.
        6. Hence, this appeal before us by special leave.
       7. It is evident that the suit is still pending before the learned Single Judge of the
Madras High Court. We are unhappy that the matter has been pending in the High Court at
the interlocutory stage for such a long time as the suit was filed in December, 2007 and yet
even written statement has not been filed.
       8. Recently, we have held in Special Leave Petition (C) No.21594 of 2009 decided on
7th September, 2009 in the case of M/s. Shree Vardhman Rice & Gen Mills v. M/s. Amar
Singh Chawalwala as follows:
         “...Without going into the merits of the controversy, we are of the opinion that the
         matters relating to trademarks, copyrights and patents should be finally decided
         very expeditiously by the trial Court instead of merely granting or refusing to grant
         injunction. Experience shows that in the matters of trademarks, copyrights and
         patents, litigation is mainly fought between the parties about the temporary
         injunction and that goes on for years and years and the result is that the suit is
         hardly decided finally. This is not proper.
         Proviso (a) to Order 17, Rule 1(2), C.P.C. states that when the hearing of the suit has
         commenced, it shall be continued from day-to-day until all the witnesses in
         attendance have been examined, unless the Court finds that, for exceptional
         reasons to be recorded by it the adjournment of the hearing beyond the following
         day is necessary. The Court should also observe clauses (b) to (e) of the said proviso.
         In our opinion, in matters relating to trademarks, copyright and patents the proviso
         to Order 17, Rule 1(2), C.P.C. should be strictly complied with by all the Courts, and
         the hearing of the suit in such matters should proceed on day to day basis and the
         final judgment should be given normally within four months from the date of the
         filing of the suit.”
       9. As has been observed by us in the aforesaid case, experience has shown that in
our country, suits relating to the matters of patents, trademarks and copyrights are pending
for years and years and litigation is mainly fought between the parties about the temporary
injunction. This is a very unsatis-factory state of affairs, and hence we had passed the above
quoted order in the above-mentioned case to serve the ends of justice. We direct that the
directions in the aforesaid order be carried out by all Courts and Tribunals in this country
punctually and faithfully.
       10. In the present case, although arguments were advanced at some length by the
learned counsel for both the parties, we are of the opinion that instead of deciding the case
at the interlocutory stage, the suit itself should be disposed of finally at a very early date.
       11. Hence, without going into the merits of the controversy, we direct the respondent-
defendant to file written statement in the suit, if not already filed, on or before the last date
for closing of the Madras High Court for Dussehra holidays. We would request the learned
Single Judge who is trying the suit to commence the hearing of the suit on the re-opening of
the Madras High Court after Dussehra holidays and then carry it on a day to day basis. No
adjournment whatsoever ordinarily will be granted and the suit shall be finally disposed of
on or before 30th November, 2009.
       12. The interim orders of this Court dated 8th June, 2009 and 31st August, 2009 are
vacated and substituted by the following directions.
       13. The respondent shall be entitled to sell its product but it shall maintain an
accurate records/accounts of its all India and export sales. We are appointing a Receiver to
whom the records of such sale shall be furnished every fortnight by the respondent and the
same shall be signed and authenticated by a responsible officer of the respondent. A copy
of the same shall be given to the appellant also. We are requesting the Hon‟ble the Chief
Justice of the Madras High Court to forthwith nominate a Receiver in the matter to whom
the sale records/accounts will be submitted by the respondent fortnightly, and the Receiver
will verify the said sale records/accounts and thereafter submit his Report to the learned
Bench of Madras High Court where the suit is pending. A copy of the same will be sent to
the parties also. This direction will continue till the pendency of the suit. The remuneration
of the receiver will be fixed by the Hon‟ble Chief Justice.
       14. We make it clear that we are not making any observations on the merits of the
case. The learned Single Judge shall decide the suit without being influenced by this order
or by any observations made in the impugned order of the Division Bench or in the order of
the learned Single Judge granting temporary injunction in favour of the appellant herein.
       15. The Secretary General of this Court is directed to send a copy of this judgment
forthwith to the Registrar General of the Madras High Court who shall place the same
before Hon‟ble the Chief Justice for obtaining the appropriate directions.
       16. Copy of this order be given to the parties today itself.
       17. The Appeal is disposed of accordingly. No costs.
       18. Leave granted.
       19. In view of our judgment in Civil Appeal arising from S.L.P.(C) No.13933 of 2009,
this appeal is also disposed of on the same terms. No costs.
                                                                            Appeal disposed of.



                                 [2010 (1) T.N.C.J. 184 (SC)]
                                      SUPREME COURT
BEFORE:
             ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.
                                   BABU RAM AND ANOTHER                            ...Appellants
                                            Versus
                         STATE OF HARYANA AND ANOTHER                          ...Respondents
  [Civil Appeal No. 6864 of 2009 (Arising out of SLP (C) No. 14302 of 2008), decided on 7 th
                                       October, 2009]
        Land Acquisition Act, 1894—Sections 4, 5-A, 6 and 17—Acquisition of land for
construction of a Sewage Treatment Plant—Filing of objection under Section 5-A denied to
land owners—Since site is still lying unutilized appellants should get an opportunity to file
their objections under Section 5-A of the Act—Respondents directed to take consequential
steps after disposal of same—Appellants at liberty to file objections under Section 5-A of
the Act.                                                 (Paras 2, 24 and 25)
        Case law.—2004 (8) SCC 14; 2004 (8) SCC 453; 1980 (2) SCC 471; 1998 (6) SCC 1;
2002 (2) SCC 48—referred.
                                       Important point
        Before resorting to Section 17(4) of the Land Acquisition Act authorities themselves
had to satisfy that urgency was of such nature which could brook no delay whatsoever.
                                           JUDGMENT
        ALTAMAS KABIR, J.—Leave granted.
       2. The appellants herein are residents of Narwana, District Jind, in the State of
Haryana and claim to be the owners of land measuring 34 Kanals 2 Marlas situated at Jind
Patiala Road near the Railway Crossing, Narwana, adjoining the New Grain Market at
Narwana. Subsequent to the acquisition of certain lands in the said area in 1995, the State
of Haryana issued another Notification dated 23rd November, 2005, bearing No.12/8/05-
PH 1, under Section 4 read with Section 17(2)(c) of the Land Acquisition Act, 1894
(hereinafter referred to as the “L.A. Act”), for construction of a Sewage Treatment Plant. In
the said Notification, it was indicated that the land was required on an urgent basis within
the meaning of sub-section (4) of Section 17 of the L.A. Act, thereby excluding the
application of Section 5-A of the said Act. According to appellants while invoking the
emergent provisions under Section 17 of the aforesaid Act, no reason was indicated to
exclude the operation of Section 5-A of the Act. The said Notification under Section 4 was
followed by another Notification dated 2nd January, 2006 under Section 6 of the L.A. Act. In
the said Notification it also was made clear that the Land Acquisition Collector-cum-District
Revenue Officer, Jind, Haryana proposed to take possession of the land in question as the
land was to be acquired urgently.
       3. Aggrieved by the decision of the State Government to acquire the land for
construction of the Sewage Treatment Plant, the Mitaso Educational Society Narwana, filed
a suit against the State of Haryana to restrain the defendant therein, including the State of
Haryana from constructing the Sewage Treatment Plant in front of the school and on 15th
February, 2006, an interim order was passed in the suit restraining the defendants from
constructing the said Plant as the same was likely to be a health-hazard for the inhabitants
of the locality. In yet another civil suit filed by one Jagroop against the State of Haryana, the
Additional Civil Judge, Senior Division, Narwana, restrained the defendants by its order
dated 12th April, 2006 from constructing the Sewage Treatment Plant.
       4. Having been denied the opportunity of filing an objection under Section 5-A of the
L.A. Act, the appellants also filed a writ petition in the Punjab and Haryana High Court
challenging the two Notifications under Sections 4 and 6 of the L.A. Act on several grounds.
One of the grounds taken was that the lands in question could not be used for the
installation of a Sewage Treatment Plant owing to its close proximity to the residential
colony, the New Grain Market and a school in the adjoining plots. Furthermore, an earlier
Notification issued under Sections 4 and 6 of the L.A. Act in the year 1995 had also been
challenged in Civil Writ Petition No.1222 of 1997 before the High Court, wherein an order of
status quo was passed on 28th January, 1997. It has been submitted that the said writ
petition is still pending disposal in the said High Court. In the subsequent writ petition out of
which this appeal arises, the appellants herein, inter alia, prayed for quashing of the two
Notifications dated 23rd November, 2005 and 2nd January, 2006 issued under Section 4
read with Clause (c) of sub-section (2) of Section 17 and Section 6 of the L.A. Act, 1894 on
the ground that the same were arbitrary and contrary to the provisions of the Act. A prayer
was also made for a writ in the nature of mandamus to direct the respondents in the writ
petition not to dispossess the appellants herein from the land in question.
       5. The writ petition was taken up for hearing on 14th February, 2008. Negating the
contention of the appellants/writ petitioners that they had been wrongly deprived of their
right to file an objection to the proposed acquisition of their lands under Section 5-A of the
L.A. Act, the Writ Court came to the conclusion that the provisions of Section 4 read with
Section 17 had been religiously observed and followed by the Notification under Section 6,
pursuant to which Award was announced on 23rd May, 2006.
       6. While dismissing the writ petition, the High Court sought to distinguish the decision
of this Court in Union of India v. Mukesh Hans, (2004) 8 SCC 14, which had been cited on
behalf of the writ petitioners/appellants herein in support of their contention that the right
given to a land owner or person interested in the land was not an empty formality but a
substantive right which could not be taken away, except for good and valid reason within
the limitations prescribed under Section 17(4) of the L.A. Act, 1894. In the said decision,
this Court had pointed out that mere existence of an urgency or unforeseen emergency was
not sufficient in itself to dispense with the provisions of Section 5-A of the aforesaid Act.
The said right could be dispensed with only after the appropriate Government forms an
opinion that along with the existence of urgency under Section 17(1) or unforeseen
emergency under Section 17(2), there was also a need to dispense with the provisions of
Section 5-A.
       7. The Special Leave Petition (now Civil Appeal) has been filed by the appellants
questioning the dismissal of their writ petition.
       8. Appearing in support of the appeal, learned Senior Advocate Mr. Pradip Ghosh,
submitted that the present acquisition proceeding was the second phase of acquisition of
land purportedly for the purpose of setting up a Sewage Treatment Plant (STP). He
submitted that similar Notifications under Sections 4 and 6 of the L.A. Act, 1894 had been
published in 1995-96 for acquisition of land, measuring 42 acres, 2 kanals, 8.75 marlas,
belonging to the appellants and adjoining the lands now sought to be acquired under the
Notification dated 23rd November, 2005 issued under Section 4 read with Sections 17(2)(c)
and 17(4) of the aforesaid Act, for the selfsame purpose.
       9. As will be evident from the aforesaid Notification, the provisions of Section 5-A
were dispensed with. Thereafter, on 2nd January, 2006, a Notification under Section 6 of
the Act was issued indicating the intention of the Respondent No.2 to take possession of
the land immediately. The said Notification was followed by a Notification under Section 9
dated 5th May, 2006 mentioning that the Award of the acquisition would be pronounced on
23rd May, 2006. Mr. Ghosh submitted that in view of the said Notification under Section 9 of
the above Act, the appellants were advised to file a suit before the Civil Judge (Senior
Division), Narwana, to restrain the respondents from constructing a STP as the same would
be a health hazard for the inhabitants of the locality. Such suit was filed on 15th February,
2006. Subsequently, another suit for the same reliefs was filed by one Jagroop on 12th
April, 2006, before the learned Additional District Judge (Senior Division), Narwana, who
was pleased to restrain the respondents from constructing the STP. In addition to the
above, the appellants filed Writ Petition CWP No.8332 of 2006 before the Punjab and
Haryana High Court, praying for quashing of the Notification dated 23 rd November, 2005
and for restraining the respondents from dispossessing the writ petitioners. It is out of the
final disposal of the said writ petition that the present appeal has arisen.
       10. Initially, the High Court directed the parties to maintain status quo with regard to
the writ petitioners‟ lands. Subsequently, as indicated hereinabove, the writ petition was
dismissed on 14th April, 2008.
       11. Mr. Ghosh submitted that no urgency of such compelling nature had been
disclosed by the respondents that warranted the invoking of Section 17(4) of the L.A. Act,
1894. On the other hand, by denying the appellants the opportunity of filing objections
under Section 5-A of the L.A. Act, 1894, the respondents had tried to play down the fact
that the STP was being constructed next to a school and grain market which would prove to
be a health-hazard, not only for the students of the school, but for the inhabitants of the
area in general.
       12. In addition, Mr. Ghosh also submitted that in the plan which had been prepared
by the Town Planning Department, it had been shown that the lands to be acquired were to
be used for residential and commercial purposes and another plot had been earmarked for
the Sewage Treatment Plant. The change of user and the setting up of a STP would severely
prejudice the local inhabitants.
       13. In support of his submissions that certain parameters have to be followed by the
acquiring authorities for the purpose of invoking the provisions of Section 17(4) of the L.A.
Act, Mr. Ghosh firstly referred to the decision of this Court in Union of India v. Krishan Lal
Arneja, (2004) 8 SCC 453, wherein while dealing with a similar situation, this Court
observed as follows :
         “16. Section 17 confers extraordinary powers on the authorities under which it
                can dispense with the normal procedure laid down under Section 5-A of the
                Act in exceptional case of urgency. Such powers cannot be lightly resorted to
                except in case of real urgency enabling the Government to take immediate
                possession of the land proposed to be acquired for public purpose. A public
                purpose, however laudable it may be, by itself is not sufficient to take aid of
                Section 17 to use this extraordinary power as use of such power deprives a
                landowner of his right in relation to immovable property to file objections for
                the proposed acquisition and it also dispenses with the inquiry under
                Section 5-A of the Act. The authority must have subjective satisfaction of the
                need for invoking urgency clause under Section 17 keeping in mind the
                nature of the public purpose, real urgency that the situation demands and
                the time factor i.e., whether taking possession of the property can wait for a
                minimum period within which the objections could be received from the
                landowners and the inquiry under Section 5-A of the Act could be
                completed. In other words, if power under Section 17 is not exercised, the
                very purpose for which the land is being acquired urgently would be
                frustrated or defeated. Normally urgency to acquire a land for public
                purpose does not arise suddenly or overnight but sometimes such urgency
                may arise unexpectedly, exceptionally or extraordinarily depending on
                situations such as due to earthquake, flood or some specific time-bound
                project where the delay is likely to render the purpose nugatory or
                infructuous. A citizen‟s property can be acquired in accor-dance with law but
                in the absence of real and genuine urgency, it may not be appropriate to
                deprive an aggrieved party of a fair and just opportunity of putting forth its
                objections for due consideration of the acquiring authority. While applying
                the urgency clause, the State should indeed act with due care and
                responsibility. Invoking urgency clause cannot be a substitute or support for
                the laxity, lethargy or lack of care on the part of the State administration.”
       Referring to two other decisions of this Court in (1) State of Punjab v. Gurdial Singh,
(1980) 2 SCC 471; and (2) Om Prakash v. State of U.P., (1998) 6 SCC 1, this Court also
observed that it was fundamental that compulsory taking of a man‟s property is a serious
matter and the smaller the man the more serious the matter. In fact, in Om Prakash‟s case
(supra), this Court went one step further in observing that according to the decision in
Gurdial Singh‟s case (supra), enquiry under Section 5-A is not merely statutory, but also has
a flavour of fundamental rights under Articles 14 and 19 of the Constitution.
       14. Various other decisions in the same vein were cited by Mr. Ghosh which only go to
reiterate the propositions laid down in the above-mentioned cases.
       15. It was lastly submitted by Mr. Ghosh that in the written statement filed on behalf
of the respondents herein before the Punjab and Haryana High Court in the Writ Petition
filed by the appellants, nothing has been disclosed with regard to urgency which prompted
the said respondents to take recourse to the provisions of Section 17(4) of the L.A. Act,
1894. On the other hand, in paragraph 6 of the said Written Statement it has been sought
to be mentioned that if the appellants herein had any grievance with regard to the
impugned notification under Section 4, it was the duty of the appellants to have filed
objections. It was further stated that having failed to file objections, the appellants had
waived their right since the respondents had never denied the appellants their right to file
objections. Mr. Ghosh submitted that such a stand clearly reveals the non-application of
mind by the concerned authorities since invocation of Section 17(4) of the L.A. Act
prevented the appellants from filing objections. Mr. Ghosh submitted that the respondents
ought not to have dealt with the matter in such a perfunctory manner since the appellants
had no other forum to vindicate their grievances relating to the compulsory acquisition of
their lands.
       16. Appearing for the State of Haryana, Mr. Manoj Swarup, learned Advocate, denied
the allegations of mala fides made on behalf of the appellants and contended that it was,
in fact, the appellants who were guilty of having suppressed the extremely relevant fact that
they had filed a Civil Suit in respect of the self-same cause of action in the Court of the
Additional Civil Judge (Senior Division), Narwana, in which they had prayed for a decree of
permanent injunction to restrain the respondents herein from constructing the STP in any
direction near the school run by the appellants in the name and style of „Chaudhary Devi Lal
Memorial Public School, Uklana Road, Narwana. Mr. Swarup submitted that although the
Written Statement filed on behalf of the Respondent Nos.1 and 2 had been amended, the
same was not placed on the record and only the unamended Written Statement was filed.
Mr. Swarup then contented that, in fact, the Written Statement had never been amended,
but an Additional Written Statement had been filed on account of amendment effected to
the writ petition. From paragraph 6 of the Additional Written Statement, Mr. Swarup
pointed out that not one but three STPs were planned at different locations at Narwana for
which three different sites had been acquired. The STP forming the subject matter of the
present appeal is, in effect, only one of them. The decision to set up such a STP was the
result of accumulation of sewage water which had the ultimate effect of polluting the
ground water. It was submitted that the site in question for the construction of the STP had
been selected after a thorough survey of the area in which the land in question was found
to be most suitable. Mr. Swarup urged that the decision to set up STPs in Narwana was in
response to a public demand for the laying down of a Sewage Treatment Plant since the
local inhabitants were facing great difficulty in dealing with the accumulation of sewage
water. It was submitted that the interests of a few as represented by the appellants, would
have to give way to the larger public interest to benefit the entire population of the area.
       17. It was also submitted by Mr. Swarup that the suit in question had been withdrawn
after objections had been taken by the respondents, but no liberty had been asked for or
taken for commencing a fresh proceeding on the same cause of action. Mr. Swarup also
questioned the locus standi of the school to file a suit in respect of the land belonging to
the appellants.
       18. In conclusion, Mr. Swarup referred to the decision of this Court in Municipal
Council, Ahmednagar v. Shah Hyder Beig and Ors., (2000) 2 SCC 48, which dealt with the
question of delay in challenging the notice issued under the Land Acquisition Act, 1894. In
the said decision, this Court held that long after the Award had been passed in the L.A.
proceedings and compensation had been made over to the Requiring Authority, a writ
petition challenging the notices issued under Sections 4 and 6 of the L.A. Act was not
maintainable. Mr. Swarup urged that in the facts and circumstances of the case, no
interference was called for with the decision of the High Court.
       19. From the submissions advanced on behalf of the parties and the materials on
record, two points emerge for decision in the instant appeal. The first point to be considered
is whether the provisions of Section 17(4) of the L.A. Act, 1894, had been validly invoked by
the respondents for the purpose of acquiring the lands in question for the Sewage
Treatment Plant. The other point which is linked with the first point is whether the choice of
site for setting up the STP would prove to be hazardous for the inhabitants of Narwana.
         20. If an opportunity had been given to file objections to the proposed acquisition,
the second question would have been resolved while deciding the objections under Section
5-A of the L.A. Act, 1894. Unfortunately, the provisions of Section 17(4) were invoked in
relation to a project which could have serious consequences to the health of the general
public of the area. Although, it has been urged on behalf of the respondents that the
decision to set up the three Sewage Treatment Plants at Narwana was in response to a
public demand to install sewage drains and the present site had been chosen to be the
most suitable for a STP, it has not been denied that the proposed STP is to be situated in
the vicinity of a school and grain market which are both hubs of community activities.
         21. In the present case, we are not concerned with technicalities but the likelihood of
a health-hazard to the inhabitants of the area if the STP was set up in the acquired site. The
stand taken by the respondent that the appellants could have filed objections to the
proposed acquisition is difficult to appreciate since the right to file such objections had, in
fact, been taken away by invoking the provisions of Section 17(4) of the L.A. Act. Such a
stand taken on behalf of the respondent authorities only serve to strengthen the case of the
appellants that an opportunity should have been given to them to file objections to the
proposed acquisition. As indicated hereinabove in the various cases cited by Mr. Pradip
Ghosh and, in particular, the decision in Krishan Lal Arneja‟s case (supra), in which
reference has been made to the observations made by this Court in Om Prakash‟s case
(supra), it has been emphasized that a right under Section 5-A is not merely statutory but
also has the flavour of fundamental rights under Articles 14 and 19 of the Constitution.
Such observations had been made in reference to an observation made in the earlier
decision in Gurdial Singh‟s case (supra) and keeping in mind the fact that right to property
was no longer a fundamental right, an observation was made that even if the right to
property was no longer a fundamental right, the observations relating to Article 14 would
continue to apply in full force with regard to Section 5-A of the L.A. Act.
         22. The observations made both in Gurdial Singh‟s case (supra) and in Om Prakash‟s
case (supra) assign a great deal of importance to the right of a citizen to file objections
under Section 5-A of the L.A. Act when his lands are being taken over under the provisions
of the said Act. That in the said decisions, such right was elevated to the status of a
fundamental right, is in itself sufficient to indicate that great care had to be taken by the
authorities before resorting to Section 17(4) of the L.A. Act and that they had to satisfy
themselves that there was an urgency of such nature as indicated in Section 17(2) of the
Act, which could brook no delay whatsoever.
         23. Since Section 5-A of the L.A. Act had been dispensed with, the stage under
Section 9 was arrived at within six months from the date of the notice issued under
Sections 4 and 17(2)(c) of the L.A. Act. While such notice was issued on 23 rd November,
2005, the Award under Section 11 was made on 23rd May, 2006. During this period, the
appellants filed a suit, and, thereafter, withdrew the same and filed a writ petition in an
attempt to protect their constitutional right to the property. It cannot, therefore, be said that
there was either any negligence or lapse or delay on the part of the appellants.
         24. The only other aspect of the matter which requires consideration is whether the
lands in question have already been utilized for the Sewage Treatment Plant. From the
averments made and photographs which were brought to our notice, it appears that the site
is still lying unutilized. In such circumstances, we consider it only proper that the appellants
should get an opportunity to file their objections to the proposed acquisition under Section
5-A of the L.A. Act and the respondents would be at liberty to take con-sequential steps
after disposal of the same.
       25. We, accordingly, dispose of the appeal by directing that not-withstanding the
invocation of Section 17(2)(c) of the L.A. Act in its application to the States of Punjab and
Haryana, the appellants will be at liberty to file objections under Section 5-A of the L.A. Act
within a month from the date before the concerned authority, who will, thereafter, dispose
of the same upon giving the objectors, if any, an opportunity of hearing and placing their
respective cases.
       26. The learned Advocate for the appellants is directed to communicate this order to
the L.A. Collector-cum-District Revenue Officer, Jind, Haryana, within a week from date.
       27. There will be no order as to costs.
                                                                           Appeal disposed of.



                              [2010 (1) T.N.C.J. 192 (Mad) (MB)]
                                     MADRAS HIGH COURT
                                      (MADURAI BENCH)
BEFORE:
           T.S. SIVAGNANAM, J.
                          P. ANANTHI                                               ...Petitioner
                                            Versus
                 UNION OF INDIA AND OTHERS                                        ...Respondents
  [W.P. (MD) No. 12239 of 2008 and M.P. (MD) No. 1 of 2009, decided on 17 September,
                                                                                 th

                                              2009]
       Educational loan—Denial of—Ground for denial was that institute was private—
Legality of—Held, directives issued by Reserve Bank of India are binding by banks—Further
institution where petitioner want to take admission is a recognized institution and courses
approved by statutory body—Hence, bank ought to have processed application—Ordered
accordingly.                                   (Paras 23 to 27, 31, 34 and 35)
       Case law.—2008 (1) CLT 849; AIR 2009 Mad 81; 2002 (1) SCC 367—referred.
       Counsel.—Mr. T. Lajapthi Roy, for the petitioner; Mr. R. Giridharan, for the respondents
2 and 3; No appearance, for the respondent 1.
                                            JUDGMENT
       T.S. SIVAGNANAM, J.—The prayer in the writ petition is to quash an order, dated
27.12.2007, passed by the third respondent and for a consequential direction, to direct the
third respondent to provide educational loan to the petitioner, to enable her to continue her
studies.
       2. The petitioner‟s application for educational loan for the purpose of pursuing her
studies in the Annai Teacher Training Institute, Kumbakonam, came to be rejected by the
impugned order. The reason assigned in the impugned order is that as per the Central
Office instruction, vide reference dated 27.9.2007 and as per the Reserve Bank of India
Model Education Loan Scheme, teacher training offered by Private Institutes are not
entertained by the Bank for the time being. Therefore, the petitioner was informed by the
Bank that they are unable to fulfill her request and regretted for the inconvenience.
       3. Mr. T. Lajapthi Roy, the learned counsel appearing for the petitioner would submit
that the petitioner is a second year student, undergoing the Diploma course in Teachers
Education in a recognized Institution. The petitioner belongs to a scheduled caste
community and hails from a very economical weak background and the petitioner‟s parents
are unable to meet her educational expenses and therefore, she has no option except to
approach the Bank for extending a loan.
       4. It is further submitted by the learned counsel that the petitioner approached the
management of the institute and also received the bona fide certificate and a letter stating
that a sum of Rs. 1,20,000/- is required to cover the entire expenses and complete the
course. The petitioner had submitted the application during the academic year 2007-2008,
but the same was rejected by the impugned order. The petitioner has also made
representation to the District Collector, Thanjavur, on 31.12.2007, on the Grievance Day
and has also submitted representation to the Secretary, Ministry of Finance, Government of
India.
       5. It is further stated that policy of the Nationalised Bank is to provide loan to the
deserving students having economic necessities and that the grounds for rejection has to
effect of reducing the policy of the Government of India as a mockery.
       6. The learned counsel would further submit that the Nationalised Banks functioning
on State funds have obligation to forward its citizens to aid the education and any refusal to
provide loan would amount to denial of their right to pursue higher education.
       7. It is further submitted that the petitioner had a legitimate expectation that her
representation, dated 14.12.2007, would be considered and especially when the petitioner
belongs to scheduled caste community and a female student living below the poverty line.
The inaction on the part of the respondent bank amounts to violation of the fundamental
rights guaranteed under Article 14 of the Constitution of India and failure to extend the
educational loan, would amount to failure of fulfillment of the obligations on the part of the
State as enshrined under Article 41 of the Constitution of India.
       8. The learned counsel placed reliance on the decision of this Court in Minor D. Iniyan
Gowtham v. The Union of India and others reported in 2008 (1) CLT 849, and submitted that
the loans have to be given to encourage education among students.
       9. Mr. R. Giridharan, the learned counsel appearing for the respondents 2 and 3
would submit that on receipt of the petitioner‟s application, the second respondent had
sent a communication, dated 22.12.2007, to the third respondent, by referring to the
Central Office Circular, dated 27.9.2009 and stated that as per the Reserve Bank of India
guidelines, the loan scheme need not be extended to Teacher Training offered by Private
Institutions. On receipt of the said communication, the impugned order was sent to the
petitioner.
       10. It is further stated by the learned counsel for the respondent that the Bank is
always ready to help every citizen of India, within the frame work and guidelines of the
Reserve Bank of India. But in the case of the petitioner, she has claimed a sum of Rs.
1,20,000/- as educational loan, for which, she is not entitled to as per the norms of Reserve
Bank of India and as per the conditions in G.O.Ms. No. 107, Education Department, dated
17.7.2002.
       11. The learned counsel for the respondent bank would place reliance upon the
decision of this Court in Deen Dayal Medical and Educational Trust v. Housing and Urban
Development Corporation Ltd., reported in AIR 2009 Mad 81, and stated that all
transactions of the Bank are not liable for judicial scrutiny and the impugned order cannot
the interfered with at this stage. It is further submitted that there is no statutory violation or
breach of any law by the Bank and therefore, the writ petition is liable to be dismissed.
       12. The leaned counsel for the respondent bank took me through the typed set of
papers filed by the respondent, wherein, the copy of the Government Order in G.O.Ms.No.
107, dated 17.7.2002, has been filed, the copy of the application made by the petitioner
along with the fee particulars given by the Institution and the communication received from
the Chief Manager, dated 22.12.2007, referring to the Central Office proceedings dated
27.9.2007.
        13. The learned counsel for the respondent also placed reliance on the
communication, 27.9.2007, sent by the Deputy General Manager, Indian Overseas Bank,
stating that in principle, only courses conducted by Colleges, Universities approved by
UGC/Government etc. as provided in the Model Educational Loan Scheme should be
considered for loan assistance. Therefore, training courses like Teachers Training Courses
offered by Private Institutes need not be considered under the Model Educational Loan
Scheme. However, in respect of other courses offered by National Institute and other
Private Institutions the individual Bank may appraise the courses taking into account the
future prospects/recognition by user institutions. On the above grounds, the learned
counsel prayed for the dismissal of the writ petition.
        14. Heard Mr. T. Lajapthi Roy, learned counsel appearing for the petitioner and Mr. R.
Giridharan, the learned counsel appearing for the respondents 2 and 3.
        15. I have carefully considered the rival submissions on either side and also perused
the materials available on records.
        16. The question which has to come up for consideration in the present writ petition
is as to whether the petitioner is entitled to request the respondent Bank to consider her
application for grant of educational loan to enable her to complete her Teacher Training
course. The respondent Bank does not deny the fact that the Banks are bound to help the
poor and down trodden for the purpose of enabling them to pursue higher education. The
only difficulties which is expressed by the respondent Bank is that they are bound by the
guidelines issued by the Reserve Bank of India, which states that loans need not be given
for training courses like Teacher Training courses offered by Private Institutions and they
need not be considered under the Model Educational Loan Scheme. Therefore, the
stumbling block appears to be the restriction imposed by the Reserve Bank of India.
        17. The Model Educational Loan Scheme announced during November, 2007, has
been filed by the writ petitioner in the additional typed set of papers. Under the scheme, it
has been stated that Education is central to the Human Resources Development and
empowerment in any country. National and State level policies are framed to ensure that
this basic need of the population is met through appropriate public and private sector
initiatives. While Government endeavour to provide primary education to all on a universal
basis, higher education is progressively moving into the domain of private sector. With a
gradual reduction in Government subsidies higher education is getting more and more
costly and hence, the need for institutional funding in this area. It has been further stated
that the scope of education has widened both in India and abroad covering new courses in
diversified areas. Development of human capital is a national priority and it should be the
endeavour of all that no deserving student is denied opportunity to pursue higher education
for want of financial support. Loans for education should be seen as an investment for
economic development and prosperity. Knowledge and information would be the driving
force for economic growth in the coming years. It has also been stated that based on
recommendations made by a Study Group, IBA had prepared a Model Educational Loan
Scheme in the year 2001 which was advised to banks for implementation by Reserve Bank
of India vide Circular No. RPCD. PLNFS. BC. No. 83/06.12.05/2000-01 dated April 28,
2001 along with certain modifications suggested by the Government of India. In line with
the announcement made by the Hon‟ble Finance Minister in his Budget Speech for the year
2004-05, IBA had communicated certain changes in the security norms applicable to
educational loans with limits above Rs. 4 lakhs and up to Rs. 7.5 lakhs.
       18. With the above mentioned avowed object, the Model Scheme was prepared
based on the suggestions of the Study Group. The object of the scheme was that every
meritorious student though poor is provided with an opportunity to pursue education with
the financial support from the banking system with affordable terms and conditions.
       19. The scheme could be adopted by all Commercial Banks. It is further stated that
the scheme only provides broad guidelines to the banks for operationalising the
educational loan scheme and the implementing bank will have the discretion to make
changes suiting to the convenience of the students/parents to make it more customer
friendly.
       20. Clause 4.2 enumerates courses eligible. Sub-clause (a) of Clause 4.2 deals with
courses where studies could be made in India and sub-clause (b) of Clause 4.2 deals with
studies abroad. Under sub-clause (a), apart from the courses which have been enumerated,
other courses leading to Diploma/Degree etc., conducted by colleges, Universities approved
by UGC/Government/AICTE/AIBMS/ICMR etc. It is to be noted that in sub-clause (a) of
Clause 4.2, it has been mentioned that the list of students in India is only an indicative list.
The scheme also deals with the other matters regarding quantum of finance, margin
money, security, etc., which are not required to be dealt with in the present case.
       21. Further, I also do not propose to deal with the quantum of finance, which the
petitioner is entitled to and propose to decide the question, as to whether the reasoning
given in the impugned order is correct and as to whether the same is in consonance with
the scheme.
       22. The Hon‟ble Supreme Court in Central Bank of India v. Ravindra and others,
reported in 2002 (1) SCC 367, was considering, among other matters, the effect of circulars
issued by the Reserve Bank of India under the Banking Regulations Act, the Constitution
Bench of the Hon‟ble Supreme Court, after considering the matter in great detail held as
follows:
          “(5) The power conferred by Sections 21 and 35-A of the Banking Regulation
                Act, 1949 is coupled with duty to act. The Reserve Bank of India is the prime
                banking institution of the country entrusted with a supervisory role over
                banking and conferred with the authority of issuing binding directions,
                having statutory force, in the interest of the public in general and preventing
                banking affairs from deterioration and prejudice as also to secure the
                proper management of any banking company generally. The Reserve Bank
                of India is one of the watchdogs of finance and economy of the nation. It is,
                and it ought to be, aware of all relevant factors, including credit conditions
                as prevailing, which would invite its policy decisions. RBI has been issuing
                directions/circulars from time to time which, inter alia, deal with the rate of
                interest which can be charged and the periods at the end of which rests can
                be struck down, interest calculated thereon and charged and capitalized. It
                should continue to issue such directives. Its circulars shall bind those who
                fall within the net of such directives. For such transaction which are not
                squarely governed by such circulars, the RBI directives may be treated as
                standards for the purpose of deciding whether the interest charged is
                excessive, usurious or opposed to public policy.
          56. ………RBI directives have not only statutory flavour, any contravention
                thereof or any default in compliance therewith is punishable under sub-
                  section (4) of Section 46 of Banking Regulation Act, 1949. The Court can act
                  on an assumption that transactions or dealings have taken place and
                  accounts maintained by banks in conformity with RBI directives”.
        23. In view of the law laid down by the Hon‟ble Supreme Court, the directives issued
by the Reserve Bank of India are binding by the respondent Bank. In view of this said legal
position, it is to be seen as to whether there is absolutely bar under the scheme or any
specific direction by the Reserve Bank of India. As already noted the list of courses, which
are eligible for loan is only indicative and not exhaustive.
        24. The entries in the list of courses should be read in consonance with the object
sought to be achieved by the scheme, which was announced by the Government of India.
Therefore, in my view, such clauses regarding the course of study should be given the
widest interpretation, so that any student should not be put to prejudice to pursue his/her
higher studies for want of finance. In fact, the objective of the scheme, it has been clearly
stated that no deserving student should be denied an opportunity to pursue higher
education for want of financial support.
        25. With the above, in my mind, if the list of courses as indicated, is perused, the
requirement being that such diploma or degree course conducted by the Colleges or
University        should        be       approved      by       statutory       bodies      like
UGC/Government/AICTE/AIBMS/ICMR etc.
        26. The learned counsel for the petitioner has produced the copy of the proceedings
of the National Council for Teacher Education, wherein the said council has granted
recognition to the Annai Teacher Training Institute, Kumbakonam, for elementary D.TED
course.
        27. According to the counsel for the petitioner, this order of recognition amply proves
that the course, which the petitioner is undergoing, is an approved course by a statutory
body. Hence, the impediment stated by the respondent bank is incorrect, since the course is
an approved course and therefore, the bank ought to have processed the application.
        28. The right conferred under Article 41 of the Constitution, though not a justiciable
right, the Hon‟ble Supreme Court has made it meaningful, by various decisions keeping in
mind, the goal of socio economic justice as promised in the preamble of the Constitution
and other directives embodied in Part IV of the Constitution.
        29. With this object, the Educational Loan Scheme has been brought about by the
Government of India and to ensure that no deserving student is denied opportunity to
pursue higher education for want of financial support.
        30. Even under the scheme, it has been stated in Clause 3 that it is only a broad
guidelines to the banks and the implementing bank will have the discretion to make
changes suiting to the convenience of the students/parents to make it more customer
friendly.
        31. In view of the reasoning, I am of the clear view that the reasons cited in the
impugned order for rejecting the petitioner‟s loan application is erroneous and liable to be
interfered with.
        32. This Court in the case of Deen Dayal Medical and Educational Trust, as referred
supra was considering the writ petition filed to quash an order passed by the Bank,
rejecting an application for grant of Educational loan and for a direction to process the
application.
       33. The petitioner in the said case was an Educational Trust, which submitted an
application for availing loan for construction of building and purchase of equipment for the
proposed medical college.
       34. The claim was resisted by the Bank stating that the loan application was rejected
on the ground of lack of financial viability as well as improper project revenue scheme. In
such factual background, this Court held that the matters, which weigh with the Bank in
rejecting the proposal cannot be subjected to review like an Appellate Authority. However,
in the case on hand as stated by me earlier, the only issue which is taken up for
consideration is as to whether the course of study would fall within the eligibility criteria of
the scheme. Hence, this judgment does not render support to the contentions of the
respondent Bank.
       35. In fine, the writ petition is allowed and the impugned order is set aside and there
will be a direction to the respondents 2 and 3 to process the petitioner‟s application for
educational loan, in accordance with the provisions of the Model Education Loan Scheme
and other direction and regulations, which are applicable, within a period of three weeks
from the date of receipt of a copy of this order. Consequently, connected miscellaneous
petition is closed. No costs.
                                                                              Petition allowed.



                                 [2010 (1) T.N.C.J. 199 (SC)]
                                      SUPREME COURT
BEFORE:
             TARUN CHATTERJEE AND R.M. LODHA, JJ.
                             M/S. SOM DATT BUILDERS LTD.                        ...Appellant
                                             Versus
                  UNION OF INDIA AND OTHERS                                 ...Respondents
[Civil Appeal No. 2088 of 2007 with Civil Appeal Nos. 7475-7476/2006 (SLP (C) Nos. 6808-
 6809 of 2008), Civil Appeal No. 7477/2009 (SLP (C) No. 12127 of 2006), Civil Appeal No.
 7478/2009 (SLP (C) No. 12722 of 2006), Civil Appeal No. 4314 of 2008 and Civil Appeal
                      No. 2087 of 2007, decided on 9th November, 2009]
        Mines and Minerals (Development and Regulation) Act, 1957—Section 3 (e)—
„Ordinary earth‟ used for filling or levelling purposes in construction of embankments,
roads, railways, buildings declared to be „minor mineral‟ by Central Government—In context
of Section 3 (e) of the Act, held „ordinary earth‟ comprehended within word „any other
mineral‟.        (Paras 3 and 22)
        Case law.—(1888) LR 13 Appeal Cases 657; 1910 AC 116; (1901) 1 Q.B. 317; (1976)
3 SCC 784; (1978) 4 SCC 11; 47 LEd 575; (2003) 9 SCC 534; 1995 Supp. (1) SCC 642; AIR
1969 Cal 281—referred..
                                         Important point
        Royalty is payable on excavation of any minor minerals.
                                            JUDGMENT
        R.M. LODHA, J.—Leave granted in SLP (Civil) Nos. 12127 of 2006, 12722 of 2006 and
6808-6809 of 2008.
       2. This group of seven appeals arises from the common judgment passed by the High
Court of Judicature at Allahabad on February 28, 2006 and, therefore, all these appeals
were heard together and are being disposed of by this judgment.
       3. The core issue that calls for determination in these appeals is whether „ordinary
earth‟ used for filling or levelling purposes in the construction of embankments, roads,
railways, buildings has validly been declared to be a „minor mineral‟ by the Central
Government vide notification dated February 3, 2000 issued under Section 3(e) of Mines
and Minerals (Development and Regulation) Act, 1957 (for short, „Act, 1957‟).
       4. It is not necessary to refer to the facts of each of these appeals. The brief narration
of facts in Civil Appeal No. 2088 of 2007 will suffice. The appellant therein is a company
incorporated under the Companies Act, 1956. It is engaged in the construction of business
towers, hotels and various other infrastructural development projects. According to them,
an agreement was entered into between the Company and National Highway Authority of
India for widening of Grand Trunk Road from 393 kilometre stone to 470 kilometre stone
at Sikandara, Kanpur. For the purpose of filling and levelling of road, the company entered
into agreement with the local land holders/agriculturists for purchase of „ordinary earth‟
and paid them accordingly. Various demand notices are said to have been issued to the
appellant towards royalty for lifting „ordinary earth‟ necessitating them to approach the
High Court of Judicature at Allahabad challenging the constitutional validity of notification
dated February 3, 2000 issued by the Central Government. They also challenged the
amendment brought in the First Schedule by the State of Uttar Pradesh in Uttar Pradesh
Minor Minerals (Concession) Rules, 1963 (for short, „Rules, 1963‟) fixing royalty for the use
of „ordinary earth‟ at the rate Rs. 4/- per cubic metre.
       5. Section 3 of the Act, 1957 defines „minerals‟ and „minor minerals‟ as follows :
         “Section 3.Definitions.—In this Act, unless the context otherwise requires,—
          (a)     “minerals” includes all minerals except mineral oils;
           (b)    .....
          (c)     .....
          (d)     .....
          (e)     “minor minerals” means building stones, gravel, ordinary clay, ordinary sand
                  other than sand used for prescribed purposes, and any other mineral which
                  the Central Government may, by notification in the Official Gazette, declare
                  to be a minor mineral;.........”
       6. In exercise of the power conferred under Section 3(e), Central Government issued
the following notification on February 3, 2000 :
         “G.S.R.95(E).—In exercise of the powers conferred by clause (e) of Section 3 of the
         Mines and Minerals (Development and Regulation) Act, 1957 (67 of 1957), the
         Central Government hereby declares the „ordinary earth‟ used for filling or levelling
         purposes in construction of embankments, roads, railways, buildings to be a minor
         mineral in addition to the minerals already declared as minor minerals hereinbefore
         under the said clause.”
       7. That a substance has to be mineral before it can be notified as a „minor mineral‟
pursuant to the power under Section 3(e) of the Act of 1957 is not in dispute. Whether
„ordinary earth‟ is a mineral is the primary question for consideration. The question is a little
intricate one because the definition of „minerals‟ in the Act, 1957 is not of much help in
finding answer to the question.
       8. The word „mineral‟ has come up for judicial interpretation from time to time.
      9. In Lord Provost and Magistrates of Glasgow v. Farie, (1888) LR 13 AC 657, the
issue before the House of Lords was whether clay is included in „other minerals‟ under the
Waterworks Clauses Act, 1847. Lord Halsbury, L.C said :
        “There is no doubt that more accurate scientific investigation of the substances of
        the earth and different modes of extracting them have contributed to render the
        sense of the word “minerals” less certain than when it originally was used in relation
        to mining operations. I should think that there could be no doubt that the word
        “minerals” in old times meant the substances got by mining, and I think mining in
        old times meant subterranean excavation. I doubt whether in the present state of
        the authorities it is accurate to say that in every deed or in every statute the word
        “minerals” has acquired a meaning of its own independently of any question as to
        the manner in which the minerals themselves are gotten.”
      Lord Watson in his opinion stated that “mines” and “minerals” are not definite terms:
they are susceptible of limitation or expansion, according to the intention with which they
are used.
      10. The House of Lords in North British Railway Company v. Budhill Coal and
Sandstone Company and others, (1910) AC 116, was concerned with the question whether
sandstone or freestone is included in the minerals excepted by Section 70 of the Railways
Clauses Consolidation (Scotland) Act of 1845. Lord Loreburn, L.C. considered number of
decisions including the aforequoted decision and summarised the tests applied in various
cases in the following words:
        “.....It is not possible to extract any uniform standard. The same is true of the
        opinions expressed by different learned Judges. A variety of tests have been
        propounded, which are discussed by Lord Gorell. I agree with him both in his
        enumeration and in his criticism. Is the substance in common parlance a mineral?
        Is it so considered by geologists? Is it a substance of any peculiar value? No one
        principle has been accepted, and every principle appears to have its friends.”
      11. In Scott v. Midland Railway Company, (1901) 1 Q.B. 317, Darling, J. observed that
the word “minerals” is one which at different times has been used with very different
meanings. In some statutes it has a very restricted meaning, in others a very wide one. In
order to determine in each case whether the word is used in a wide or narrow sense we
must, as Lord Herschell said in Glasgow v. Farie, (supra) look at the object which the
Legislature had in view.
      12. In Great Western Railway Company v. Carpalla United China Clay Company,
Limited and another, (1910) A.C. 83, House of Lords had an issue before it whether China
clay was a mineral within the provisions of the Railways Clauses Consolidation Act, 1845.
Lord Macnaghten said :
        “......The word „minerals‟ undoubtedly may have a wider meaning than the word
        „mines‟. In its widest signification it probably means every inorganic substance
        forming part of the crust of the earth other than the layer of soil which sustains
        vegetable life.”
      13. In Bhagwan Das v. State of U.P. and others, (1976) 3 SCC 784, it was argued
before this Court that the sand and gravel are deposited on the surface of the land and not
under the surface of the soil and, therefore, they cannot be called minerals. Y.V.
Chandrachud, J. (as he then was) negating the said contention said :
        “.........It is in the first place wrong to assume that mines and minerals must always
        be subsoil and that there can be no minerals on the surface of the earth. Such an
        assumption is contrary to informed experience. In any case, the definition of mining
        operations and minor minerals in Section 3(d) and (e) of the Act of 1957 and Rule
        2(5) and (7) of the Rules of 1963 shows that minerals need not be subterranean
        and that mining operations cover every operation undertaken for the purpose of
        “winning” any minor mineral. “Winning” does not imply a hazardous or perilous
        activity. The word simply means “extracting a mineral” and is used generally to
        indicate any activity by which a mineral is secured. “Extracting”, in turn, means,
        drawing out or obtaining. A tooth is „extracted‟ as much as is fruit juice and as much
        as a mineral. Only, that the effort varies from tooth to tooth, from fruit to fruit and
        from mineral to mineral.”
       14. In the case of M/s. Banarsi Dass Chadha and Brothers v. Lt. Governor, Delhi
Administration and others, (1978) 4 SCC 11, a three-Judge Bench of this Court was seized
with the question whether „brick earth‟ is a „minor mineral‟ within the meaning of that
expression as defined in Section 3(e) of the Act, 1957. Chinnappa Reddy, J. speaking for
the Bench observed :
        “........The expression “minor mineral” as defined in Section 3(e) includes „ordinary
        clay‟ and „ordinary sand‟. If the expression “minor mineral” as defined in Section
        3(e) of the Act includes „ordinary clay‟ and „ordinary sand‟, there is no reason why
        earth used for the purpose of making bricks should not be comprehended within the
        meaning of the word “any other mineral” which may be declared as a “minor
        mineral” by the Government. The word “mineral” is not a term of art. It is a word of
        common parlance, capable of a multiplicity of meanings depending upon the
        context. For example the word is occasionally used in a very wide sense to denote
        any substance that is neither animal nor vegetable. Sometimes it is used in a
        narrow sense to mean no more than precious metals like gold and silver. Again, the
        word “minerals” is often used to indicate substances obtained from underneath the
        surface of the earth by digging or quarrying. But this is not always so as pointed out
        by Chandrachud, J. (as he then was) in Bhagwan Dass v. State of U.P.”
       This Court referred to a decision of the Supreme Court of United States in Northern
Pacific Railway Company v. John A. Soderberg, 47 LEd 575 and quoted the observations
made therein as follows :
        “The word “mineral” is used in so many senses, dependent upon the context, that
        the ordinary definitions of the dictionary throw but little light upon its signification in
        a given case. Thus, the scientific division of all matter into the animal, vegetable, or
        mineral kingdom would be absurd as applied to a grant of lands, since all lands
        belong to the mineral kingdom, and therefore, could not be excepted from the grant
        without being destructive of it. Upon the other hand, a definition which would
        confine it to the precious metals-gold and silver-would so limit its application as to
        destroy at once half the value of the exception. Equally subversive of the grant
        would be the definition of minerals found in the Century Dictionary; as “any
        constituent of the earth‟s crust;” and that of Bainbridge on Mines: “All the
        substances that now form, or which once formed, a part of the solid body of the
        earth.” Nor do we approximate much more closely to the meaning of the word by
        treating minerals as substances which are “mined,” as distinguished from those
        which are “quarried,” since many valuable deposits of gold, copper, iron, and coal lie
        upon or near the surface of the earth, and some of the most valuable building
        stone, such, for instance, as the Caen stone in France, is excavated from mines
        running far beneath the surface. This distinction between underground mines and
        open workings was expressly repudiated in Midland R. Co. v. Haunchwood Brick &
        Tile Co., L.R. 20 Ch. Div. 552, and in Hext v. Gill, L.R. 7 Ch. 699.”
        This Court further held in paragraph 6 of the report thus :
          “The Supreme Court of United States also referred to several English cases where
          stone for road making or paving was held to be „mineral‟, as also granite,
          sandstone, flint stone, gravel, marble, fire clay, brick-clay, and the like. It is clear
          that the word „mineral‟ has no fixed but a contextual connotation.”
        It was then concluded that word „mineral‟ has no definite meaning but has a variety
of meanings, depending on the context of its use. This is what this Court observed :
          “........In the context of the Mines and Minerals (Regulation and Development) Act,
          we have no doubt that the word „mineral‟ is of sufficient amplitude to include „brick-
          earth‟. As already observed by us, if the expression „minor mineral‟ as defined in the
          Act includes „ordinary clay‟ and „ordinary sand‟, there is no earthly reason why „brick-
          earth‟ should not be held to be „any other mineral‟ which may be declared as a
          „minor mineral‟. We do not think it necessary to pursue the matter further except to
          say that this was the view taken in Laddu Mal v. State of Bihar, Amar Singh Modilal
          v. State of Haryana and Sharma & Co. v. State of U.P. We do not agree with the view
          of the Calcutta High Court in State of West Bengal v. Jagdamba Prasad, that
          because nobody speaks of „ordinary earth‟ as a mineral it is not a minor mineral as
          defined in the Mines and Minerals (Regulation and Development) Act.”
        15. The decision of this Court in Banarsi Dass Chadha squarely answers the question
posed before us. However, the learned senior counsel for the appellants heavily relied upon
a subsequent decision of this Court in V.P. Pithupitchai and another v. Special Secretary to
the Govt. of T.N., (2003) 9 SCC 534, and submitted that „ordinary earth‟ is not
comprehended by the expression „mineral‟. That was a case where the question was
whether seashells could be termed to be „mineral‟ within the meaning of the Act, 1957.
This Court referred to earlier decisions viz; State of M.P. v. Mahalaxmi Fabric Mills Ltd.,
1995 Supp. (1) SCC 642, Bhagwan Dass (supra) and Banarsi Dass Chadha (supra) and also
noticed the meaning of the word „mineral‟ noted in (i) Webster‟s 3rd New International
Dictionary, 1968; (ii) Funk and Wagnalls‟ Standard Dictionary, International Edn., Vol. II; (iii)
Oxford Illustrated Dictionary and (iv) Groliar International Dictionary, Vol.II. We deem it
appropriate to reproduce paragraph 13 wherein meaning of the word „mineral‟ noted in
aforesaid dictionaries was noticed :
          “13. This is in keeping with the meaning given in the several dictionaries referred
                     to by the High Court to determine the meaning of the word “mineral” which
                     are reproduced:
      (i)       Webster‟s 3rd New International Dictionary, 1968 defines “mineral” as:
          “a solid homogeneous crystalline chemical element or compound (as diamond or
          quartz) that results from the inorganic processes of nature and that has a
          characteristic crystal structure and chemical composi-tion or range of compositions
          ... something that is neither animal nor vegetable (as in the old general
          classification of things into three kingdoms: animal, vegetable and mineral)”.
     (ii)       Funk and Wagnalls‟ Standard Dictionary, International Edn., Vol. II:
          “a naturally occurring, homogeneous substance or material formed by inorganic
          processes and having a characteristic set of physical properties, a definite range of
          chemical composition, and a molecular structure usually expressed in crystalline
          forms ... . Any inorganic substance, as ore, a rock, or a fossil”.
    (iii)       Oxford Illustrated Dictionary:
         “Substance (e.g. metal, coal, salt) got by mining....... (Chem.) element or compound
         occurring naturally as a product of inorganic processes....... substance which is
         neither animal nor vegetable.”
    (iv)      Groliar International Dictionary, Vol. II:
         “any naturally occurring, homogeneous inorganic substance having a definite
         chemical composition and characteristic crystalline structure, colour and
         hardness....
         ... Any of various natural substances.
          (a)     An element, such as gold or silver.
          (b)     A mixture of inorganic compounds, such as hornblende or granite.
          (c)     An organic derivative, such as coal or petroleum ... any substance that is
                  neither animal nor vegetable; inorganic matter”.”
       16. In V.P. Pithupitchai, this Court did not consider whether seashells were covered
within the residuary entry in the Second Schedule but considered the correctness of the
High Court‟s view whether seashell is limeshell within the meaning of Item 28 of the
Second Schedule. In paragraph 15 of the report, the following observations were made:
         “15. A distinction must be drawn between (i) a substance identified as a mineral,
                  (ii) a substance containing minerals (for example bones which contain large
                  percentages of calcium and phosphate and to some extent carbonate), and
                  (iii) a substance which may be the original source of a mineral (for example
                  plants which after being subjected to millions of years of geological
                  processes ultimately become coal). In the first case, the classification of a
                  substance as a mineral is simple. But the bones in the second class and
                  trees in the third class can hardly be termed to be minerals although they
                  may contain or ultimately result in a mineral. Seashells may, like bones,
                  contain calcium carbonate, and may also like trees, through a geological
                  process result in a mineral such as limestone. But it cannot be said that a
                  seashell in its original form is a mineral.”
       17. In our view, the decision of this Court in V.P. Pithupitchai is a substance specific
and not of much help in deciding the case in hand for more than one reason. In the first
place, in that case the Court was not concerned with the power conferred upon the Central
Government to declare a substance „minor mineral‟ in exercise of the power conferred on it
under Section 3(e) of the Act,1957. Secondly, and more importantly, in that case the Court
was called upon to determine the correctness of the High Court‟s opinion whether a
seashell is limeshell within the meaning of item 28 of the Second Schedule to the Act,
1957. It is true that in paragraph 15 of the report, this Court drew distinction between (i) a
substance identified as a mineral, (ii) a substance containing minerals and (iii) a substance
which may be the original source of mineral and then it was held that seashell in its original
form is not a mineral but, we are afraid, the test applied by this Court in V.P. Pithupitchai is
not of universal application.
       18. The learned senior counsel for the appellants submitted that as there is no
definition of „mineral‟ in the Act, 1957 or the Rules, 1963, dictionary meaning of the word
„mineral‟ is most pertinent and apt to the context. In this regard, he referred to the Black‟s
Law Dictionary (Sixth Edition) wherein the meaning of the „mineral‟ is noted to be an
inorganic substance which is homogeneous in structure and similar in the composition
when found on or under the soil bed. The learned senior counsel would submit that
„ordinary earth‟ (sadharan mitti) is not covered by the definition of „mineral‟ as noted above.
He also submitted that one cannot equate „ordinary earth‟ (sadharan mitti) with „ordinary
clay‟ and „ordinary earth‟ is not like „ordinary clay‟. The learned senior counsel argued that
Banarsi Dass Chadha was a case relating to „brick earth‟ and there was no cause of action,
no plea and no argument raised as regards „ordinary earth‟ and the remark in passing
about „ordinary earth‟ or the judgment of Calcutta High Court in the State of West Bengal
and others v. Jagadamba Prasad Singh and others, AIR 1969 Cal 281, at the fag end is
obiter and not part of law laid down by this Court. According to him, Banarsi Dass Chadha is
not an authority or precedent for the purpose of the present case and it is the ratio in V.P.
Pithupitchai that governs and binds the case.
        19. It is appropriate to reproduce the meaning of the word „mineral‟ noted in Black‟s
Law Dictionary (Eighth Edition) since it is a later edition. It reads thus:
         “mineral, n. 1. Any natural inorganic matter that has a definite chemical
         composition and specific physical properties that give it value “most minerals are
         crystalline solids”. [Cases: Mines and Minerals 48. C.J.S. Mines and Minerals „‟ 4,
         140-142.] 2. A subsurface material that is explored for, mined, and exploited for its
         useful properties and commercial value. 3. Any natural material that is defined as a
         mineral by statute or case law.”
        20. A survey of various decisions referred to hereinabove would show that there is
wide divergence of meanings attributable to the word „mineral‟ and that in judicial
interpretation of the expression „mineral‟ variety of tests and principles have been
propounded; their application, however, has not been uniform. Insofar as dictionary
meaning of the word „mineral‟ is concerned, it has never been held to be determinative and
conclusive. The word „mineral‟ has not been circumscribed by a precise scientific definition;
it is not a definite term. The proposition that the minerals must always be subsoil and that
there can be no minerals on the surface of the earth has also not found favour in judicial
interpretation of the word „mineral‟. The term „mineral‟ has been judicially construed many
a time in widest possible amplitude and sometimes accorded a narrow meaning. Pithily
said, its precise meaning in a given case has to be fixed with reference to the particular
context. We find ourselves in agreement with the view expressed in Banarsi Dass Chadha
that word „mineral‟ is not a word of art and that it is capable of multiplicity of meanings
depending upon the context and that the word „mineral‟ has no fixed but a contextual
connotation. The test applied by this Court in V.P. Pithupitchai in holding seashell not a
mineral because in its original form it is not mineral, in our view, is not determinative and
conclusive in all situations when a question arises as to whether a particular substance is a
mineral or not. It is worth noticing that any natural material that is defined as a „mineral‟ by
statute or case law may also be covered by the expression „mineral‟ as noted in Black‟s Law
Dictionary (Eighth Edition).
        21. Common parlance test that because nobody speaks of „ordinary earth‟ as a
„mineral‟ has not been accepted by this Court in Banarsi Dass Chadha. As a matter of fact,
this Court in this regard specifically disagreed with the view of Calcutta High Court in
Jagadamba Prasad Singh (supra).
        22. In the context of Section 3(e), what we have discussed above, we hold, as it must
be, that „ordinary earth‟ is comprehended within the meaning of the word „any other
mineral‟. We adopt the reasoning given by three-Judge Bench in Banarsi Dass Chadha that
if the expression „minor mineral‟ as defined in Section 3(e) of the Act includes „ordinary
clay‟ and „ordinary sand‟, there is no reason why „ordinary earth‟ should not be
comprehended within the meaning of the word „any other mineral‟.
       23. Having held that „ordinary earth‟ is comprehended within the meaning of the
word „any other mineral‟ in Section 3(e) of the Act, 1957, the question that now arises is
whether the exercise of power by the Central Government under Section 3(e) of the Act,
1957 in declaring the use of „ordinary earth‟ for filling or levelling purposes in construction
of embank-ments, roads, railways, building as „minor mineral‟ is justified. It was contended
on behalf of the appellants that the Central Government cannot include any matter based
on mere use nor can it make purpose-based distinction. Once the „ordinary earth‟ is found
to be comprehended within the meaning of the word „any other mineral‟ for the purposes of
Section 3(e) of the Act, 1957, in our view, there is no impediment for the Central
Government to include or exclude the same based on a particular use or purpose. User can
be a valid reason for exclusion as well as inclusion in declaring mineral, „minor mineral‟ in
exercise of the powers conferred upon the Central Government under Section 3(e) of the
Act and exercise of any such power based on use or purpose cannot be said to be arbitrary.
We, accordingly, find no merit in the contention of the learned senior counsel for the
appellants that the declaration of the „ordinary earth‟ for the uses and purposes mentioned
in the notification dated February 3, 2000 is ultra vires the power conferred upon the
Central Government.
       24. The learned senior counsel for the appellants also argued that demand of royalty
can be raised only against a lessee or mining permit-holder and the demand raised against
the appellants, who are neither lessees nor mining permit holders, is violative of the Rules,
1963.
       25. The High Court while dealing with the aforesaid contention held :
         “Now coming to the question as to whether the amount of royalty can be recovered
         from the petitioners who are the contractors and suppliers of ordinary earth and
         other minor minerals, we are of the considered opinion that the royalty is payable
         on excavation of any minor minerals. The liability is primarily of the person holding
         the mining lease or a mining permit but if a person does not hold any mining lease
         or a mining permit, the liability does not cease. Any person dealing in a minor
         mineral is required to maintain and keep documents to show that the royalty has
         been paid and in order to ensure that due royalty on minor minerals has been paid
         within the State of U.P., the State Government by the three Government Orders have
         provided for producing copies of declaration in form MM 11 and treasury challan
         evidencing deposit of royalty. It cannot be said that any undue restrictions have
         been placed upon the right to carry on trade or business or it is without the authority
         of law.”
       26. Rules, 1963 have been framed by the Government of Uttar Pradesh in exercise of
its power conferred under Section 15 of the Act, 1957. These Rules have adopted the
definition of „minor mineral‟ as provided in Clause (e) of Section 3 of the Act, 1957. The
Rules make provision for grant of mining lease; payment of royalty/dead rent; conditions of
mining lease and permit; contraventions, offences and penalties for unauthorized mining
including consequences of non-payment of royalty, rent or other dues; powers of the District
Officers and the Officers of the Directorate of Geology and Mining for the purpose of
assessment of royalty; collection of royalty or dead rent through            contractor; appeal
against order passed under these Rules by the District Officer and remedy by way of
revision to the State Government.
       27. Vide notification dated March 20, 2001, First Schedule appended to the Rules,
1963 was amended and rate of royalty for „ordinary clay‟ „ordinary earth‟ was fixed at Rs.
4/- per cubic metre.
       28. Admittedly demand notices came to be issued to the appellants by the Office of
the District Officer bringing to their notice that they have extracted „ordinary earth‟ covered
by the definition of „minor mineral‟ without any permission or permit and that they have
also not paid royalty. The appellants were, thus, called upon to make payment of royalty.
However, neither the material placed before us nor from the judgment of the High Court, it
transpires that the appellants responded to the said notices and raised the objection that
demand of royalty cannot be raised against them as they were not lessees or mining permit
holders. In any case, if they raised such objection, they did not await decision of the
authorities in this regard. Rules, 1963 provide complete machinery for assessment and
recovery of royalty and consequences of non-payment of royalty. These Rules also provide
remedy to an aggrieved person against order passed under the Rules by the District Officer
demanding payment of royalty. The appellants, having failed to pursue remedy provided
under the Rules, 1963 as regards recovery of royalty from them, we are afraid, the view
taken by the High Court does not call for any interference in our jurisdiction under Article
136 of the Constitution.
      29. Consequently, all these appeals fail and are dismissed with no order as to costs.
                                                                        Appeals dismissed.

                              [2010 (1) T.N.C.J. 210 (Mad) (MB)]
                                     MADRAS HIGH COURT
                                      (MADURAI BENCH)
BEFORE:
            ARUNA JAGADEESAN, J.
                          AATHI CHETTIAR                                             ...Petitioner
                                             Versus
                          P. VAIKUNTAVALLI AND OTHERS                              ...Respondents
 [Civil Revision Petition (PD) No. 1097/2009 and M.P. No. 1/2009, decided on 1st October,
                                              2009]
        Tamil Nadu Court-fee and Suit Valuation Act, 1955—Section 7(2)—Court-fee—
Valuation of—Land classified as ryotwari land—Documents also produced in support of
claim—Hence, court-fee is correct and calls for no interference.
                               (Para 14)
        Case law.—2008 (2) LW 781; 1999 (2) LW 772; 1976 TNLJ 69; 1981 LW 502; 2001
(4) CTC 764.
        Counsel.—Mr. G.R. Swaminathan, for the petitioner; Mr. M. Vallinayagam, for the
respondent.
                                                 JUDGMENT
        ARUNA JAGADEESAN, J.—This civil revision petition is filed by the defendant against the
fair and decretal order dated 3.7.2009 passed in I.A.No. 203/2009 in O.S.No. 50/2008 by
the Ist Additional District Munsif, Tirunelveli.
        2. The brief facts that are essential for the disposal of this civil revision petition are
given below:
        The respondents/plaintiffs have filed the above said suit for recovery of possession of
the suit property from the petitioner. In the written statement, the petitioner has pleaded
that the plaint has not been properly valued. He has filed an application in I.A.No.203/2009
praying for a preliminary enquiry into the aspect of valuation and consequently the
pecuniary jurisdiction of the trial Court to take up the matter. During enquiry in the said
application, the petitioner has marked the sale deed dated 21.5.2008 as Ex.A.1 executed
by the respondents in favour of one Balan Nadar for sale consideration of Rs. 4 lakhs and
the same had been admitted by the 2nd respondent while he was confronted with the said
sale deed. On the other hand, Exs.B.7, B.8 and B.12 were filed on the side of the
respondents to show that the suit lands were described in the revenue records only as punja
lands and Ex.B-.13 to B.15 are the patta pass book for the suit lands and the kist receipts
are Ex.B-.16. The trial Court after considering the materials placed on both sides dismissed
the said application. Aggrieved by the same, this civil revision petition has been filed by the
defendant.
       3. Prior to this proceedings, the petitioner had filed a suit in O.S.No.61/1986 for
specific performance of the agreement dated 26.1.1983 and the same was dismissed by
the judgment and decree dated 31.7.1992. The petitioner filed an appeal in
A.S.No.128/1992 and the same was allowed, as against which second appeal was filed by
the predecessor of the respondents in S.A.No.1683/1995. Pending the appeal, before an
order of stay could be granted by the Court, the sale deed was executed and pursuant to the
decree, patta was transferred in the name of the defendants and the defendants made
improvements by putting up two houses, dug a well and planted trees. In the mean while
S.A.No.1683/1995 was transferred to the Madurai Bench and was allowed by the judgment
dated 21.11.2007. Hence, the respondents/plaintiffs have filed the present suit for
recovery of possession of the suit lands assessing the value on the basis of 30 times of kist
paid to the nanja lands.
       4. The petitioner has filed an application in I.A.No.1122/2208 questioning the
valuation made by the plaintiff and the court-fee paid thereon, praying for appointment of
Advocate Commissioner to note down the physical features and the location of the property
for the purpose of determining the value of the property and the same has been dismissed
by the trial Court by order dated 4.2.2009 as against which an appeal has been filed.
       5. Mr. G.R. Swaminathan, the learned counsel for the petitioner assailed the order
passed by the trial Court contending that the market value of the suit property should be
assessed taking into consideration the existing features as on the date of filing of the suit
and considering the fact that the suit property comprised of buildings, trees and well and
accordingly the value has to be determined together with the superstructure thereon and
therefore, the plaintiff should be compelled to pay the court-fee.
       6. The learned counsel for the petitioner drew the attention of this Court to the
decision of this Court rendered in the case of J.B. Joe Vilwarayar, President, Singikulam
Barathakula Ikkiya Santhai, Valliyoor and two others v. Loordhu Ammal and others, 2008
(2) LW 781. That is a case where the suit was filed for the relief of declaration and recovery
of vacant possession after demolishing the superstructure put up thereon. To assess the
superstructure a Commissioner was appointed, who assessed the value of the additional
buildings to a tune of Rs. 46 lakhs over and above a sum of Rs. 50 lakhs which was
assessed relating to the site and as such, it was contended that the District Munsif had no
pecuniary jurisdiction over the suit. This Court has held in paragraph 14 of the said
judgment thus :
        “14. The Court on two occasions on perusal of the Commissioner‟s report clearly
                held that virtually the said suit land was converted into a big plot area and
                several buildings cropped up. I am of the considered opinion that the
                plaintiffs having kept quiet, when the land was converted into plot area and
                the buildings have been constructed by the defendants, cannot now veer
                round and contend ignoring of all those developments that the plaintiffs
                want only the erstwhile ryotwari land and that they could value as
                agricultural land and could pay court-fee on kist value of such land.”
        7. From the above extract, it is seen that the land was converted into a big plot area
and several buildings had cropped up and the plaintiffs in the said suit kept quiet when the
land was converted into plot area and the buildings constructed by the defendants and on
such facts, this Court held that the plaintiff cannot ignore all those developments and insist
that it should be assessed only as ryotwari lands and pay the court-fee on kist value.
        8. The facts in this case are quite different and distinct. In this case, admittedly the
lands are still agricultural lands and agricultural operations are carried out in the said lands.
Hence, the observations made in the said decision cannot be applied to the facts of this
case.
        9. That apart, this Court in the case of Suseela and 4 others v. A.S.L. Rajan, 1999 (2)
LW 772, referring to the classification of suit property in revenue records as agricultural
land, held that so long as there is no modification or variation in the classification of the
suit lands from nanja into „house sites‟ and in the absence of any material produced by the
defendants for establishing the same, the court-fee has to be paid only as kist paying lands.
It is held thus:
         “The fact that the lands in the neighbouring area have been converted into house
         sites has already been considered by this Court in C.R.P.No.2017/1982 wherein it
         was held that the suit properties shall be treated as lands. The trial Court, having
         found from the kist receipts produced by the plaintiffs that the lands continued to
         be the ryotwari lands cannot hold that the suit has not been properly valued merely
         on the ground that the neighbouring lands have been converted into house sites.
         This question has to be necessarily decided only on the basis of the revenue
         records. The kist receipts produced by the plaintiffs, the petitioners herein, would
         clearly show that the suit properties are still treated as lands. Without taking into
         consideration these kist receipts and the earlier order of this Court, the trial Court
         has jumped to the conclusion on the hypothetical assumption that the situation
         prevailing at the time when this Court passed an order would have been different at
         present. There is no basis to arrive at such a conclusion.”
        10. A combined reading of Section 7 and Section 30 of the Tamil Nadu Court-fees
and Suit Valuation Act, 1955, it is apparent that Section 30 enacts that suits for possession
of immovable property not otherwise provided for must be valued at the market value of
the property which shall be computed in the manner prescribed by sub-section 2(a) of
Section 7 of the said Act. i.e., on the basis of multiple of revenue for the land. That being so,
ryotwari land should be valued under Section 7(2)(a) and the Court should not conjecture
upon the nature of such land by taking into consideration the probabilities of its user in
future or its potentialities.
        11. It is held in the case of Sorna Pandi Hadr v. Sivasubramania Nadar, 1976 TNLJ
69, that in the description in the revenue records is the key note for ascertainment of the
market value of the classified or described land in Section 7 and it is not open to the Court
to treat it differently as it is the duty of the Government to classify a particular land and as
there are Tribunals to decide as to how and in what manner the land has to be classified
(such as ryotwari, poramboke, grama natham, house site, etc.). It is further held that where
the suit land is shown in the revenue records as rytowari lands, the court-fee is payable at a
multiple of revenue though the land is used as a salt pan and such user is irrelevant for the
purpose of determining the court-fee.
        12. In the case of Jugaraj and others v. Corborundam Universal Limited, 1981 LW
502, it is held that in a suit for possession and other incidental reliefs, the valuation at 30
times the kist as ryotwari land is permissible and the prospective use is immaterial.
        13. In the case of Kamaleshwar Kishore Singh v. Paras Nath Singh and others, 2001
(4) CTC 764, it is held that the court-fee has to be paid on plaint as framed and not as it
ought to have been framed, unless while drafting the plaint the plaintiff had attempted at
evading payment of court-fee by his astuteness in drafting. It is held that it is substance of
relief and not form which will be determinative of valuation and payment of court-fee.
        14. In the instant case, after the verdict in S.A.No. 1693/1995, dismissing the suit
filed by the defendant for specific performance of the agreement, the respondents had
sought for recovery of possession of the suit land in S.No. 69/2 without any reference to the
features and improve-ments made thereon. As such, since those lands are classified as
ryotwari land, the court-fee paid by the plaintiffs determining the value under Section 7 (2)
of the Tamil Nadu Court-fee and Suit Valuation Act is correct and there is no reason to
interfere with the well considered order of the Court below.
        15. In the result, this civil revision petition is dismissed. No costs. Consequently, the
connected M.P. is closed.
                                                                              Revision dismissed.

                                  [2010 (1) T.N.C.J. 214 (Mad)]
                                      MADRAS HIGH COURT
BEFORE:
            C.S. KARNAN, J.
                              UNITED INDIA INSURANCE CO. LTD.                        ...Appellant
                                              Versus
                 PITCHAMMAL AND ANOTHER                                           ...Respondents
     [C.M.A. No. 1790 of 2007 and M.P. No. 1 of 2007, decided on 1 December, 2009]
                                                                         st


       Motor Vehicles Act, 1988—Section 173—Appeal against award of M.A.C.T.—Accident
by motor cycle—Victim, a lady—Disability assessed at 50%—Tribunal awarded Rs.
1,60,000/- as compensation of different heads—Held, arithmetical flaw in award of
Tribunal in calculation—Award being fair and just correction made and Rs. 1,35,000/-
awarded with interest of 7.5%.
                                                                            (Paras 3, 13 and 15)
       Counsel.—Mr. R. Kumararaja, for the appellant; Mr. S. Sounthar, for the respondents.
                                             JUDGMENT
       C.S. KARNAN, J.—The above civil miscellaneous appeal has been filed by the
appellant/second respondent against the Award and Decreetal Order dated 16.12.2005,
made in M.C.O.P.No.14 of 2005, on the file of the Motor Accidents Claims Tribunal, Addl.
Sub-Court, Mayiladuthurai, awarding a compensation of Rs.1,60,000/- with 7.5% interest
from the date of filing the petition i.e. 22.12.2004 to till the date of award i.e. 16.12.2005.
       2. Aggrieved by the above award, the appellant/second respondent, United India
Insurance Co. Ltd., has filed the above appeal praying to set aside the order.
       3. The short facts of the case are as follows:
       The petitioner is an agriculturist and a milk vendor and earning a sum of Rs.3,000/-
per month. As her husband is sick, she has been thrust with the responsibility of managing
her family. On 6.8.2004, at around 12.00 hours, as she was returning from work and
walking on the left side of Melaperumpallam Main Road and when she was in front of
“Boomi Bricks Company”, a Suzuki Motorcycle bearing registration No.TN51 V4296, ridden
in a rash and negligent manner and at a high speed, dashed against the petitioner.
       4. In the result, two bones below her left knee was fractured and the bones came
right out of the skin. She sustained a deep wound on her left eyebrow. Further, her left hip
bone was also fractured. Further, she sustained tear injuries on her tore head, which were
later surgically stiched. Further, she also sustained injuries in her liver. Due to this, there
was inflammation of her liver and consequent breathlessness. She was admitted
immediately in Muthu Hospital, Mayiladuthurai. She took treatment there for three days
and subsequently she had taken treatment for four days at Government Hospital,
Mayiladuthurai as inpatient. As her condition deteriorated, she was admitted in the
Annamalai Medical College Hospital, Chidambaram as inpatient in the casual ward.
Subsequently, after her health improved, she was admitted at Muthu Hospital,
Mayiladuthurai as in patient. In spite of undergoing treatment, the petitioner is still
bedridden.
       5. A criminal case regarding the said accident has been registered by the Poompugar
Police in Crime No.269/2004 under Sections 279 and 337 of I.P.C. and the case is pending
investigation.
       6. Due to the accident, the petitioner has undergone pain and suffering and incurred
medical expenses and hence the petitioner has claimed a compensation of Rs.5,00,000/-
from the respondents. The first respondent being the owner of the said motorcycle and the
second respondent, as its insurer are jointly and severally liable to pay the compensation.
       7. The second respondent in its counter has resisted the claim stating that the rider
of the Suzuki Motorcycle was careful and the accident was a self-invited one. Further, the
police investigation has not yet been completed. The petitioner is also bound to establish
that the driver was holding proper driving licence and that the said vehicle has been insured
with the second respondent. Further, the delay in lodging of complaint and FIR has not
been explained by the petitioner. The injuries sustained by the petitioner was also not
admitted and it was submitted tat the injuries did not lead to any disability. The type of
treatment and expenses incurred by the petitioner was also not admitted. The claim of the
petitioner is also excessive. Further, the age, income and occupation of the petitioner were
also not admitted.
       8. The first respondent was set ex parte. On the petitioner‟s side, petitioner was
examined as P.W.1 and one Dr.Muthu, was examined as P.W.2. Exs.P-1 to P-12 were
marked. On the respondents‟ side, no witnesses were examined and no documents were
marked. The Tribunal upon hearing both sides and perusing the records gave the following
findings. Ex.P-1 is the Xerox copy of the FIR, Ex.P-2 is the Xerox copy of the Motor Vehicle
Inspector‟s Report, Ex.P-7 is the Discharge Card given by the Dr.Muthu. All these show that
the petitioner suffered injuries due to the motor accident that took place on the alleged
date and place. The second respondent in his pleadings had stated that the delay in filing
FIR had not been explained. P.W.2, the doctor has admitted in his cross-examination that
he did not intimate the police about the accident immediately and hence the Tribunal
accepted the explanation given by the Doctor for the delay of two days. Ex.P-2 discloses
that the accident was not due to mechanical defect of the motorcycle. So, on examination
and perusal of Ex.P-1, FIR, Ex.P-2, MVI Report, Ex.P-6, Outpatient Slip and Ex.P-7, Discharge
Card, the Tribunal came to the conclusion that the petitioner is eligible for compensation.
Further, the second respondent has alleged that the age of the petitioner was 60. But, on
examination of Ex.P-8, the Family Ration Card, the age of the petitioner was mentioned as
47 years and as per Ex.P-6, it is recorded as 45 years. Hence, the Tribunal accepted the
age of the petitioner as 47 years. Further, the policy number of the motorcycle is shown in
the MVI Report, which is marked as Ex.P-2. So, the Tribunal on examination of Ex.P-1 and
Ex.P-2 came to the conclusion that the rider of the two wheeler bearing registration
No.TN51 V4296 was negligent and that this had been the cause for the accident.
        9. For arriving at the quantum of compensation, the Tribunal examined Ex.P-4, which
is the observation made by the doctor in his prescription mentioning the fracture on the left
leg and an investigation to be done about the rib. Ex.P-3 is the Electra Cardiogram taken on
the petitioner. According to P.W.2, Dr.Muthu, the victim was suffering from breathlessness
and treatment was given. Ex.P-6 is the outpatient note given at Raja Muthaiah Medical
College Hospital and in the third slip a note is given about the victims condition. Later, it
has been investigated and it was found that the left rib has been broken and it has injured
the lung. From Dr.Muthu‟s evidence, it was established that the percentage of disability
suffered by the petitioner is 50%.
        10.The learned counsel appearing for the respondent argued that the injury on the
lung is not due to the accident and the rib fracture is a new investigation, for which, the
respondent are not liable to pay. But, the Tribunal on examination of Exs.P3 and P-4 came
to the conclusion that the petitioner‟s problem of breathlessness was investigated by
Dr.Muthu on the very day of admission. Hence, the Tribunal concluded that the
breathlessness was there for the petitioner even on the date of accident. According to
P.W.2, a CTN Scan done on the petitioner, after the accident gave a Vivid detail about the
injury in the chest cavity. He had seen a broken rib and the injury caused by it to the lungs.
The breathlessness according to the doctor is due to the injury of the lungs. Hence, the
Tribunal awarded a compensation of Rs.25,000/- for fracture of ribs sustained by the
petitioner in the accident, and Rs.50,000/- for disability of 50% and for pain and suffering.
Towards transportation and good food, the Tribunal awarded a sum of Rs.10,000/-. Ex.P-
11 is the medical bill claimed by the petitioner, which shows that a sum of Rs.40,250/-
paid to Dr.Muthu for the treatment. Apart from this, the petitioner had incurred medical
expenses at Rajah Muthiah Hospital. Put together, the Court awarded a compensation of
Rs.50,000/-. In total, the Tribunal awarded a sum of Rs.1,60,000/- for the injuries suffered
by the petitioner in the motor accident. First and second respondents are jointly and
severally liable to pay the compensation amount within a period of one month from the
date of the order of the Tribunal, with 7.5% interest per annum from the date of the petition
to the till date of deposit of award amount. Further, the Tribunal permitted the petitioner to
receive a sum of Rs.35,000/- in cash toward her immediate medical treatment and the
liabilities incurred. The balance amount of Rs.1,25,000/- was to be deposited as fixed
deposit in a bank for a period of three years and the petitioner was permitted to receive
interest once in six months. The first and second respondents were directed to pay
petitioners proportionate cost of Rs.6,779/-. The petitioner was directed to pay deficit
court-fee and Advocate fees was fixed at Rs.6,200/-.
        11. The learned counsel appearing for the appellant has argued in his appeal that the
Tribunal erred in awarding huge amount of compensation. The Tribunal had failed to see
that in the absence of production of accident register by the injured claimant, no amount of
injury/disability can be decided/fixed and no amount of compensation can be granted
without medical proof. The Tribunal erred in awarding a sum of Rs.25,000/- separately
towards the ribs fracture, in the absence of Scan Report as admitted by P.W.2. The
Tribunal erred in awarding a sum of Rs.50,000/- towards 50% disability, when there is no
disability and the Disability Certificate (Ex.P-9) is highly inflated. The Tribunal also erred in
awarding a sum of Rs.10,000/- for transportation, in the absence of any documentary
evidence.
        12. Further, the award on various heads come to Rs.1,35,000/- only and not
Rs.1,60,000/- as mentioned in the Tribunal order. As such, the learned counsel contended
that the award passed is erroneous and has to be set aside.
        13. The learned counsel appearing for the respondent submitted that the claimant
sustained five injuries that the first injury was on the left leg below the knee and that two
bones were fractured. The second injury was a deep wound on the left side eyebrow and
the same was surgically stiched. The third injury was the fracture in the left side hip. The
fourth injury was a tear injury on her lower jaw and the same was surgically stiched and the
fifth injury was a tear injury on her forehead and the same was also surgically stiched. The
learned counsel appearing for the respondents further argued that after the accident, the
claimant could not involve herself in agricultural work and also was unable to do her milk
business as usual. As such, she has suffered untold hardship. Supporting of the nature of
the injuries and treatment, P.W.2, one doctor was examined, who also issued Disability
Certificate of 50%. She had further taken treatment at two hospitals for which medical bills
had been produced. The quantum of compensation awarded by the Tribunal is reasonable.
        14. For the foregoing reasons and on consideration of the facts and circumstances of
the case, arguments of the learned counsel for their respective sides and considering the
quantum of compensation awarded, the Court is of the view that there is an arithmetical
error in the calculation of the award computed under various heads namely:
            1. Award for fracture of ribs        :      Rs.25,000/-
            2. Award for disability of 50%
                  and for pain and suffering     :      Rs.50,000/-
            3. For transportation and good
                  food                           :      Rs.10,000/-
            4. For medical expenses              :      Rs.50,000/-
        15. In total, the amount comes to only Rs.1,35,000/- and not Rs.1,60,000/- as
calculated by the Tribunal. This Court rectifies the arithmetic error and holds that the
amount awarded should have been only on Rs.1,35,000/-. Further, the award granted by
the Tribunal of Rs.50,000/- for disability of 50% and pain and suffering under a common
head is an error. So, this Court awards the said compensation of Rs.50,000/- only for
disability of 50%. A sum of Rs.25,000/- awarded by the Tribunal for fracture of ribs should
be treated as an award under the head of pain and suffering. As such, this Court has
corrected the arithmetical flaw and award granted under the common head and modifies
the award as Rs.1,35,000/- from Rs.1,60,000/- as passed by the Tribunal together with
interest at the rate of 7.5% per annum. This Court is of the view that the award granted is
fair and equitable. Considering that the claimant has sustained five injuries including
grievous injuries and Disability Certificate Ex.P-9 issued by the doctor and Medical Bills,
Ex.P-5 issued by the Hospital. These have all been considered by the Tribunal and based on
this they have awarded a fair and just a compensation but for a minor arithmetical error. As
such, this Court grants an award of Rs.1,35,000/- with interest of 7.5% as compensation to
the claimant.
        16. This Court has directed the appellant/United India Insurance Company Ltd., on
2.8.2007 to deposit the entire compensation amount into the credit of M.C.O.P.No.14 of
2005, on the file of the Motor Accidents Claims Tribunal, Addl. Sub-Court, Mayiladuthurai.
        17. It is open to the respondent/claimant to receive the compensation amount a
sum of Rs.1,35,000/- with accrued interest at the rate of 7.5%, lying to the credit of
M.C.O.P.No.14 of 2005, on the file of the Motor Accidents Claims Tribunal, Addl. Sub-Court,
Mayiladuthurai, by filing necessary payment out application in accordance with law.
Likewise, the appellant/United India Insurance Company is permitted to withdraw the
excess amount, which is deposited into the credit of M.C.O.P.No.14 of 2005, on the file of
the Motor Accidents Claims Tribunal, Addl. Sub-Court, Mayiladuthurai.
        18. In the result, the civil miscellaneous appeal is partly allowed in the above terms
and consequently, the award passed by the Motor Accidents Claims Tribunal, Addl. Sub-
Court, Mayiladuthurai, in M.C.O.P.No.14 of 2005 is modified. Consequently, connected
miscellaneous petition is also closed. No costs.
                                                                Appeal partly allowed.



                                [2010 (1) T.N.C.J. 219 (Mad)]
                                    MADRAS HIGH COURT
BEFORE:
           C.S. KARNAN, J.
                             UNITED INDIA INSURANCE CO. LTD.                      ...Appellant
                                             Versus
                         MARUDHATHAI @ BAGIYAM AND OTHERS                   ...Respondents
                  [C.M.A. No. 192 of 2005, decided on 3 December, 2009]
                                                          rd


       Motor Vehicles Act, 1988—Section 173—Appeal against award and decree of M.A.C.T.
by the appellant—Deceased driver of van dashed by lorry—Died due to accident—Driver of
lorry held negligent by Tribunal—Legal heirs of deceased were awarded compensation of
Rs. 8,16,000/- on different heads—Held, since no proof of deceased earning and manner of
employ-ment—Taking his income as Rs. 4,000/- instead of Rs. 6,000/- compensation
considered at Rs. 5,76,000/-—For consortium award was enhanced from Rs. 10,000/- to
Rs. 20,000/-—Funeral expenses awarded by Tribunal Rs. 3,000/- enhanced to Rs. 10,000/-
—In total Rs. 6,36,000/- granted with 9 per cent interest per annum.
(Paras 3, 16, 21, 23 to 26)
       Case law.—2002 ACJ 407; 2001 ACJ 428; 2002 ACJ 1571; 2004 (2) LW 95; 2000 (3)
SC 698; 1994 ACJ 1; 1999 ACJ SC 1400; 2002 ACJ 1601; 1996 ACJ 581; AIR 1998 SC
3036; 1998 ACJ 920; 2004 ACJ 222; CDJ 1996 SC 418.
       Counsel.—Mr. M.B. Gopalan, for the appellant; Mr. S.S. Swaminathan, for the
respondents.
                                        Important point
       Deceased, a driver working under private individual, employer not examined, so his
employment cannot be considered to be permanent one.
                                            JUDGMENT
       C.S. KARNAN, J.—The above civil miscellaneous appeal has been filed by the
appellant/second respondent against the Award and Decree, dated 16.6.2004, made in
M.C.O.P.No.1204 of 2000, on the file of the Motor Accidents Claims Tribunal, Additional
District Court and Fast Track Court No.V, Coimbatore at Tiruppur, awarding a compensation
of Rs.8,16,000/- with 9% interest per annum from the date of the petition to till the date of
deposit of the compensation.
       2. Aggrieved by the above said award, the appellant/United India Insurance Co. Ltd.,
has preferred the above appeal to set aside the order.
       3. The short facts of the case are as follows:
       On 4.6.2000, at about 1.30 a.m. the deceased was driving the van bearing
registration No.TN39 J6035, near Urappanoor. At that time, the lorry bearing registration
No.TDM 9469, driven in a rash and negligent manner, dashed against the van and as a
result, the deceased died due to the injuries sustained in the accident. The accident was
due to the rash and negligent driving of the driver of the lorry in the course of the
employment under the first respondent, the owner of the lorry. The lorry is insured with the
second respondent. The van bearing registration No.TN39 J6035 is owned by the third
respondent and is insured with the fourth respondent. So, all the respondents are jointly
and severally liable to pay the compensation to the petitioners, who are the legal heirs of
the deceased.
        4. The deceased was a hale and healthy man of 38 years old at the time of the
accident. He was a van driver and agriculturist and was earning a sum of Rs.7,000/- per
month. He could have lived for another 25 years had he not died due to the accident. The
petitioners have spent a sum of Rs.20,000/- for the funeral expenses and a sum of
Rs.10,000/- for transporting body to native place. In total, the petitioners have claimed a
compensation of Rs.15,00,000/- with 18% interest from the respondents, under Sections
163(A) and 166 of the Motor Vehicles Act.
        5. The Thirumangalam Police Station has registered a criminal case in crime
No.582/2000.
        6. The second respondent in his counter has resisted the claim stating that the
alleged accident had happened only due to the carelessness of the deceased, while driving
van and that even if it is found by the Tribunal that the accident was caused by both the
drivers of the lorry and the van, the award should be apportioned. The respondent has
further denied that the driver of the lorry drove the vehicle in a rash and negligent manner.
Further, the age, income and occupation of the deceased was not admitted. Further, it was
submitted that the claim made in the petition was exaggerated and very high. Further, it
was denied that the petitioners were the legal heirs of the deceased. Further, the first
respondent has not given any particulars regarding the accident and the claim and it was
further submitted that the driver of the first respondent did not have valid driving licence at
the time of the accident. As such, the second respondent had prayed for dismissal of the
claim petition.
        7. The first and third respondents did not enter appearance and no counters have
been filed by them regarding the said claim.
        8. The fourth respondent/The New India Assurance Co. Ltd., Udumalpet in its counter
has resisted the claim stating that only the driver of the lorry bearing registration No.TDM
9469 had driven the vehicle at highspeed and in a rash and negligent manner and caused
the accident. Further, as it has not been stated in the claim that the van driver had driven
the van in a rash manner, the third and fourth respondents are not liable to pay any com-
pensation. Further, the age, income and occupation of the deceased was not admitted. It
was also not admitted that the petitioners were the legal heirs of the deceased. Further,
the claim in the petition was highly excessive. As such, the fourth respondent had prayed
for dismissal of the claim petition.
        9. The Motor Accident Claims Tribunal framed two issues for the consideration
namely:
      (i)    Who was responsible for the accident? Are the petitioners              entitled to
             receive compensation? If so, who is liable to pay the compensation?
     (ii)    What is the quantum of compensation payable to the petitioners?
        10. The second respondent has filed a petition bearing No.IA 721 of 2003, dated
7.8.2003, before the Tribunal under Section 170 of the Motor Vehicles Act to plead the
case for the owner of the lorry bearing registration No.TDM 9469. As such, the Tribunal
ignored the arguments advanced by the second respondent that the said lorry was not
insured with it.
        11. On the petitioners‟ side, two witness were examined as P.W.1 and P.W.2 and five
documents as Exs.P-1 to P-5 were marked. On the respondent‟s side, there were no oral or
documentary evidence advanced.
        12. Further, the Tribunal held that there was no dispute regarding the occurrence of
the accident as was seen from the counter given by the second and fourth respondent. The
first petitioner, the wife of the deceased, on being examined as P.W.1 has stated in her
evidence that on 4.6.2000, at about 1.30 a.m. when the deceased was driving the van
bearing registration No.TN39 J6035, in a slow and steady manner on the road near
Kiyavarappunur, the lorry bearing registration No.TDM 9469, coming in the opposite
direction was driven at a high speed and in a rash and negligent manner and dashed
against the said van thereby causing the accident and subsequent injuries to the deceased.
As a result of the injuries, the deceased had died. As such, the first petitioner had stated in
her evidence that only the driver of the first respondent was responsible for the accident.
        13. As the first respondent had not witnessed the accident, one Palanisami, the eye-
witness of the accident, was examined as P.W.2. The P.W.2, in his evidence has stated that
on 4.6.2000, at about 1.30 a.m. as he was proceeding on the road, on which the accident
had occurred, in his motorcycle bearing registration No.TN33 S5455, the said van driven by
the P.W.1‟s husband was proceeding on the same road 100 feet in front of it. At that time,
the lorry bearing registration No.TDM 9469, coming in the opposite direction and driven at a
high speed and in a rash and negligent manner, dashed against the said van and thereby
caused the accident. As such, the P.W.2 has stated that the accident had occurred only due
to the fault of the driver of the lorry. Even on cross-examination, the evidence given by the
P.W.2 could not be refuted or found untrue.
        14. Further, even in the FIR filed about the accident as Ex.P-1, it has been stated that
the accident was only due to the fault of the driver of the lorry bearing registration No.TDM
9469. Even on cross-examination, the evidence as per Exs.P-1 and P-2, the post-mortem
report could not be refuted for found untrue. The P.W.1, further had marked the death
certificate of the deceased as Exs.P-3 and P-5, the driving licence of her deceased husband.
On the petitioners side, it has been clearly established as to who was the cause for the
accident, but on the respondents side there were no oral or documentary evidence to
counter the same. Even, the driver of the first respondent has not adduced evidence to
prove that he is no responsible for the accident. As such, the Tribunal held that the
accident had been caused only due to the fault of the driver of the lorry belonging to the
first respondent. Further the Tribunal, on considering the legal opinion given in 2002 ACJ
Page 407, 2001 ACJ Page 428 and 2002 ACJ Page 1571 in Para No.7, held the first and
second respondents liable to pay the compensation to the petitioners and dismissed the
claim as against the third and fourth respondents.
        15. Further, the respondents had contended that as the deceased had died at the
time of his employment, the petitioners claim was valid only when it was made under the
Workmen Compensation Rules and not valid under the Motor Accident Claims Tribunal.
This contention was rejected by the Tribunal citing judgment of cases in 2004 (2) LW Page-
95, Madras High Court, Md. Haneffa v. United India Insurance Company Ltd., and 2000 (3)
SC 698, Rula Devi and another v. New India Assurance Company Ltd.
        16. The Tribunal, on examination of Ex.P-5, the driving licence of the deceased van
driver, came to the conclusion that the deceased was a driver before the said accident. The
P.W.1 has also stated the same in her evidence. Further, on examination of Ex.P-4, the
Legal Heirship Certificate issued by the Tahsildar, Palladam, decided that the petitioners
are the legal heirs of the deceased. Further, in the petition, it has been claimed that the
deceased was aged about 38 years and a driver and earning a sum of Rs.7,000/- per
month. This was also confirmed on scrutiny of the counter of the fourth respondent.
Further, the P.W.2, in his evidence has stated that he knew that the deceased was
employed as a van driver under one Eswaran and that he was earning a sum of Rs.5,000/-
per month as he had personally seen this when the petitioner received salary. The Tribunal,
also considered the fact that the drivers, at that time, at Palladam and Tiruppur were
earning a monthly salary of Rs.5,000/-. But, the owner of the van i.e. the employer of the
deceased did not come forward to give evidence on the income of the deceased. As such,
the Tribunal considered that the salary of the deceased could be taken as Rs.4,000/- per
month. As no evidence, has been put forth to prove that the petitioner had also earned
money being an agriculturist, the Tribunal decided that no income could be taken under
this.
       17. Further, the Tribunal after considering the evidence of P.W.1 and after scrutiny of
the Ex.P-2 post-mortem report, decided that the age of the deceased was 38 years. There
was no contrary facts established by the respondents on this. So, the Tribunal took the age
of the deceased as 38 years. But, on the petitioners side, it was contended that the
appropriate multiplier should be selected only after taking into account the age of the first
petitioner (35 years), age of the second petitioner (14 years) and age of the third petitioner
(12 years) as well as the appropriate multiplier for the age of the deceased and has
referred a legal opinion expressed in 2002 ACJ Page 1166, in support of this argument.
Accordingly, the Tribunal after considering this, took the appropriate multiplier as 16.
       18. At this stage, the learned counsel appearing for the petitioners had argued that
the future prospects of the deceased should be considered before determining the
compensation to be paid to the petitioners and in support of this argument he has pointed
out rulings of the judgment made in cases as follows:
       1994 ACJ Page 1;
       1999 ACJ SC Page 1400;
       2002 ACJ Page 1601 Para 6;
       1996 ACJ Page 581;
       AIR 1998 SC Page 3036;
       1998 ACJ Page 920;
       2004 ACJ Page 222;
       The Tribunal, on consideration of the above said rulings, decided that it was in
consonance with the present case, and further considering that the salary earned by the
deceased at the time of the accident was Rs.4,000/- took his future enhanced income as
Rs.8,000/-. Taking the average of the salary at the time of the accident and the future
salary, the Tribunal held that the average salary, which the deceased would have earned
will be Rs.4,000/- + Rs.8,000 / 2 = Rs.6,000/- per month. As such, the Tribunal calculated
the loss of income to the petitioners due to the death of the deceased as Rs.6,000 x 12 x
16 x 2/3 = Rs.7,68,000/-.
       19. Further, the Tribunal awarded a sum of Rs.10,000/- to the first petitioner as
compensation for loss of consortium and a sum of Rs.10,000/- each to the first, second
and third petitioners as compensation for loss of love and affection. If awarded a
compensation of Rs.5,000/- for loss of love and affection to the fourth petitioner, the
mother of the deceased. For funeral expenses, it awarded a compensation of Rs.3,000/-.
In total, a sum of Rs.8,16,000/- was granted by the Tribunal as compensation. Further, it
directed the first and second respondents to pay the above said compensation and
dismissed the claim as against the third and fourth respondents.
       20. Further, 50% of the award granted was apportioned to be paid to the first
petitioner and the second and third petitioners were apportioned 20% each of the award
amount and the fourth petitioner was apportioned 10% of the award. It further directed the
first and second respondents to deposit the above said award with 9% interest from the
date of filing the petition to the till date of payment of compensation into the credit of the
M.C.O.P.No.1204 of 2000, on the file of the Motor Accidents Claims Tribunal, Additional
District Court and Fast Track Court No.V, Coimbatore at Tiruppur, within a period of one
month from the date of its order. Further, the award deposited in the Court should be
deposited in a Nationalised Bank for a period of three years and the interest on such
deposit can be withdrawn by the petitioners, once in six months. Further, the apportioned
award of the minors-second and third petitioners would have to be retained in the bank as
deposit till they attain the age of major. The petitioners were directed to pay the court-fee
for the award within a period of one month from the date of its order.
       21. The learned counsel appearing for the appellant has argued in his appeal that the
Tribunal has erred in considering monthly income of the deceased as Rs.6,000/- per month
without acceptable proof and only on the basis of the evidence given by the claimants.
Further, the multiplier adopted is high and the finding on negligence and quantum of
compensation is also erroneous. As such, the learned counsel appearing for the appellant
has prayed for setting aside the order.
       22. The learned counsel appearing for the respondent argued that the original claim
made i.e. Rs.15,00,000/- reasonable, but the Tribunal had awarded only a sum of
Rs.8,16,000/- with 9% interest only on the basis of oral and documentary evidence.
Further, the deceased was the only breadwinner of the family and all the four claimants
were depending on the income of the deceased. At the time of accident, the deceased was
aged about 38 years and his monthly salary was Rs.7,000/-. But, the Tribunal calculated
the future income and present income and the average of the both was taken as
Rs.6,000/- and then the compensation was calculated. So, the Tribunal had awarded a
sum of 7,68,000/- as compensation towards loss of income to the petitioners, which is
reasonable. The compensation awarded on other heads are also fair. As such, the Tribunal
order has been a well considered one, after trial. Supporting his case, the respondent
counsel pointed out a judgments in CDJ 1996 SC 418, Sarla Dixit v. Balwant Yadav, wherein
it has been mentioned as follows:
         “Deceased in the present case, as seen above, was earning gross salary of
         Rs.1,543/- per month. Rounding it up to figure of Rs.1,500/- and keeping in view
         all the future prospects which the deceased had in stable military service in the light
         of his brilliant academic record and performance in the military service spread over
         7 years, and also keeping in view the other imponderable like accidental death
         while discharging military duties and the hazards of military service, it will not be
         unreasonable to predicate that his gross monthly income would have shot up to at
         least double than what he was earning at the time of his death, i.e. up to Rs.3,000/-
         per month had he survived in life and had successfully completed his future military
         career till the time of superannuation. The average gross future monthly income at
         the time of death, namely, Rs.1,500/- per month to the maximum which he would
         have otherwise got had he not died a premature death, i.e. Rs.3,000/- per month
         and dividing that figure by two. Thus the average gross monthly income spread over
         his entire future career, had it been available, would work out to Rs.4,500/- divided
         by 2, i.e. Rs.2,200/-. Rs.2,200/- per month would have been the gross monthly
         average income available to the family of the deceased had he survived as a bread
         winner. From that gross monthly income at least 1/3rd will have to be deducted by
         way of his personal expenses and other liabilities like payment of income-tax etc.
         That would roughly work out of Rs.730/- per month but even taking a higher figure
         of Rs.750/- per month and deducting the same by way of average personal
         expenses of the deceased from the average gross earning of Rs.2,200/- per month
         balance of Rs.1,450/- which can be rounded up to Rs.1,500/- per month would
         have been the average amount available to the family of the deceased i.e. his
         dependents, namely appellants herein.”
        23. For the foregoing reasons, and on consideration of the facts and circumstances
of the case and arguments advanced by the learned counsels for their respective parties
and after going through citation cited by the learned counsel for the respondent, the Court
is of the view that the Tribunal‟s award, under the head of loss of earning, wherein he had
taken the average of the present and future salary and calculated the loss of earning, is
erroneous for the following reason. In the instant case, the deceased was a driver working
under a private individual and the employer had not been examined, so, his employment
cannot be considered to be a permanent one. As such, the citation, cited by the learned
counsel for the respondents is not applicable as in that case, the deceased was a captain in
the Indian Army. So, this Court considers that there is need for interference in the findings
of the Tribunal.
        24. This Court admits that the deceased was working as a driver as per Ex.P-5, which
is the driving licence of the deceased. There has been no proof regarding the income
earned by the deceased and the manner of employment cannot be said to be of a
permanent nature. Hence, the Court has come to a conclusion that the deceased‟s income
could be taken as Rs.4,000/- only and future prospects cannot be considered. As the
claimants are 4 in number, the Court considers that 1/4th of the income of the deceased
could be taken as his personal expenses and resultantly computes the compensation as
under.
        Rs.3,000 x 12 X 16 = Rs.5,76,000/-
        25. For consortium, the Court awards a sum of Rs.20,000/- instead of Rs.10,000/-
as awarded by Tribunal. The award of Rs.10,000/- given to the first petitioner for loss of
love and affection is set aside as not pertinent. The award of Rs.10,000/- each granted by
the Tribunal to the second and third petitioners for loss of love and affection is confirmed.
The fourth petitioner has been given an award of Rs.5,000/- for loss of love and affection,
by the Tribunal and this Court enhances this award to Rs.10,000/-. The Tribunal had
awarded a sum of Rs.3,000/- for funeral expenses. This Court enhances the same to
Rs.10,000/-.
        26. In effect, this Court has scaled down the award of Rs.8,16,000/- given by the
Tribunal to Rs.6,36,000/-, together with interest at the rate of 9% per annum from the date
of filing the claim petition to till the date of payment, which this Court feels is equitable, fair
and prudent too.
        27. This Court here by directs the appellant/United India Insurance Co. Ltd., to
deposit the award of Rs.6,36,000/- granted by this Court together with interest at the rate
of 9% per annum from the date of filing the petition to till date of payment into the credit of
the M.C.O.P.No.1204 of 2000, on the file of the Motor Accidents Claims Tribunal, Additional
District Court and Fast Track Court No.V, Coimbatore at Tiruppur, within a period of six
weeks from the date of receipt of this order. If the appellant has already deposited the
entire compensation with accrued interest and costs, the appellant/United India Insurance
Co. Ltd., is permitted to receive the balance amount from the Motor Accident Claims
Tribunal, in the manner known to law.
       28. In the result, the civil miscellaneous appeal is allowed in the above terms,
consequently the award passed in the M.C.O.P.No.1204 of 2000, on the file of the Motor
Accidents Claims Tribunal, Additional District Court and Fast Track Court No.V, Coimbatore
at Tiruppur, is modified. No costs.
                                                                           Appeal allowed.

                                  [2010 (1) T.N.C.J. 227 (Mad)]
                                      MADRAS HIGH COURT
BEFORE:
           C.S. KARNAN, J.
                             K. SIVALINGAM AND ANOTHER                          ...Appellants
                                             Versus
                         AMSA AND OTHERS                                       ...Respondents
    [C.M.A. No. 1866 of 2007 and M.P. No. 2 of 2007, decided on 16th December, 2009]
       Motor Vehicles Act, 1988—Section 173—Appeal against award and decree of M.A.C.T.
by the appellant—Deceased, a security guard was riding on his cycle—Two wheeler a „TVS
Suzuki‟ driven in rash and negligent manner, hit him—Resulted fatal injuries and
succumbed to the same—Legal heirs awarded compensation of Rs. 1,70,000/-—Taking his
income as Rs. 2,000/- instead of Rs. 3,000/- compensation considered at Rs. 1,70,000/-—
Awar-ded a sum of Rs. 10,000/- for loss of consortium—Rs. 10,000/- for loss of love and
affection—Rs. 5,000/- for medical expenses and Rs. 5,000/- for funeral expenses—In total
awarded Rs. 1,10,000/-.             (Paras 3, 4 and 24)
       Counsel.—Mr. S. Manohar, for the appellants; Mr. N. Nallappan, for the respondents.
                                           JUDGMENT
       C.S. KARNAN, J.—The above civil miscellaneous appeal has been filed by the
appellants/respondents against the Award and Decree, dated 28.11.2006, made in
M.C.O.P.No.570 of 2003, on the file of the Motor Accident Claims Tribunal (Chief Small
Causes Court), Madras, awarding a compensation of Rs.1,70,000/- with 7.5% interest per
annum from the date of filing the petition till the date of payment of the compensation.
       2. Aggrieved by the above said award, the appellants/respondents have preferred the
above appeal to set aside the order/award.
       3. The short facts of the case are as follows:
       On 24.8.2002, at about 8.00 a.m. when the deceased was riding on his cycle from
Maduravoyal Erikkarai to Maduravoyal Rationshop, a two wheeler „TVS Suzuki‟, bearing
registration No.TN20 H6815, driven in a rash and negligent manner, hit the deceased, as a
result of which the deceased sustained fatal injuries and succumbed to the same. The
respondents being the owner and insurer respectively, of the offending vehicle, are liable to
pay compensation to the petitioners with costs and interests.
       4. The deceased was aged about 60 years and was working as security guard at
Popular Hardwares, Erikkarai, Maduravoyal and was earning a sum of Rs.3,000/- per
month. After the said accident, the deceased had taken treatment at Kilpauk Medical
College and Hospital, Chennai-600 010, Sri Ramachandra Hospital, Porur and Government
General Hospital, Chennai and had taken treatment as in-patient from 24.8.2002 to
22.10.2003.
         5. The petitioners, who are the wife, daughters and son of the deceased had claimed
a compensation of Rs.3,00,000/- from the respondents, with interest and costs, under
Sections 163-A and 166 of the Motor Vehicles Act, 1988.
         6. The second respondent/the New India Assurance Co. Ltd., in its counter has
resisted the claim stating that the age, income and employment of the deceased are not
admitted. Further, the alleged injuries said to have been sustained by the deceased, the
medical treatment taken by him and the resultant death of deceased due to those alleged
injuries are not admitted. That the deceased died only after two months from the date of
accident shows that the deceased had not died due to injuries suffered in the accident.
Further, the manner of the accident as alleged in the claim petition was not admitted. It is
stated that the rider of the first respondent‟s Motorcycle rode the vehicle carefully and
cautiously on the Poonamallee High Road from west to east and at that time the deceased
suddenly crossed the said road with his cycle, without adhering to traffic rules and dashed
against the motorcycle, which had resulted in the alleged accident. The alleged accident
took place solely due to the negligence and fault on the part of the deceased and not
because of the rash and negligent riding on the part of the rider of the motorcycle.
         7. Further, the claim under various heads is excessive and hence the second
respondent has prayed for dismissal of the claim petition with costs.
         8. The first respondent, in his counter has resisted the claim stating that the rider of
the two-wheeler rode it in a careful and cautious manner and that the deceased had
suddenly crossed the road with a cycle and dashed against the motorcycle. The age,
employment and income of the deceased was also not admitted. The petitioners should
also prove that the deceased had been suffering from kidney failure, for a long time and as
the accident took place only due to rash and negligent act of the deceased, the owner and
rider of the motorcycle cannot be held liable to pay compensation to the petitioners. As
such, the first respondent had prayed for dismissal of the petition against him.
         9. The Motor Accident Claims Tribunal framed three issues for the consideration
namely:
       (i)     Whether the accident occurred due to the rash and negligent riding of the rider
               of the motorcycle bearing registration No.TN20 H6815?
      (ii)     Whether the death was caused due to the injuries sustained by him in the
               accident?
     (iii)     Whether the petitioners are entitled to claim compensation from the
               respondents? If so, what is the reasonable amount that can be awarded as
               compensation?
         10. It is alleged in the petition that on 24.8.2002, at about 8.00 a.m. the deceased
was riding his bicycle from Maduravoyal Erikkarai towards Maduravoyal Rationshop and at
that time, a two-wheeler „TVS Suzuki‟ bearing registration No.TN20 H6815, driven in a rash
and negligent manner, hit the deceased, as a result of which, the deceased sustained
injuries and succum-bed to those injuries. The petitioners are not the eye-witnesses. They
have examined one Kumar as P.W.2, who is alleged to have seen the accident, while he
was waiting for the bus in the Maduravoyal bus stop. According to him, he was standing in
the bus stop, which is situated opposite to the Maduravoyal rationshop. He has stated that
at about 8.00 a.m. in the bus stop, one bus came and stopped at the bus stand and a
motorcycle, which came behind the bus overtook the bus on its left side and in the process,
it knocked down the cyclist, who was waiting for the bus to pass on. He has further stated
that the cyclist sustained injuries on various parts of his body and he could not get up.
P.W.2 helped him and sent him to Kilpauk Medical College Hospital in an Auto. He has
stated that the accident occurred only due to the rash and negligent riding of the rider of
the motorcycle, who overtook the bus on its left side. The son of the deceased had lodged
the complaint on the same day. But, he is not an eye-witness. He had narrated the manner
of the accident on the information furnished to him by the witness, who saw the accident.
The oral testimony of P.W.2 coupled with the FIR clearly attributed negligence to the
motorcyclist and there is no contra evidence. The evidence clearly indicated that the cyclist
was waiting ahead of the bus to cross the road with his cycle and that the motorcycle,
which came on the wrong side of the bus, had knocked down the cyclist causing grievous
fatal injuries. As such, the Tribunal held that the accident occurred due to the rash and
negligent riding of the rider of the motorcycle.
        11. The petitioners are the wife and children of the deceased Kannan, who was 60
years old at the time of the accident. Immediately after the accident, the deceased was
admitted in the KMC Hospital, wherein he was given treatment and X‟rays were taken on
his Skull, Chest and Spinal. It is stated that Nephrologist opinion was obtained and he was
advised to undergo peritoneal dialysis. A reference is made in the discharge summary that
the patient was not willing for peritoneal dialysis in spite of repeated counselling. So, he
was discharged against medical advice. The wife of the deceased examined herself as
P.W.1 and has stated that due to the injuries sustained by him, his kidney was damaged
and after getting discharged from KMC Hospital and after two days, he was admitted at Sri
Ramachandra Medical College Hospital, Porur, on 2.9.2002. To prove the same, Ex.P-3 was
marked, which is the clinical progress notes issued by the Sri Ramachandra Medical
College, Hospital, Porur. It is noted that the patient was conscious, disoriented and was
having head injuries, frontal injuries and laceration. On his back, it is seen that the
deceased had undergone treatment for urine encophiopathy. As the patient was willing to
get himself admitted, he had been treated as out-patient only. Thereafter, on the same
day, he was admitted in Government General Hospital and was discharged on 23.9.2002. It
is noted in the history that the patient sustained injuries in the road traffic accident and
incidentally, the doctors treating him defected renal failure on 24.9.2002. Hence, it is clear
from all these documents that the deceased suffered renal failure only due to the injuries,
sustained by him in the accident. When he was discharged on 23.9.2002, he was advised
to attend the O.P. three days a week. According to the petitioner, after discharge from
Government General Hospital, he was in the house and died on 22.10.2002 due to the
renal failure. Hence, the documents in Ex.P-2 to Ex.P-4 clearly prove that the deceased died
only due to renal failure, which occurred to him as a result of injuries sustained by him on
his spine as well as on other parts of his body, in the road accident. Ex.P-5 is the death
certificate of the deceased.
        12. According to the claimants, the deceased was aged about 60 years and was
working as a Security Guard in Popular Hardwares and was earning a sum of Rs.3,000/- per
month. Except the oral testimony of P.W.1, there is no other evidence to prove the
employment and income of the deceased. Though he was aged about 60 years at the time
of the accident, it is common that aged persons could work as Watchman in any company
and hence the Tribunal held that it was possible for the deceased to have worked as a
Watchman in Popular Hardwards, Maduravoyal and earned a sum of Rs.3,000/- per month
as salary. Deducting 1/3rd share of this for personal expenses, the monthly contribution by
the deceased to his family was assessed at Rs.2,000/- and the yearly contribution
calculated as Rs.24,000/-.
        13. In the absence of any evidence to prove the age of the deceased, the Tribunal
considering that his age could be between 60 to 65 years, selected the multiplier of 5 for
assessing loss of pecuniary benefits to the petitioners. As such, the Tribunal assessed loss
of pecuniary benefits as Rs.24,000/- X 5 = Rs.1,20,000/- and granted the same as award
to the petitioners under the said head. The Tribunal granted a sum of Rs.20,000/- towards
loss of consortium and a sum of Rs.25,000/- towards loss of love and affection and loss of
expectation of life and also awarded a sum of Rs.5,000/- towards funeral expenses. In
total, the Tribunal granted a sum of Rs.1,70,000/- as compensation to the petitioners.
        14. In the result, the Tribunal directed the first and second respondents to pay the
above said award amount jointly and severally with an interest at the rate of 7.5% per
annum from the date of filing the petition till the date of deposit with proportionate cost.
The apportioned share of the award to the first petitioner was Rs.1,00,000/- with
proportionate interest and the apportioned share of award to the 2nd, 3rd and 4th
petitioners was Rs.20,000/- each with proportionate interest. Further, the Tribunal, on
consideration of age of the first petitioner, permitted the first petitioner to withdraw her
apportioned share of award with interest, after appeal time. Court-fee for the award
amount was fixed at Rs.1072.50. Excess court-fees shall be refunded to the petitioners
after appeal time. Advocate fees was fixed at Rs.6,400/-.
        15. The learned counsel for the appellants in his appeal has contended that the
Tribunal had failed to appreciate the evidence that the deceased died due to the natural
causes and not due to the accident injuries and so was wrong in awarding a huge
compensation of Rs.1,70,000/-.
        16. The learned Tribunal failed to note that the deceased suffered only simple
injuries and that there was no abdominal injuries, related to injuries to both kidneys.
        17. The learned Tribunal without any medical experts evidence or medical record,
was wrong in holding that the deceased suffered renal failure only due to the accident
injuries.
        18. The learned Tribunal failed to note that the deceased was discharged on
24.9.2002 from the Government General Hospital and in spite of the Hospital doctors
advise to the deceased to attend O.P. for treatment regularly, there is not medical record to
show that the deceased was under medical care after 24.9.2002.
        19. The learned Tribunal failed to appreciate that even as per Ex.P-2, the alleged
Hospital O.P. Chit issued by Kilpauk Medical Hospital, the deceased was a known H.T.
(Hypertension) patient and that he was on regular consultation with Nephrologist and that it
was a known case of renal decease.
        20. The learned Tribunal failed to appreciate that there was clear suppression of
heath history of the deceased and that taking advantage of the accident on 24.8.2002, the
claimants have foisted a false case stating that the deceased suffered renal failure only
due to the accident injuries. The learned Tribunal failed to note that the deceased suffered
only Lacerations over the head and there was no spinal injury or abdominal injury or rupture
of kidneys or other grievous injuries capable of damaging the kidneys.
        21. As such, the learned Tribunal ought to have found that the deceased died not due
to the accident injuries, but only due to the natural causes namely renal failure suffered by
the claimant even prior to the accident.
        22. The learned counsel appearing for the appellants has therefore, contended that
the award and decree of the Motor Accident Claims Tribunal, dated 28.11.2006, in
M.C.O.P.No.570 of 2003 should be set aside.
        23. The learned counsel for the respondents argued that the said accident happened
on 24.8.2002. Hence, he sustained injuries and underwent treatment at Ramachandra
Medical College Hospital and that subsequently he was discharged, but, had undergone
treatment for injuries continuously. As the treatment was not successful, he had died. The
death of the claimant was caused only by injuries suffered in the accident.
        24. Considering the facts and circumstances of the case, at the time of the accident,
the age of the deceased was 60 years and he had been employed as a Security Guard. The
Tribunal awarded a sum of Rs.1,70,000/- to the claimants as compensation. The Court is
of the view that as the deceased had completed 60 years, the claimants 2nd, 3rd and 4th,
who are daughters and son of the deceased are not dependant on the income of the
deceased. Further, there is no crystal clear evidence to suggest the renal failure of the
deceased had been caused only due to the injuries suffered in the road accident. Likewise,
there are no strong reasons laid down by the appellant, either oral or documentary to refute
the above contention of the claimants. As such, the Court awards a sum of Rs.60,000/-
(taking into consideration of Rs.12,000/- as annual income and multiplies of 5) as loss of
pecuniary benefits to the claimants after deducting personal expenses of the deceased.
The Court awards a sum of Rs.10,000/- for loss of consortium to the first claimant and a
sum of Rs.10,000/- each to the 2nd, 3rd and 4th claimants for loss of love and affection.
This Court awards a sum of Rs.5,000/- for medical expenses and a sum of Rs.5,000/- for
funeral expenses. In total, this Court awards a sum of Rs.1,10,000/- as compensation. The
first claimant is apportioned a sum of Rs.65,000/- out of this award and the 2nd, 3rd and
4th claimants are apportioned a sum of Rs.15,000/- each out of this award together with
interest at the rate of 7.5% per annum from the date of filing the petition till the date of
payment. The Court considers this as equitable and fair.
        25. The learned counsel appearing for the appellant submitted that the entire
compensation amount has already been deposited into the credit of the M.C.O.P.No.570 of
2003, on the file of the Motor Accident Claims Tribunal (Chief Small Causes Court), Madras.
        26. As the accident happened in the year 2002, it is open to the claimants to
withdraw their apportioned award amount with accrued interest lying the credit of the
M.C.O.P.No.570 of 2003, on the file of the Motor Accident Claims Tribunal (Chief Small
Causes Court), Madras, by filing necessary payment out application in accordance with law.
Likewise, the appellant/New India Assurance Co. Ltd., is at liberty to withdraw the excess
compensation amount, which is lying in the credit of the M.C.O.P.No.570 of 2003, on the
file of the Motor Accident Claims Tribunal (Chief Small Causes Court), Madras, after
observing Court procedure.
        27. In the result, the civil miscellaneous appeal is partly allowed and the award and
decree passed by the Motor Accident Claims Tribunal, Chief Small Causes Court, Madras, is
modified. Consequently, connected miscellaneous petition is also closed. No costs.
                                                                         Appeal partly allowed.



                                  [2010 (1) T.N.C.J. 233 (Mad)]
                                      MADRAS HIGH COURT
BEFORE:
           R. BANUMATHI, J.
                              E. SIVA                                              ...Appellant
                                             Versus
                           E. NEELAPPA CHOWDARY AND OTHERS                         ...Respondents
                [Second Appeal No. 15 of 2007, decided on 7 December, 2009]
                                                                 th


        Civil Procedure Code, 1973—Section 100—Second appeal—Joint family property—
Partition—Will—Proof of—Lower appellate Court rightly held plaintiff entitled to 7/30 th share
in „C‟ and „D‟ schedule properties and ordered to decide future mesne profit—Conclusion of
lower appellate Court is well balanced and not suffer from any serious error warranting
interference.                                                   (Paras 10 and 26)
        Case law.—AIR 1954 SC 379; CDJ 2003 SC 780 : 2003 (10) SCC; AIR 1969 SC 1076;
AIR 1968 SC 1268; 1993 (2) MLJ 613; 1953 (2) MLJ 459; AIR 1961 SC 1268 : 1962 (2)
MLJ 154 (SC) : 1962 SCJ 589 : 1961 (2) SCR 779 : 1962 (2) ANWR 154 (SC)—referred.
        Counsel.—Mr. N. Rosi Naidu, for the appellant; Mr. Srinath Sridevan, for the R 1, No
appearance, for R2 to R6, for the respondents.
                                          Important point
        In a suit for partition, a party can claim that particular item of property is a joint
family property and the burden of proof lies on the party who asserting it.
                                              JUDGMENT
        R. BANUMATHI, J.—Second Appeal arises out of judgment in A.S.No.40 of 2001
reversing judgment of the trial Court in O.S.No.551 of 1991 and thereby passing a
preliminary decree for partition. Unsuccessful second defendant is the appellant. For
convenience, parties are referred to in their original rank in the suit.
        2. Ellappa Chowdary was the only son of Vannappa Chowdary. Plaintiff, defendants 1
to 3, 5 and 6 are sons and daughters of Ellappa Chowdary. After life time of Vannappa
Chowdary, Ellappa Chowdary inherited suit „A‟ and „B‟ schedule properties from his father.
        3. Case of plaintiff is that properties set out in schedule „A‟, „B‟ and „D‟ properties
mentioned in the plaint belonged to their grand father Vannappa Chowdary, who died
intestate and all properties devolved upon his only son Ellappa Chowdary. Further case of
plaintiff is that during life time of their father Ellappa Chowdary, after meeting expenses of
family, he was having surplus income from „A‟ and „B‟ schedule properties. Out of the
amount saved, their father Ellappa Chowdary purchased „C‟ schedule property and „C‟
schedule property becomes joint Hindu Family Property and the plaintiff is entitled for his
share in plaint „A‟, „C‟ and „D‟ schedule properties. To that effect, plaintiff had also issued a
legal notice Ex.A4 (18.7.1979) demanding partition and father Ellappa Chowdary sent a
reply Ex.A7 (25.7.1979) alleging that ancestral properties were sold to third parties for
discharging debts. Hence plaintiff filed suit in O.S.No.551 of 1991 for partition.
        4. Second defendant filed written statement and the same was adopted by
defendants 3, 4 and 6. In their written statement, defendants alleged that their father
Ellappa Chowdary executed Ex.B5 Will (6.11.1981) and allotted 0.94 acres in S.No.175/1
(„A‟ schedule property) to the plaintiff and hence question of partition does not arise as far
as „A‟ schedule property is concerned. Defendants further averred that in Ex.B5 Will, father
Ellappa Chowdary allotted share in „D‟ schedule property-house property in favour of
plaintiff and hence plaintiff is not entitled for partition in „D‟ schedule property also. Insofar
as „C‟ schedule property is concerned, second defendant stated that „C‟ schedule property
was acquired by father Ellappa Chowdary out of his own earnings and hence it became the
self acquired property of their father Ellappa Chowdary and that he could deal with this
property on his own. It was further averred that „C‟ schedule property (except Item Nos.2
and 7) was settled in favour of defendants under Exs.B2 to B4 settlement deeds
(6.12.1977) and therefore plaintiff is not entitled to claim partition.
       5. On the above pleadings, in the trial Court 16 issues were framed. To substantiate
plaintiff‟s claim, plaintiff examined himself as P.W.1, his brother-in-law as P.W.2 and
marked Exs.A1 to A8. On the side of defendants, Exs.B1 to B17 were marked and D.Ws.1
and 2 were examined. Upon consideration of oral and documentary evidence, trial Court
held that under Ex.B5 Will (6.11.1981), Ellappa Chowdary allotted 0.94 acres in „A‟
schedule property to the plaintiff. Insofar as „B‟ schedule property is concerned, trial Court
held that it was sold by Ellappa Chowdary during his life time to meet family expenses and
discharge debts and hence „B‟ schedule property was not available for partition. Insofar as
„C‟ schedule property is concerned, trial Court held that plaintiff has not produced
documents to show that Ellappa Chowdary had surplus income to purchase „C‟ schedule
property. It was further held that „C‟ schedule property was self acquired property of
Ellappa Chowdary and therefore plaintiff has no right to claim partition in „C‟ schedule
property. Trial Court mainly pointed out that Exs.B2 to B4 settlement deeds were executed
as early as in 1977, ten years prior to filing of suits and one of the beneficiaries having
settled his share in the year 1985, plaintiff has no right to claim partition. Insofar as „D‟
schedule property also, trial Court held that plaintiff is not entitled to claim partition.
Holding that plaintiff is not entitled for share in „A‟, „C‟ and „D‟ schedule properties, trial
Court dismissed the suit.
       6. Being aggrieved by the dismissal of the suit, plaintiff filed A.S.No.40 of 2001.
Lower appellate Court held that defendants failed to adduce sufficient evidence to prove
that Ellappa Chowdary purchased „C‟ schedule property out of self earnings and drew
presumption that „C‟ schedule property purchased in the name of Ellappa Chowdary was
also joint family property. Finding that ancestral properties cannot be settled, lower
appellate Court held that Exs.B2 to B4 are not valid in the eye of law. Holding that Ex.B5
Will (6.11.1981) was not proved through attesting witnesses, lower appellate Court held
since there was exchange of notices for partition, defence plea of prior partition cannot
stand scrutiny. Reversing findings of trial Court, lower appellate Court held that plaintiff is
entitled to 7/30 share in „A‟ „C‟ and „D‟ schedule properties and passed a preliminary
decree for partition. Lower appellate Court also held that plaintiff is entitled for a sum of
Rs.12,600/- towards the share of three years‟ income from the suit properties and directed
that future income shall be ascertained under Order 20, Rule 12 of Civil Procedure Code.
       7. Being aggrieved by reversal judgment of the lower appellate Court, second
defendant has filed this second appeal. At the time of admission, the following substantial
questions of law were formulated for consideration:
           “1. Whether the plaintiff‟s admission with respect to individual status of the „C‟
                 schedule property is to be negatived so that there is a nucleus with the other
                 property which are joint family property?
            2. Whether the first appellate Court is right in presuming that as there is proof
                 of existence of joint family property of the properties purchased, hence this
                 „C‟ schedule property would have been purchased from the income of the
                 joint family property?
            3. Whether the first appellate Court is right in negativing the Will on the ground
                 that the attesting witnesses had not been examined to prove the Will and
                 when particularly the plaintiff had not denied the execution of the Will and
                 had admitted the existence of the Will and further when the same was not
                 challenged specifically?”
       8. Learned counsel for appellant contended that lower appellate Court failed to note
that plaintiff has not discharged his burden by adducing documentary and oral evidence to
prove that „C‟ schedule property was purchased from out of sale proceeds of „B‟ schedule
property and surplus income from nucleus available. It was further contended that lower
appellate Court failed to note that P.Ws.1 and 2 have admitted that in respect of „A‟, „C‟ and
„D‟ schedule properties, they are in possession and enjoyment of the same, as allotted
under Ex.B5 Will (6.11.1981) and settlement deeds Exs.B2 to B4 (6.12.1977) and while so,
inference has to be drawn as to severance in status. It was further argued that after
issuance of notice under Ex.A4 (18.7.1979), the plaintiff did not insist for partition of
property and suit has been filed nearly after 12 years only to harass defendants.
       9. Learned counsel for first respondent/plaintiff submitted that onus of proving as to
whether „C‟ schedule property is ancestral property or self acquired property, is only on
defendants and defendants have not adduced any evidence to substantiate their defence
plea that „C‟ schedule property was self acquired property of Ellappa Chowdary. It was
further submitted that strong presumption in favour of jointness of the family, which was
not rebutted by the defendants, rightly taken into consideration by lower appellate Court,
which resulted in reversing the judgment of trial Court.
       10. Insofar as „A‟ schedule property is concerned, Ellappa Chowdary during his life
time executed Ex.B5 Will (6.11.1981) allotting 94 cents each to his wife Muniammal,
plaintiff and defendants 1 to 3. Admittedly, after filing of suit, plaintiff, mother Muniammal
and defendants 1 to 3 have sold „A‟ schedule property-Survey No.175/1-4.79 acres under
Ex.A8 sale deed (17.11.1994) in favour of one Ramu and therefore, „A‟ schedule property is
not available for partition.
       11. As far as „B‟ schedule property is concerned, Ellappa Chowdary himself had sold
out the said property to one Chempiammal during his life time to meet his family expenses
and discharge debts. Hence „B‟ schedule property is also not available for partition.
       12. With regard to „D‟ schedule - house property, father has made certain
arrangements under Ex.B5 Will (6.11.1981) and plaintiff and defendants 1 to 3 are said to
be residing in their respective portions of the house allotted to them.
       13. Case of plaintiff is that Ellappa Chowdary purchased „C‟ schedule property from
out of sale proceeds of „B‟ schedule property and income derived from „A‟ schedule
property. Case of defendants is that father Ellappa Chowdary acquired „C‟ schedule
property from out of his self earnings and settled in favour of defendants.
       14. In AIR 1954 SC 379 (Srinivas Krishnarao Kango v. Narayanan Devji Kango and
others), it was held that initial burden lies upon anyone, who asserts that any item of
property was joint family property. It is settled law that there is no presumption that any
property standing in the name of a kartha or a member of the joint family is joint family
property. The person, who wants to set up the case that the property purchased in the name
of the coparceners is that of the family, must plead and prove existence of joint family
nucleus with sufficient evidence.
       15. Placing reliance upon CDJ 2003 SC 780 : 2003 (10) SCC (D.S.Lakshmaiah v.
L.Balasubramanyam), learned counsel for appellant contended that plaintiff having failed to
discharge initial burden of establishing that there was any nucleus, there is no presumption
of a property being joint family property only on account of existence of a joint Hindu family.
It was further submitted that it was for the plaintiff, who asserts that „C‟ schedule property
as joint family property, to prove that the said property is a joint family property. The said
decision is in fact advantageous to the plaintiff. In paragraph 18 of the said judgment,
Supreme Court has held that the legal principle, therefore, is that there is no presumption
of a property being joint family property only on account of existence of a joint Hindu family.
The one who asserts has to prove that the property is a joint family property. If, however,
the person so asserting proves that there was nucleus with which the joint family property
could be acquired, there would be presumption of the property being joint and the onus
would shift on the person who claims it to be self-acquired property to prove that he
purchased the property with his own funds and not out of joint family nucleus that was
available.
        16. As held by the Supreme Court in AIR 1969 SC 1076 (Mudigowda Gowdappa
Sankh and others v. Ramchandra Revgowda Sankh (dead) by his Legal Rep. and another),
initial burden of proving that any particular property is joint family property, is, in the first
instance, upon the person who claims it to be so. But if the possession of a nucleus of the
joint family property is either admitted or proved, any acquisition made by a member of the
joint family is presumed to be joint family property. Only after proving adequate nucleus,
the onus shifts on the person, who claims the property as a self-acquisition to make out
that the property was acquired without aid from joint family property.
        17. In this case, admittedly, family had ancestral properties viz., „A‟ schedule property
in S.No.175/1 - 4.79 acres and „B‟ schedule property - 5.90 acres. As pointed out by lower
appellate Court, the avocation of the family is only agriculture. When the family had vast
extent of 10 acres of land, the presumption is that the family had sufficient nucleus.
        18. When family had sufficient nucleus, onus shifts to the defendants who claimed
that „C‟ schedule properties are self-acquired properties. Case of defendants is that „C‟
schedule properties were purchased by Ellappa Chowdary without any aid from family
nucleus. It was further argued that „B‟ schedule property was sold long back and therefore
sale proceeds could not have contributed for purchase of „C‟ schedule properties. Further
case of defendants is that Ellappa Chowdary purchased „C‟ schedule properties from out of
his own earnings by rearing milch animals and vending milk. Mere oral evidence would not
be sufficient to substantiate defence plea that „C‟ schedule properties are self-acquisition of
Ellappa Chowdary.
        19. Since Ellappa Chowdary was kartha of Hindu family, it is for him to prove by clear
and satisfactory evidence that the lands were acquired by him with his own separate funds
and not with the help of joint family funds of which he was in possession and management
as held by Supreme Court in AIR 1961 SC 1268 (Mallesappa v. Mallappa) and 1993(II) MLJ
613 (K.V.Duraisamy and another v. D.Perumalsamy (minor) and another). In such cases,
onus of proof must be placed on the Manager and not on the coparceners. No substantial
evidence is forthcoming from the defendants, who asserted that „C‟ schedule properties are
self-acquisition of Ellappa Chowdary. When existence of adequate nucleus has been proved,
lower appellate Court rightly held that „C‟ schedule properties as joint family properties.
        20. Subsequent conduct of parties would also establish that the parties treated the
properties as joint family properties. Ex.B1 (Ex.B12) sale agreement dated 6.4.1994 was
executed by plaintiff in favour of one Veerabhadra Chowdary. Later the same was cancelled
under Ex.B17 (26.11.1996). Under Ex.A8 sale deed (17.11.1994) all the members of the
joint family joined together to sell the property covered under Ex.B5 Will (6.11.1981)
indicating the jointness of members of the family.
        21. Item No.2 of „C‟ schedule properties was already sold to third parties. The said
sale deed was not produced to ascertain as to how the property was disposed of. As
pointed our earlier, under Exs.B2 to B4 settlement deeds (6.12.1977) Ellappa Chowdary
had executed three settlement deeds settling „C‟ schedule properties excepting Item Nos.2
and 6 in favour of defendants 1 to 4. Case of defendants is that pursuant to settlement
deeds, defendants are in possession and enjoyment of the respective properties settled in
their favour. Under Ex.B6 sale deed (13.2.1985), D1 sold Item No.5-Survey No.201/12 to
defendants 2 and 3.
       22. „C‟ schedule properties being joint family properties, the Manager has no
absolute power of disposal over joint Hindu family property. Father or kartha of joint family
can execute a gift for pious purpose if it is within reasonable limits considering importance
of property gifted. „C‟ schedule properties being joint family properties, Ellappa Chowdary-
Manager of joint family property had no absolute power to execute settlement deeds in
favour of defendants 1 to 4. It is well settled that Hindu father has no power to gift away
joint family property. In 1953 (II) MLJ 459 (Rathnasabapathi Pillai v. Saraswathi Ammal), it
was held as follows:
         “It is now well-established that a Hindu father has no power to gift away ancestral
         and joint family property in part or in whole except for the special purposes laid
         down in the text, which are limited and circumscribed and that too of small portions
         of movable property, mostly to discharge a necessary moral obligation cast on a
         Hindu father or manager of the family. A gift otherwise, is void in its inception and a
         document evidencing such as gift does not convey any interest to the donee.
         Though a gift of coparcenary property is not as such recognised even if it is by the
         entire body of coparceners, a transaction evidencing the gift of ancestral property to
         which all the coparceners were parties cannot, however, be attacked as void in toto
         as all the coparceners that claim to have an interest in the property must be
         deemed to be parties to the gift and the gift does not become invalid as the interest
         of any other person is not affected by such a transaction. Hence a gift made with
         the consent of all the coparceners, where there is no minor or child in the womb,
         could not be attacked as being void in toto. The question whether such an alienation
         is open to interdiction by a person affected by such a gift, as for instance, a wife or
         other maintenance holder depends on the nature of interest of the maintenance
         holder. A widow under the Hindu Law, even as modified by the Hindu Women‟s
         Right to Property Act, 1937, is not a coparcener though she is entitled to claim the
         interest of her deceased husband in the joint family property. Hence she cannot
         question an alienation by way of gift of joint family property by the entire body of
         coparceners.
       In K.V.Duraisamy and another v. D.Perumalsamy (minor) and another, 1993 (II) MLJ
613, it was held as follows:
         “It is quite evident that there was some joint family nucleus with the aid of which
         the first appellant started arecanut trade and derived income therefrom. Since he
         was the manager of the family at the time of acquisition of the lands, as it has been
         laid down by the Supreme Court in Mallesappa v. Mallappa, AIR 1961 SC 1268 :
         (1962) 2 MLJ (SC) 154 : 1962 SCJ 589 : (1961) 2 SCR779 : (1962) 2 An WR (SC)
         154, it is for him to prove by clear and satisfactory evidence that the lands were
         acquired by him with his own separate funds and not with the help of joint family
         funds of which he was in possession and charge. The onus of proof must, in such a
         case, be placed on the manager and not on the coparceners”.
       Having regard to the above, lower appellate Court rightly held that Exs.B2 to B4 are
not valid documents in the eye of law.
       23. Trial Court dismissed plaintiff‟s suit mainly on the ground that after issuance of
Ex.A4 notice (18.7.1979), plaintiff did not pursue the matter for quite some time. Trial
court has also pointed out that under Ex.B6 sale deed (13.2.1985) D1 sold item No.5-
Survey No.201/12 to defendants 2 and 3 and plaintiff did not raise any protest indicating
waiver of his right for partition.
       24. In a suit for partition, a party can claim that a particular item of property is a joint
family property and the burden of proof lies on the party who asserting it. It is apparent
from the evidence that after issuance of Ex.A4 notice in 1979, members of joint family had
jointly sold „A‟ schedule property under Ex.A8 sale deed (17.11.1994). Ex.A8 is a strong
circumstance indicating continued jointness of the family and therefore, trial Court was not
right in saying that plaintiff is to be non-suited because of delayed filing of suit for partition.
       25. In paragraph 23 of its judgment, lower appellate Court has arrived at the
conclusion that the plaintiff is entitled to 7/30th share in „C‟ and „D‟ schedule properties.
„D‟ schedule property is a house property and pursuant to the settlement/arrangement
under Ex.B5 Will, plaintiff and defendants are in possession of their respective portions in
„D‟ schedule house property. While effecting final decree insofar as „D‟ schedule property is
concerned, equity to be worked out in allotting respective portions to the respective sharers
as far as practicable. Insofar as „C‟ schedule properties are concerned, as discussed earlier,
item Nos.2 and 7 are not available for partition. Insofar as other items of „C‟ schedule
properties are concerned, while effecting final decree equity to be worked out in allotting
respective portions to the respective sharers. Insofar as mesne profits are concerned, lower
appellate Court has ordered future mense profits has to be decided through the enquiry
under Order 20, Rule 12 of Civil Procedure Code.
       26. In the light of well settled principles, upon analysis of evidence and materials on
record, lower appellate Court rightly held that „C and D‟ schedule properties are the joint
family properties and arrived at the conclusion that plaintiff is entitled to 7/30th share.
Conclusion of lower appellate Court is well balanced and does not suffer from any serious
error warranting interference exercising jurisdiction under Section 100 of Civil Procedure
Code.
       27. In the result, the judgment of lower appellate Court in A.S.No.41 of 2001 dated
18.11.2003 is confirmed and second appeal is dismissed. As pointed out earlier in
paragraph 25, in Schedule „C‟ (excepting item Nos.2 and 7), equities are to be worked out
as far as practicable while passing final decree. No costs. Consequently, M.P.No.1 of 2007
is also dismissed.
                                                                               Appeal dismissed.

                                 [2010 (1) T.N.C.J. 241 (Mad)]
                                     MADRAS HIGH COURT
BEFORE:
            M. VENUGOPAL, J.
                           A. VAIRAVEL                                                ...Petitioner
                                             Versus
                         N. SHANMUGHA GOUNDER                              ...Respondent
  [C.R.P. (NPD) No. 1469 of 2009 and M.P. No. 1 of 2009, decided on 24 October, 2009]
                                                                      th


      (A) Limitation Act, 1963—Section 5—Condonation of delay—Scope of—Court has to
adopt a purposeful and meaningful approach while dealing with Section 5 condonation
application.                        (Para 5)
      (B) Limitation Act, 1963—Section 5—Civil Procedure Code, 1908—Order 9, Rule 13—
Ex parte order—Delay of 829 days in moving application for setting aside order—Father of
petitioner expired—Mother a cancer patient under treatment in hospital—Wife a psychiatric
patient—Unmarried sister aged 45 years suffering from hypertension etc.—Sufficient and
adequate opportunities provided to petitioner to cross-examine plaintiff and petitioner not
utilised repeated opportunities made to cross-examine plaintiff—Held, looking from any
angle revision ascribed by petitioner not inspire confidence of Court—Hence, delay cannot
be condoned.                            (Para 6)
        Counsel.—M/s. V. Nicholas, for the petitioner; M/s. R. Subramanian, for the
respondent.
                                             JUDGMENT
        M. VENUGOPAL, J.—The petitioner/defendant has filed this civil revision petition as
against the order dated 31.1.2009 in I.A.No.414 of 2008 in O.S.No.836 of 2004 passed by
the learned Additional District and Sessions Judge and Fast Track Court No.1, Coimbatore
in dismissing the application filed by the revision petitioner under Section 5 of the
Limitation Act praying to condone the delay of 829 days in filing an application to set aside
the ex parte decree dated 18.7.2006 passed in the suit.
        2. The trial Court while passing orders in I.A.No.414 of 2008 has inter alia observed
that the revision petitioner has projected the Xerox copies of medical records to the
treatment meted out to his relatives and further the revision petitioner has not stated that
his health has been affected and, therefore, he has not been in a position to take proper
steps at the right time in regard to the conduct of case and as to why he has not filed the
originals of the Xerox copies of the medical records has not been made mention of by the
revision petitioner and except the reason that his relatives have taken medical treatment
no other reason has been ascribed in regard to the delay of 829 days and as a matter of
fact, the revision petitioner has not ascribed reasons for each and every day‟s delay and
resultantly dismissed the application.
        3. The learned counsel for the revision petitioner/defendant urges before this Court
that the trial Court has not taken into account of the fact that the father of the
petitioner/defendant has expired recently and his mother who is a cancer patient has been
under treatment in the Ramakrishna Hospital Coimbatore, and further that the revision
petitioner has an unmarried sister aged about 45 years and suffering from Hypertension
etc., and moreover the wife of the revision petitioner is a psychiatrist patient and as a male
member and kartha of the family he has been looking after the family and therefore he has
not been in a position to contact his counsel and attend to his case and added further, the
communication sent by his counsel has not reached the petitioner and therefore, he has
not attended the Court on 18.7.2006 and as a result, an ex parte decree has been passed
by the trial Court and in a suit for specific performance filed by the respondent/plaintiff the
revision petitioner/defendant has tangible and valid defence an opportunity to conduct the
case and a judgment copy rendered by the trial Court on merit and in any event the
reasoning of the trial Court in dismissing the application is an erroneous one both in Law
and on facts and therefore, prays for allowing the civil revision petition in the interest of
justice.
        4. Per contra the learned counsel for the respondent/decree holder submits that the
civil revision petitioner/defendant has not appeared before the trial Court on numerous
occasions and the revision petition/defendant has been giving ample opportunities to
cross-examine the respondent/plaintiff and in fact the respondent/plaintiff has paid initially
a sum of Rs.3,00,000/- to the revision petitioner/defendant as advance and later on
21.8.2003 an amount of Rs.2,50,000/- has been received and the remaining balance sale
consideration has been deposited in the Court on 9.8.2006 and in fact the revision
petitioner/defendant has not assigned cogent and proper reasons in regard to the
condonation of delay and therefore, prays for dismissing of the civil revision petition.
       5. This Court has heard the contentions advanced by both the counsels and noticed
the same. It is to be noted that a Court of law cannot adopt a pedantic approach. Instead it
has to adopt a purposeful and meaningful approach while dealing with the Section 5
condonation application. It is true that if Section 5 application under the Limitation Act is
allowed then the maximum thing that can happen is that the revision petitioner/defendant
can be allowed to take part in the conduct of the main case and the cause can be decided
on merits after providing opportunities to respective sides.
       6. As far as the present case is concerned the revision petitioner/defendant has
come out with a specific plea that his father has expired recently and his mother who is a
cancer patient has been under treatment in the Ramakrishna Hospital Coimbatore, and
counting her days, and has an unmarried sister aged about 45 years suffering from
Hypertension etc., and moreover the wife of the revision petitioner is a psychiatrist patient
and therefore as head of the family he has to look after the family welfare and as such he
has not contacted his counsel to attend to his case. But in the main case a proof affidavit
has been filed by the respondent/plaintiff and it is evident that numerous opportunities
have been given to the respondent/plaintiff to cross-examine the plaintiff side witness and
that has not been availed by the revision petitioner and therefore, the trial Court has been
left with no option but to pass an ex parte decree as early as on 19.7.2006. Therefore, it is
quite crystal clear that sufficient and adequate opportunities have been provided to the
revision petitioner/defendant to cross-examine the plaintiff/P.W.1 even though the revision
petitioner has come out with a plea that his family members have been suffering from
certain illness and moreover, his wife being a psychiatrist patient and that as a male
member and kartha of the family he has been looking after the family etc., yet this Court is
of the considered view that when the main case has been posted for cross-examination of
P.W.1 the revision petitioner/defendant has not utilised the repeated opportunities made to
cross-examine the P.W.1 and looking at from any angle the reasons ascribed by the revision
petitioner in his affidavit in I.A.No.414 of 2008 do not inspire the confidence of this Court in
regard to its acceptance and in short the revision petitioner has not made out a sufficient
and acceptable cause in regard to the condonation of delay of 829 days in projecting
I.A.No.414 of 2008 and ultimately the civil revision petition fails.
       7. 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.414 of 2008 is affirmed by this
Court for the reasons ascribed in this revision. Considering the facts and circumstances of
the case the parties are directed to bear their own costs in this revision. Consequently,
related M.P. No.1 of 2009 is closed.
                                                                             Revision dismissed.



                                 [2010 (1) T.N.C.J. 243 (Mad)]
                                     MADRAS HIGH COURT
BEFORE:
            M. VENUGOPAL, J.
                           SAKTHIVEL                                                 ...Petitioner
                                             Versus
                          PAIANISAMY                                               ...Respondent
 [C.R.P. (NPD) No. 3533 of 2009 and M.P. No. 1 of 2009, decided on 12th November, 2009]
       Civil Procedure Code, 1908—Order 26, Rule 9—Advocate Comm-issioner—
Appointment of—Suit posted for final argument—Hence, at this stage Advocate
Commissioner cannot be appointed—Trial Court directed to try suit on basis of oral and
documentary evidence.                            (Para 8)
       Counsel.—M/s. T. Bhuvaneswar, for the petitioner; M/s. N. Manokaran, for the
respondent.
                                             JUDGMENT
       M. VENUGOPAL, J.—The petitioner/plaintiff has filed this civil revision petition as against
the order dated 14.7.2009 in I.A.No.455 of 2009 in O.S.No.309 of 2007 passed by the
learned District Munsif, Tiruchencode in dismissing the application filed by the revision
petitioner under Order 26, Rule 9 of Civil Procedure Code, praying for an appointment of an
Advocate Commissioner to inspect the suit property and submit his additional report along
with plan.
       2. The trial Court while passing orders in I.A.No.455 of 2009 has inter alia opined
that earlier the Advocate Commissioner has been appointed for which no objection has
been filed and assigning the same reasons praying for reissuance of commission warrant
are not based on bona fide reasons and also that it has been projected to protract the legal
proceedings and resultantly, dismissed the application without costs.
       3. According to the learned counsel for the revision petitioner/plaintiff, the trial Court
has committed an error in dismissing the I.A.No.455 of 2009 filed by the petitioner praying
for reissuance of commission warrant and the said order is against law, weight of evidence
and materially irregular one which is liable to be set aside by this Court sitting in revision
and moreover, the trial Court without applying its mind the Court has observed that the
petitioner has not filed his objections to Commissioner‟s report and plan filed in I.A.No.971
of 2007 and added further, the trial Court has commenced the trial about a year ago but
the application for warrant has been projected belatedly and moreover, the trial Court has
not borne in mind of a simple fact that the present I.A.No.455 of 2009 has been filed for
measuring the revision petitioner and the earlier I.A.No.971 of 2007 has only been filed to
note down the suit Cart Track and in short, the relief prayed for in I.A.No.971 of 2007 and
I.A.No455 of 2009 are materially a different one, but unfortunately, these aspects of the
matter have not been appreciated by the trial Court in a proper perspective, and therefore,
prays for allowing the civil revision petition in the interest of justice.
       4. Per contra, the learned counsel for the respondent/defendant contends that the
revision petitioner/plaintiff has earlier projected I.A.No.971 of 2007 praying for the
appointment of an Advocate Commissioner to note down the suit Cart Track and the
revision petitioner/plaintiff has not filed any objection to the commissioner‟s report and
later the revision petitioner has projected the present I.A.No.455 of 2009 when the
evidence of the parties have been complete in the suit proceedings and when the suit has
been posted for arguments on 18.4.2009, and on 18.4.2009 the respondent/defendant
has been heard and the matter has been posted for hearing the respondent/defendant on
21.4.2009 and on 21.4.2009 when the main suit has been posted for arguments, at that
time the revision petitioner/plaintiff has filed I.A.No.455 of 2009 and the matter has been
further posted to 24.9.2009 for hearing of the arguments of the revision petitioner/plaintiff,
and that the trial Court has rightly dismissed the said application for the reasons assigned
thereto in the order and at this stage this Court may not interfere with the order passed by
the trial Court in I.A.No.455 of 2009 and prays for the dismissal of the civil revision petition.
       5. This Court has heard the arguments of learned counsel appearing for the parties
and noticed their contentions.
       6. Expatiating his arguments that an Advocate Commissioner can be appointed even
at a belated stage and when the ultimate goal and aim of the Court of Law is to do
complete justice to the parties, the procedural require-ments are only hand made of justice
and there is no embargo in law to project an application even at a time when the main suit
has been posted for arguments, he cites the decision of this Court A. Palaniappan v. K.
Nallasamy and others, 2008 (3) CTC 602, wherein it is inter alia held that “there is no
reason to deny relief of remitting warrant to same Commissioner.”
       7. It is to be pointed out that appointment of an Advocate Commissioner is within the
discretionary domain and power of a Court of Law and it is also true to state that exercise of
such power under Order 26, Rule 9 can be employed by a Court at any stage of a suit for
elucidating any matter in dispute/controversy. An important aspect that is to be taken note
of by a Court of Law is that it is not the object of Order 26, Rule 9 of the Civil Procedure
Code, to assist a party to collect evidence, where the party can get the evidence himself and
even as a matter of fact the Court can even exercise its power suo motu.
       8. As far as the present case is concerned it is not denied that earlier I.A.No.971 of
2007 has been filed by the revision petitioner/plaintiff for appointment of Commissioner to
measure the suit Cart Track and the petitioner has not filed any objections to the said
Commissioner‟s report admittedly. After the closure of the evidence of witnesses in the
case when the main suit has been posted for arguments on 18.4.2009 the
respondent/defendant has been heard and the matter has been posted for hearing the
respondent/defendant on 21.4.2009. Only on 21.4.2009 when the main suit has been
posted for arguments, at that time the revision petitioner/plaintiff has filed I.A.No.455 of
2009 praying for reissuance of Commission warrant. Though the applications projected by
the revision petitioner/plaintiff I.A.No.971 of 2007 and I.A.No.455 of 2009 are entirely
different and the reasons assigned in the I.A.No.455 of 2009 praying for reissuance of
warrant has nothing to do with the earlier I.A.No.971 of 2007 praying for appointment of an
Advocate Commissioner, when the matter is ready for arguments at that time the revision
petitioner has projected I.A.No.455 of 2009 praying for reissuance of Commission warrant
which is not to be entertained by Court of Law since the right accrued to the parties in a
given case cannot be sought to be displaced by means of a request for reissuance of
commission warrant. It is pertinent and desirable to dispose of the suit on considering the
material available oral and documentary evidence on record and after going through the
trial Court order in I.A.No.455 of 2009 dated 14.7.2009 this Court comes to the conclusion
that this civil revision petition is devoid of merits and resultantly the civil revision petition
fails.
       9. 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.455 of 2009 in O.S.No.309 of 2007
dated 14.7.2009 is confirmed by this Court for the reasons ascribed in this revision.
Considering the facts and circumstances of the case the parties are directed to bear their
own costs in this revision. Since in the main suit arguments of plaintiff side is to be heard
by the trial Court, the trial Court is directed to hear the revision petitioner/plaintiff side and
after hearing the reply of the respondent/defendant if any, it shall enter judgment in the
suit within a period of 3 weeks form the receipt of copy of this order and to report
compliance to this Court without fail. The parties are directed to lend a helping hand to the
trial Court in regard to the completion of the proceedings. Consequently, M.P.No.1 of 2009
is closed.
                                                                             Revision dismissed.
                                  [2010 (1) T.N.C.J. 246 (SC)]
                                       SUPREME COURT
BEFORE:
             MARKANDEY KATJU AND ASOK KUMAR GANGULY, JJ.
             RAVINDRA AND ASSOCIATES                                                  ...Appellant
                                            Versus
                           UNION OF INDIA                                         ...Respondent
                [Civil Appeal No. 2726 of 2004, decided on 21 October, 2009]
                                                               st


       Contract for construction of married accommodation—Completed by agreed date—
Dispute between parties—Arbitrator awarded a sum of Rs. 70,94,265 with simple interest
of 18%—High Court wrongly interfered with findings of Arbitrator—Held, appellant entitled to
interest @ 12%.
                                                                  (Paras 3, 6, 7, 9, 10 and 12)
       Case law.—1994 (6) SCC 485; 1995 (5) SCC 531; 2007 (9) SCC 503; 2009 (6) SCC
414; 2007 (2) SCC 453.
                                         Important point
       When Arbitrator‟s award is reasonable High Court‟s interference held to be wrong.
                                           JUDGMENT
       MARKANDEY KATJU, J.—Heard learned counsel for the parties.
       2. This appeal by special leave has been filed against the judgment and order dated
15.1.2003 of the High Court of Kerala at Ernakulam whereby the High Court has allowed
the appeal filed by the respondent herein against the order dated 9.10.1996 of the
Principal Sub-Judge, Kochi.
       3. It appears that the appellant was awarded a contract for construction of married
accommodation for petty officers of the Navy at Rameswaram, Kochi. The value of the work
awarded was Rs. 5,44,47,087/-. The work which commenced on 24.12.1990 had to be
completed by 23.6.1993 and admittedly it was completed by the said date.
       4. Disputes arose between the parties and the parties invoked the Arbitration clause
provided in the General Conditions of Contract. The claimant-appellant made claims under
25 heads. The Arbitrator awarded to the claimant a sum of Rs. 70,94,265/- and allowed
simple interest at the rate of 18% from the date of accrual for cause of action till date of
reference, from the date of reference till date of award and from the date of award till the
date of decree or date of payment whichever is earlier. An application by the appellant-
claimant was filed before the Principal Sub Judge, Kochi to make the award a Rule of the
Court. The respondent-Union of India also filed an application for setting aside the award of
the Arbitrator. The Sub-Judge allowed the application of the appellant and made it a Rule of
the Court, but awarded 12% interest on the amount awarded from the date of decree till
realization and dismissed the application of the respondent-Union of India. Aggrieved
against the order dated 9.10.1996 of the Sub-Judge, Kochi the respondent herein preferred
an appeal before the High Court which has been allowed by the impugned judgment and
order. Hence, the present appeal.
       5. In our opinion, the High Court wrongly interfered with the Arbitration award and
practically acted as a Court of Appeal, which it could not do [See : State of Rajasthan v. Puri
Construction Co. Ltd., (1994) 6 SCC 485; Trustees of Port of Madras v. Engineering
Construction Corporation Ltd., (1995) 5 SCC 531; EOC India Ltd. v. Bhagwati Oxygen Ltd.,
(2007) 9 SCC 503 and G. Ram Chandra Reddy & Company v. Union of India & Anr. (2009) 6
SCC 414].
       6. As regards the allegation that while in the contract mixture provided for in the
contract is M/15, but in fact, M/20 was used, it has been held by the Arbitrator that this
was done at the insistence of the Department. The Arbitrator also held that the relevant
drawing for M/15 mixture and the drawing relied upon by the respondent did not find place
in the list of drawings forming part of the tender documents. Hence, in our opinion, the High
Court has wrongly interfered with the findings of the Arbitrator as regards claim Nos. 1 and
9.
       7. As regards claim No. 10(b) relating to payment of over-time to labour it has been
contended by the learned counsel for the appellant that there was a delay in supply of
stores by the respondent and therefore the labour had to be retained for a longer period of
time than envisaged under the contract and hence overtime charges had to be paid to the
labour.
       8. In this connection, the learned counsel appearing for the respondent has relied
upon the decision of this Court in the case of Ramnath International Construction (P) Ltd. v.
Union of India, (2007) 2 SCC 453. We have gone through the said decision. In our opinion
that decision has no application to the case at hand as in that case the contractor sought
and obtained extension of time for execution of the contract whereas in the present case
neither extension of time was sought for, nor in fact, granted for completion of the contract.
Hence, the aforesaid decision is clearly distinguishable. Clause 11(c) of the General
Conditions of Contract has no application in this case at all.
       9. As regards Claim No. 12 relating to difference in price of wood frames for doors
and windows, it is stated that no doubt the contract provided for teak wood but it was
changed to second class hard-wood at the insistence of the Department. The High Court
has in this regard relied upon the decision of the Board of Officers who has made its
assessment by relying upon Clause 62(G) of the General Conditions of Contract which
provided that the decision of the Garrison Engineer would be final unless it was set aside in
appeal. In the present case, the price was not fixed by the Garrison Engineer at all.
Moreover, the Board of Officers had made an inquiry in the matter after three years and the
Arbitrator, in our opinion, rightly held that such an inquiry was of no consequence.
       10. As regards Claims No. 20 and 23 relating to escalation in prices of material, in
our opinion, the Arbitrator has given his findings of fact and the High Court misread Clause
18 of the Special Conditions of Contract.
       11. For the reasons given above, we are of the opinion that the High Court has
wrongly interfered with the Arbitration award. Accordingly, the appeal is allowed and the
impugned judgment and order is set aside.
       12. We may also point out that in para 12 of the judgment there appears to be a
typographical error inasmuch as the Principal Sub-Judge Kochi has reduced the interest
from 18% to 12% and not 10%, as wrongly recorded in the impugned judgment. We make
it clear that the appellant is entitled to interest @ 12%, as awarded by the Principal Sub-
Judge, Kochi. Appeal allowed. No order as to the costs.
                                                                               Appeal allowed.

								
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