TNCJ _1_2010-FebPar-2

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					                                             [2010 (1) T.N.C.J. 377 (Mad)]
                                                 MADRAS HIGH COURT

BEFORE:
                C.S. KARNAN, J.
                                      THE NEW INDIA INSURANCE COMPANY LTD.                                          …Appellant
                                                           Versus
                                                     MINOR VAITHEKI AND ANOTHER                                …Respondents
                            [C.M.A. No. 761 of 2005, decided in 5 January, 2010]  th


          Motor Vehicles Act, 1988—Section 173—Accident by collision of Corporation Bus and Lorry—Minor petitioner sustained grievous
injuriesinbonesofherrightleg,whichwasfracturedandshortenedandtwisted—Notabletowalkonherownanddependsonattendantsfor
doing any work—Treated in hospital as in-patient—Lorry driver held negligent—50% disability—Tribunal awarded Rs. 3,10,000/- as
compensationwith9%interestp.a.—Appealagainst—Held,awardgrantedundertheheadsnotpertinent—Marriageprospectsofthepetitioner
affected—Hence,compensationofRs.1,90,000/-with9%interestp.a.wouldbefairandequitable.
(Paras3to5,14and18to20)
          Case law.—2005 (5) CTC 745—referred.
          Counsel.—Mr. S. Ramalingam, for the appellant; Mr.D. Shivakumaran for, RI, N.A. for
R 2, 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 decree, dated 28.8.2003, made in
M.A.C.T.O.P.No.279 of 2002, on the file of the Motor Accident Claims Tribunal (Subordinate
Judge), Krishnagiri, awarding a compensation of Rs.3,10,000/- with 9% interest per annum,
from the date of filing petition till the date of payment of compensation.
          2. Aggrieved by the said award and decree, the appellant/second respondent, The
Branch Manager, The New India Assurance Company Ltd., Karaikkal, has filed the above
appeal praying to set aside the said award and decree.
          3. The short facts of the case are as follows:
          On 13.9.2001, the minor petitioner and her family members were travelling in the
Tamil Nadu Transport Corporation Bus bearing registration No.TN29 N1309, from Salem to
Bangalore to attend a function. When the said bus was coming in front of Milk Dairy at
Krishnagiri on Dharmapuri to Krishnagiri Main Road, the lorry bearing registration No.PY02
A5497 belonging to the first respondent and insured with the second respondent and
driven by its driver in a rash and negligent manner came in the opposite direction and
dashed against the Corporation Bus. Due to the impact, the minor petitioner sustained
grievous injuries in bones of her right leg, which were fractured. Due to that the minor
petitioner is unable to do any work. She needs assistance for every movement. Her right
leg is shortened and twisted. She is unable to walk on her own and depends on attendants
for doing any work.
          4. Immediately after the accident, she was admitted in the Government Hospital, at
Krishnagiri, and treated as in-patient. After discharge, she was taken to bone setting
Hospital at Nallampally. Her next best friend, her father has spent a sum of Rs.50,000/- for
her treatment so far. Further, she needs Rs.40,000/- for her future medical expenses.
          5. The accident was caused by the driver of the lorry bearing regis-tration No.PY02
A5497. As such, the first respondent, the owner, is vicariously liable to pay the
compensation to the minor petitioner. The second respondent, the insurer of the said lorry
is bound to indemnify the first respondent as per the policy of insurance. Hence, both the
respondents are jointly and severally liable to pay the compensation. As such, the next
friend of the minor petitioner has prayed for a compensation of Rs.7,00,000/- together with
interest at the rate of 15% per annum from the date of filing the petition till the date of
payment of compensation from the respondents under Section 166 of the Motor Vehicles
Act, 1988.
         6. Regarding the accident, a criminal case has been filed by the Krishnagiri Police
Station, Dharmapuri District, as Crime No.1142/2001, against the driver of the lorry under
Sections 279 and 337 of I.P.C.
         7. The second respondent in his counter has resisted the claim denying the manner
of the accident as alleged in the claim. He has contended that on 13.9.2001, at about 3.00
a.m. the vehicle bearing registration No.PY02 A5497 was proceeding near Milk Dairy on
Dharmapuri to Krishnagiri Main Road and driven by its driver slowly and cautiously and
observing all the rules of the road. At that time, the Tamil Nadu Transport Corporation Bus
bearing registration No.TN29 N1309, coming in the opposite direction and driven by its
driver at a great speed and without putting on dim and dip lights and dashed against the
lorry and as a result of the collusion, the minor petitioner travelling in the Corporation Bus
sustained very simple injuries. As such, the owner of the Corporation Bus should be
impleaded as a party to these proceedings for better appreciation of the claim and hence,
the respondent is not liable to pay any compensation to the petitioner.
         8. Further, the alleged injuries, alleged permanent disability and alleged age of the
petitioner was not admitted. Further, it has been submitted that the driver of the first
respondent‟s vehicle, bearing registration No.PY02 A5497, did not possess a valid driving
licence on the date of the accident. Further, it has been submitted that the claim is
excessive and so the second respondent has prayed for dismissal of the claim petition with
costs.
         9. The Motor Accident Claims Tribunal framed three issues for the consideration
namely:
       (i)    Who was responsible for the accident?
      (ii)    Is the petitioner entitled to receive compensation?
     (iii)    To what other relief is the petitioner entitled to get?
         10. On the petitioner‟s side, two witnesses were examined as P.W.1 and P.W.2 and
six documents were marked as Exs.P1 to P6. On the respondents‟ side, no witnesses were
examined and no documents were marked. On the petitioner‟s side, the father of the minor
petitioner on being examined as P.W.1 has adduced evidence that on the date of the
accident, the minor petitioner was aged about 5 years and that he, his wife and the minor
petitioner were travelling in the said Tamil Nadu State Transport Bus and when it was
nearing the Milk Dairy at Krishnagiri, the lorry coming on the opposite side at a great speed
and driven by its driver in a rash and negligent manner had dashed against the said Tamil
Nadu State Transport Bus. In the accident, seven passengers were injured and his minor
daughter suffered grievous injuries and she was taken to Krishnagiri Government Hospital
for treatment. He has further stated that the accident was caused only due to the rash and
negligent driving of the said lorry driver. In support of his claim, he has marked Ex.P1-FIR;
Ex.P2-Wound Certificate; Ex.P3-Copy of the Insurance Policy and Ex.P4-Medical Treatment
Summary issued at Nallampalli Hospital.
         11. The Tribunal on scrutiny of Ex.P1-FIR and after going through evidence of P.W.1
were of the view that the accident occurred only due to the rash and negligent driving by the
driver of the lorry. Further, the res-pondents had not countered the evidence of the
petitioner through examina-tion of witnesses or letting in of documentary proof to prove
otherwise. As such, the Tribunal held that the accident was caused only due to the rash and
negligent driving of the driver of the lorry and held that the second respondent, being the
insurer of the lorry is liable to pay the compensation to the petitioner.
       12. The P.W.1, in his evidence has adduced that his daughter had sustained grievous
injuries below her right knee and that her upper thigh bone had been fractured in the
accident; that he had taken her to Krishnagiri Government Hospital for treatment and that
subsequently she underwent Ayurvedic method of bone setting at Nallampalli; that
subsequent to this, his daughter also underwent treatment at a private hospital at
Kallakurichi; that she had been treated continuously for a period of six months; that in spite
of this she is not able to walk well and her leg has been shortened and twisted; and as such
she has sustained permanent disability.
       13. The Doctor, who had assessed the disability of the minor petitioner, was
examined as P.W.2. In his evidence, he has adduced that on 29.7.1993, he had examined
the minor petitioner; that he had found two bones below the right thigh of the girl had been
fractured and that even after treatment, the bones had not set properly and the thigh bones
are bent and her right knee has become bloated. Further, he has stated that the minor
petitioner has difficulty in stretching her leg and the bone is bent by 20 Degrees as a result
of which she would not be able to walk fast. He has further stated that this injury would be
detrimental for her future growth and as such had certified that the minor daughter of the
petitioner had sustained 50% disability and marked Ex.P5-Disability Certificate and Ex.P6-
X‟rays.
       14. As the Tribunal considered that the disability sustained by the minor petitioner
has been proved, it held that the second respondent is liable to pay compensation for the
disability suffered by the minor petitioner. The Tribunal awarded a sum of Rs.2,00,000/- to
the minor petitioner for disability and consequent loss of future income of the minor
petitioner; for pain and suffering, and mental agony suffered by her, the Tribunal awarded a
sum of Rs.1,00,000/-; for transport expenses the Tribunal awarded a sum of Rs.5,000/-
and for nutrition and medical expenses, the Tribunal awarded a sum of Rs.5,000/-. In total,
the Tribunal awarded a compensation of Rs.3,10,000/- to the minor petitioner and directed
the second respondent to deposit the above said award with interest at the rate of 9% per
annum from the date of filing the petition till the date of payment of compensation, into the
credit of the M.A.C.T.O.P.No.279 of 2002, on the file of the Motor Accident Claims Tribunal
(Subordinate Judge), Krishnagiri, within a period of one month from the date of its order.
Further, the Tribunal held that the said award granted is inclusive of any interim award
granted as relief to the minor petitioner. Further, after such deposit was made, the award
amount has to be invested in a Nationalised Bank for three years, as fixed deposit and the
petitioner was permitted to receive the interest on such deposit once in six months. The
petitioner was directed to pay court fee for the award amount within a period of one month
from the date of its order. The Advocate fees was fixed at Rs. 9,200/-.
       15. The learned counsel appearing for the appellant has contended in his appeal that
the Tribunal had not discussed the reasons for awarded a huge sum of Rs.2,00,000/-
towards loss of earning power and disability of 50%. It has been submitted that the injured
claimant was a minor aged about 5 years at the time of the accident and was not earning
anything. Further, it has been contended that the injured was treated by a Siddha Doctor
and the injured had not taken proper and best treatment available at her place and this had
resulted in 50% disability. Further, it was submitted that a sum of Rs.1,00,000/- granted
by the Tribunal towards pain and suffering is without any basis, as the claimant has not
proved by any documentary evidence that she had taken continuous treatment for injuries
sustained by her. As such, the learned counsel for the appellant has contended that the
award of Rs.3,10,000/- awarded by the Tribunal is arbitrary and excessive.
        16. The learned counsel for the appellant, in support of his case has cited a
Judgment made in 2005 (5) CTC 745, Madurai Bench of Madras High Court, M.Bhavathy v.
Thiruvalluvar Transport Corporation Limited, Pallavan Salai, Madras, rep.by its Managing
Director, the headline notes of “.......Claimant sustained injury in accident near her left knee
and her leg was broken—Consequently claimant‟s left leg was amputated below the knee—
She was unable to do house hold work—Claimant has to engage person to assist in her
house hold work by paying salary of Rs.400 per month—Claimant claimed compensation of
Rs.1,00,000/-—Tribunal awarded Rs.7,000 towards pain and suffering, Rs.3,000 for
nourishment and Rs.20,000 for permanent disability assessed 60% and thus awarded total
compensation of Rs.30,000/-—On appeal to High Court it was held that for non-earning
member doing house hold work, notional annual income is Rs.15,000/-—For 60% disability
Rs.60,000 has to be awarded—Compensation awarded should be a fair compensation, fair
both to victim and to tortfeasor—Quality of life had undergone diminishment and there is
continued economic loss because of need for assistance to do house hold work—It was held
that claimant is entitled to consolatory damages and compensation claimed at
Rs.1,00,000/- was held just and reasonable—Amount of compensation Rs.1,00,000/- was
directed to be paid with interest at 9% per annum from date of petition till date of
realisation.”
        17. The learned counsel for the respondents‟ argued that the injured person was
aged about 5 years at the time of the accident. She is a female child and due to this
accident, her physical condition has deteriorated. Her right leg thigh bone has been
fractured and the fractured bone has not set properly and hence there is deformity of her
legs. Further, the learned counsel for the respondents submitted that the length of injured
person leg has been reduced. She has become a handicapped person. So, her marriage
prospects have been reduced. As such, the award granted by the Tribunal is reasonable. In
future, also, she would not be able to regain her original strength. She is unable to continue
her education and she could not take part in any extra curricular activities. Considering all
these aspects, the Motor Accident Claims Tribunal awarded a sum of Rs.3,10,000/-
together with interest at the rate of 9% per annum, which is reasonable and fair.
        18. For the foregoing reasons, facts and circumstances of the case, arguments
advanced by the learned counsels for their respective parties, the Court is of the view that
the Tribunal awarded a sum of Rs.2,00,000/- for grievous injuries, distress and loss of
earning suffered by the petitioner. Further, the Tribunal had awarded a sum of
Rs.1,00,000/- as compensation towards pain and suffering undergone by the petitioner.
The Court opines that the award granted under the above heads are not pertinent. Hence,
the Court awards compensation as follows:
      (i)    Based on the Doctor‟s assessment of disability of the petitioner, as 50%, this
             Court awards Rs.1,00,000/- as compensation (1% disability carries Rs.2,000/-,
             as award as the injured is a minor aged about 5 years);
     (ii)    For pain and suffering undergone by the petitioner, the Court grants a sum of
             Rs.25,000/- as compensation;
    (iii)    For transportation expenses, the Court grants an award of Rs. 10,000/- and as
             such this award has been enhanced from the award of Rs.5,000/- granted by
             the Tribunal;
    (iv)     For medical expenses and nutrition, the Tribunal had awarded a sum of
             Rs.5,000/- under a single head. This Court awards a sum of Rs.10,000/- each
             as compensation under the heads of medical expenses and nutrition
             respectively (i.e., Rs.20,000/- in total).
        19. As the minor petitioner‟s marriage prospects have been affected, the Court
grants an award of Rs.20,000/- as non-pecuniary loss to the petitioner. For permanent
physical distress of the petitioner, the Court awards a sum of Rs.15,000/- as compensation
to the petitioner.
       20. This Court, in total awards a sum of Rs.1,90,000/- as compensa-tion to the
petitioner, together with interest at the rate of 9% per annum from the date of filing the
petition till the date of payment, as the Court considers this as fair and equitable in the
circumstances of the case.
       21. This Court directed the appellant to deposit the entire award amount and cost to
the credit of the M.A.C.T.O.P.No.279 of 2002, on the file of the Motor Accident Claims
Tribunal (Subordinate Judge), Krishnagiri, within a period of eight weeks. The said amount
has been deposited by the appellant. Subsequently, on 16.06.2006, this Court permitted
the petitioner to withdraw a sum of Rs.1,00,000/- on behalf of the minor injured petitioner.
       22. It is open to the petitioner to withdraw the balance compensation amount of a
sum of Rs.90,000/- with accrued interest for the total award amount from the date of filing
the compensation petition till the date of payment, by filing necessary payment out
application in accordance with law. The appellant is at liberty to withdraw the excess
compensation amount deposited by them, into the credit of the M.A.C.T.O.P.No.279 of
2002, on the file of the Motor Accident Claims Tribunal (Subordinate Judge), Krishnagiri,
after observing Court formalities.
       23. In the result, the above Civil Miscellaneous Appeal is partly allowed.
Consequently, the award and decree passed by the Subordinate Judge, Motor Accident
Claims Tribunal, Krishnagiri, in M.A.C.T.O.P.No.279 of 2002, is modified. No costs.
                                                                       Appeal partly allowed.



                                          [2010 (1) T.N.C.J. 383 (Mad)]
                                              MADRAS HIGH COURT
BEFORE:
               M. VENUGOPAL, J.
                                                                 E. RAMU AND OTHERS                        ...Petitioners
                                                         Versus
                                                                         E. KRISHNAN AND OTHERS …Respondents
   [C.R.P. (N.P.D.) No. 2293 of 2008 and M.P. No. 1 of 2008, decided on 5th January, 2010]
          CivilProcedureCode,1908—Order23,Rules3and4andSection151—Revisionpetitiontosetasideorderofprincipalsubordinate
Judge allowed—Compromise—Held, oral evidence on merits of the matter to be considered on question of compromise—Also Court to
examineprincipalSub-JudgeandAdditionalSub-JudgetoprovetheircasewhythesignatureofprincipalSub-Judgenotobtainedinthefinal
decree—MatterremittedbacktotrialCourttogiveacompletequietustothecontroversies.
(Paras52and53)
          Case law.—AIR 1954 SC 194 ; AIR 1976 AP 400 : CDJ Law Journal 2004 APHC 532 ;
AIR 1977 Mad 402 ; AIR 1985 Cal 379 ; AIR (37) 1950 Mad 728 ; AIR 1993 Del 365 ;
1993 (1) LW 209 ; 2007 (4) LW 139 ; 2008 (1) LW 1 ; 2000 (2) LW 826 ; AIR 2008 SC
1534 ; AIR 1995 Mad 42 ; AIR 2005 NOC 101 : 2004 (4) Andh LD 564 (DB) (AP) ; AIR 2003
SC 2686 ; AIR 1956 Bom 569 ; 1996 AIHC 3184 ; 1997 AIHC 3469 ; 1991 (2) MLJ 516 ;
1995 (2) MLJ 622 ; AIR 1991 SC 2234 ; 1995 AIHC 1348 ; 1998 (3) CTC 748 ; 1968 KLT 1
(FB) ; AIR 1989 P&H 324 ; AIR 1997 Bom 239 ; AIR (38) 1951 Ori. 313 ; AIR 2001 SC 457 ;
AIR 1993 Raj. 204—referred.
       Counsel.—Mr. M. Venkatachalapathy, Senior Counsel, for M/s. M. Sriram for the
petitioners; Mr. T. R. Mani, Senior Counsel for M/s. S. Kalyanaraman, for the respondent
No.1; for R 2 to 5, given up; for the respondents.
                                            JUDGMENT
       M. VENUGOPAL, J.—The Petitioners/Respondents 1 to 3/Plaintiffs have projected this
Civil Revision Petition as against the order dated 21.4.2008 in I.A.No.535 of 2007 in
O.S.No.275 of 1990 passed by the learned Principal Sub-Judge, Salem in allowing the
application filed by the 1st respondent/petitioner/4th plaintiff under Order 26, Rule 13
read with Order 23, Rule 3 and Section 151 of Civil Procedure Code praying to set aside the
Compromise Decree passed in I.A.No.1519 of 1991 dated 17.12.1991 and consequently,
to pass a fresh decree.
       2. The trial Court while passing orders in I.A.No.535 of 2007 dated 21.4.2008 has
inter alia opined that „on the date when the learned Judge who has delivered the judgment,
has been in service and on that date, the learned Judge who has been on leave has signed
in the said judgment, which cannot be accepted and therefore, the Judgment delivered in
I.A.No.1519 of 1991 in O.S.No.275 of 1990 dated 17.12.1991 is not to be accepted‟ and
resultantly, set aside the final decree passed in I.A.No.1519 of 1991 dated 17.12.1991
based on the compromise application and allowed the I.A.No.535 of 2007 without costs.
       3. The learned counsel for the Revision Petitioners/Respondents 1 to 3/Plaintiffs
submits that the impugned order dated 21.4.2008 in I.A.No.535 of 2007 in I.A.No.1519 of
1991 in O.S.No.275 of 1990 passed by the learned Principal Sub-Judge, Salem in setting
aside the Compromise Decree passed on 17.12.1991 is contrary to law and amounts to an
improper exercise of jurisdiction resulting in miscarriage of justice and more over the trial
Court has set aside the Compromise Decree in an interlocutory application and that too
after nearly 17 years and as a matter of fact, the 1st respondent/4th plaintiff is a practising
Advocate at the time of Compromise Decree and in short, the whole approach of the trial
Court is a perverse one and added further, the 1st respondent/4th plaintiff has filed a suit
for the same relief and has withdrawn the same without getting leave or liberty to file the
present application.
       4. Continuning further, the learned counsel for the petitioners contends that mere
defects in the compromise petition cannot be a ground to annul the compromise and the
consequential decree passed in the earlier partition suit and the trial Court has committed
an error in brushing aside the statement placed before it that the 1st respondent/ 4th
plaintiff has adequately been compensated with the payment of Rs.5,00,000/- at the time
of compromise and all the more, the trial Court has exceeded its jurisdiction in making an
enquiry as to what transpired on the date of compromise/passing of final decree, even
though the application for setting aside the compromise petition itself is not maintainable
and when there is no solid allegation of fraud or proof of such an allegation, then the trial
Court ought not to have disturbed the Compromise/Final Decree passed in the year 1991
relating to a partition matter and further more, the reason ascribed by the trial Court that
there has been no signature and therefore, the learned Judge cannot deliver the Judgment,
by itself may not be factually correct, but these aspects of the matter have not been
considered by the trial Court in real perspective, which has resulted in serious hardship and
miscarriage of justice and therefore, prays for allowing the civil revision petition in
furtherance of substantial cause of justice.
       5. Expatiating his submissions, the learned counsel for the petitioners submits that in
the Agreement Document dated 1.11.1989 between the four sons of Elumalai Gounder viz.,
(1) E.Ramu (2) E.Gopal (3) E.Kannan (4) E.Krishnan and (5) daughter E.Jayalakshmi, the
properties allotted to the share of the 1st respondent/4th plaintiff are described in „D‟
Schedule and the item No.5 of the property in „D‟ Schedule in Survey No.5 in Block 9
measuring an extent of 3522 Sq.ft. of land belongs to Salem, Sevvaipettai, Sri Kanniga
Parameswari Devasthanam and the then learned Principal Sub-Judge, Salem,
Thiru.D.Dhandapani recorded the compromise and signed and later Thiru.P.Ramakrishnan,
learned Additional Sub-Judge, Salem has signed and in I.A.No.1519 of 1991 in O.S.No.275
of 1990, the compromise petition under Order 23, Rule 3/4 and Section 151 of Civil
Procedure Code filed by the revision petitioners 1 to 3 and the 1st respondent/ 4th plaintiff
before the learned Principal Sub-Judge, Salem, a plea has been made for treating the
compromise as a final decree to be passed and the I.A.No.1519 of 1991 dated 16.12.1991
and on that day, the parties have been present and they have admitted the terms of
compromise, etc. and on 16.12.1991, the Sheristadhar of the Court has been directed to
check up and put up as to the payment of court fees if any and on 17.12.1991 an
endorsement has been made by the Sheristadhar in I.A.No.1519 of 1991 to the effect that
“court fee of Rs.100/- has been paid by D1 for the share allotted to her as per the terms of
compromise is correct” and hence the learned Principal Sub-Judge, Salem has recorded the
compromise on 17.12.1991 and the 1st respondent/4th plaintiff has filed O.S.No.214 of
2002 on the file of learned Additional Sub-Judge, Salem praying for a decree to be passed
declaring that the final decree passed in I.A.No.1519 of 1991 in O.S.No.275 of 1990 is
void, having been obtained by fraud at the instance of D1 to D3 therein for reopening of
partition and also seeking a direction for a fresh partition to be made in respect of first item
of properties barring the properties belonging to Sri Kanniga Parameswari Amman
Devasthanam into six equal shares and allot one such share to him separately with
possession by appointing a Commissioner to the effect to divide by metes and bounds etc.
and later on the suit has been dismissed as withdrawn on 13.11.2007 and more over
Thiru. P.Ramakrishnan, learned Additional Sub-Judge, Salem has signed the final decree on
17.12.1991 for learned Principal Sub-Judge, Salem in O.S.No.275 of 1990 which runs to
the following effect “I.A.1519/91 Compromise petition is recorded. D1 also paid court fee
of Rs.100/- for allotment of his share. Hence, final decree is passed in terms of said
compromise petition. No costs. Non-Judicial Stamp paper in four weeks” will not anyway
affect the final decree passed on 17.12.1991 and as a matter of fact, the compromise
recorded in I.A.No.1519 of 2009 in O.S.No.275 of 1990 dated 16.12.1991 has been signed
by a proper person (proper Judge) and the proceedings in O.S.No.275 of 1990 dated
17.12.1991 have been drawn in the name of Thiru D.Dhandapani, learned Principal Sub-
Judge, Salem and the signature obtained from Thiru. P.Ramakrishnan, learned Additional
Sub-Judge, Salem who has signed for learned Principal Sub-Judge, Salem is no legality and
the date of judgment has never been altered though the signature has been put
subsequently and in filing of I.A.No.535 of 2007, there is a bar in law because when the suit
O.S.No.214 of 2002 has been withdrawn earlier on 13.11.2007.
       6. Furthermore, the 1st respondent/4th plaintiff has not obtained the liberty of the
Court to file another interlocutory application and in law to set aside the Compromise
Decree/Consent Decree passed in O.S.No.275 of 1990 only a suit lies and a Compromise
Decree obtained by the parties cannot be set aside merely by way of filing of interlocutory
application and as per Order 23, Rule 3(A) of Civil Procedure Code evidence will have to be
recorded and the factual issues in whole cannot be decided in a summary manner.
       7. The learned counsel for the petitioners cites the decision of Honourable Supreme
Court Surendra Singh and others v. State of U.P., AIR 1954 SC 194, wherein it is observed
as follows:
        “As soon as the judgment is delivered, that becomes the operative pronouncement
        of the Court. The law then provides for the manner in which it is to be authenticated
        and made certain. The rules regarding this differ but they do not form the essence
        of the matter and if there is irregularity in carrying them out it is curable. Thus, if a
        judgment happens not to be signed and is inadvertently acted on and executed, the
        proceedings consequent on it would be valid because the judgment, if it can be
        shown to have been validly de-livered, would stand good despite defects in the
        mode of its subsequent authentication, AIR 1938 PC 292 (295), Ref.”
      He also further observed that:
        “A judgment is the final decision of the Court intimated to the parties and to the
        world at large by formal “pronouncement” or “delivery” in open Court. It is a judicial
        act which must be performed in a judicial way. The decision which is so pronounced
        or intimated must be a declaration of the mind of the Court as it is at the time of
        pronounce-ment. This is the first judicial act touching the judgment which the Court
        performs after the hearing. Everything else up till then is done out of Court and is
        not intended to be the operative act which sets all the consequences which follow
        on the judgment in page SC 195 motion. The final operative act is that which is
        formally declared in open Court with the intention of making it the operative
        decision of the Court. That is what constitutes the “judgment”
        Up to the moment the judgment is delivered Judges have the right to change their
        mind. Therefore, however much a draft judgment may have been signed before
        hand, it is nothing but a draft till formally delivered as the judgment of the Court. It
        follows that the Judge who “delivers” the judgment, or causes it to be delivered by a
        brother Judge, must be in existence as a member of the Court at the moment of
        delivery so that he can, if necessary, stop delivery and say that he has changed his
        mind. There is no need for him to be physically present in Court but he must be in a
        position to stop delivery and effect an alteration should there be any last minute
        change of mind on his part. 9 WR 1 (5, 13, 30) (FB), Appr. Where, therefore, of the
        two Judges of the High Court who hear an appeal in a criminal case, one purporting
        to write a joint judgment, prepares a judgment, signs it and sends it to the other
        Judge but before it is delivered, dies, then the judgment, if delivered by the other
        Judge, is not a valid judgment”.
      8. He also relies on the decision Puvvada Narasimhamurthy v. Gadi Satyavathi and
others, AIR 1976 AP 400, wherein it is observed thus:
        “Under Order 20, Rule 1 the Court after the case has been heard, shall pronounce
        judgment in open Court by dictation to Shorthand Writer, wherever it is permissible.
        It bears the date on which it is pronounced. The date of the judgment is never
        altered by the date on which the signature has been put subsequently. The date of
        the decree under Order 20, Rule 7, C.P.C. would also be the date on which the
        judgment was pronounced. It is therefore clear that under the C.P.C. stress is laid
        upon the pronouncement or delivery of the judgment as a judicial act, which has got
        legal effect. AIR 1966 All 221 (FB), Dissented from; AIR 1954 SC 194, Relied on.”
      9. On the side of the petitioners, attention of this Court is drawn to the decision
Ranga Reddy Associates & others v. K.Shapoor Chenai & others, CDJ Law Journal 2004
APHC 532 at paragraph 71, wherein it is observed hereunder:
        “Code of Civil Procedure, 1908 Order 23, Rule 2, Compromise Decree Opposition by
        one of the Defendants. The Court below has recorded the submission of the learned
        counsel for the first defendant that the counsel for the first defendant has orally
        opposed the compromise stating that the delay caused financial drain to him and
        now wants to have a fresh compromise taking the matter to the arbitration. The
        appellants have not chosen to file affidavit of the learned counsel. But, in view of
        Order 23, Rule 3 of CPC that once compromise takes place it has to be
        implemented unless there is a fraud. Since the allegation of fraud has not been
        attributed to the plaintiffs and considering the fact that the first defendant enjoyed
        the benefit, the opposition made by the first defendant to the compromise cannot
        be accepted. The Court below by taking all these factors into consideration decreed
        the suit in terms of compromise, which they filed in IA No.399 of 1999.”
       10. Added further, on the side of the petitioners reliance is placed on to the decision
of this Court Govindarajan and others v. K.A.N.Srinivasa Chetty and others, AIR 1977 Mad
402, wherein it is held as follows:
        “If a compromise was in fact arrived at though it may be voidable at the instance of
        one of the parties on the ground of fraud or misrepresentation, when the
        compromise is filed under Order 23, Rule 3 with a request to record the same by
        the opposite party, the Court could not go into the question of fraud or undue
        influence. The only ground on which the Court could refuse to record the
        compromise is on the ground that the compromise itself is opposed to public policy.
        Therefore the party could not be permitted to question the compromise on the
        ground of fraud or undue influence. The compromise could not also be questioned
        on the ground that the Advocate had executed the compromise on behalf of his
        client as the Advocate always has an implied authority to enter into a compromise
        on behalf of his client unless there is written prohibition or limitation. AIR 1950 Mad
        728 and (1976) 1 Mad LJ 136 and AIR 1975 SC 2202, Foll.”
       11. The learned counsel for the petitioners cites decision Gosto Behari Pramanik v.
Smt.Malati Sen and others, AIR 1985 Cal. 379 at page 380, wherein it is held that “a
Compromise Decree under Order 23, Rule 3 of Civil Procedure Code can only be set aside in
separate suit or proceedings on the ground that the consent has been obtained by fraud or
coercion and such consent or Compromise Decree resulted in serious and substantial
justice”.
       12. The learned counsel for the petitioners seeks in aid of the decision of this Court
Kuppuswami Reddi and another v. Pavanambal, AIR (37) 1950 Mad 728, wherein it is
observed as follows:
        “Under Order 23, Rule 3 of the Code compromise cannot be attacked by the
        allegations that it is a voidable compromise brought about by fraud, undue
        influence and duress. Provided the compromise is lawful, that is not contrary to law,
        the Court is obliged to record it. The mere fact that it may be voidable is no reason
        for a Court refusing to record it. A.I.R (23) 1936 Mad. 347 and A.I.R. (22) 1935
        All.137, Relied on.”
       13. Moreover, on the side of the petitioners reliance is placed on to the decision
Sh.Krishan Mohan Singh v. Sri Chand Gupta and others, AIR 1993 Del 365 at page 368,
wherein it is held as follows:
        “Learned counsel for the respondent has also argued that the com-promise has not
        been signed by Jaswant Singh and thus as all the parties have not signed the
        compromise, the same could not be given effect to. There is no merit in this
        contention. No adverse order was being made on the basis of the compromise
        against Jaaswant Singh, so even if Jaswant Singh, who was not contesting the
        matter, had not signed the compromise, it would not mean that the compromise
        cannot be enforced between the contesting parties.”
       14. Per contra, the learned counsel for the 1st respondent submits that (1st
respondent in this Civil Revision Petition) has figured as 4th plaintiff in O.S.No.275 of 1990
on the file of learned Principal Sub-Judge, Salem and in that suit a compromise has been
recorded and the four plaintiffs in O.S.No.275 of 1990 are sons of Elumalai Gounder and
the 2nd defendant one Amudha has not been married and the other younger sister has
been married and no property has been given to the eldest sister and defendants No.3 and
4 are said to have given up their rights in the property and they have taken Rs.25,000/-
each, but the date of document has been mentioned and the same has not been produced
before the trial Court and the 1st respondent has filed earlier the suit O.S.No.214 of 2002
on the file of learned Additional Sub-Judge, Salem praying for the relief of setting aside the
Compromise Decree in O.S.No.275 of 1990 on the file of learned Principal Sub-Judge,
Salem and after the amended Code of Civil Procedure, a suit to set aside the Compromise
Decree in O.S.No.275 of 1990 will not lie and only an interlocutory application will lie and
therefore, I.A.No.535 of 2007 has been filed by the 1st respondent/ 4th plaintiff before the
trial Court praying for the relief of setting aside the Compromise Decree.
       15. That apart, if there is a partition in the year 1998, as alleged, why the suit should
be filed in the year 1990 and the suit in O.S.No.275 of 1990 has been filed on 21.3.1990
and that a compromise application viz., I.A.No.1519 of 1991 has been filed by the four
plaintiffs in suit O.S.No.275 of 1990 and that on 17.12.1991, a Compromise Decree has
been passed and on 22.4.2002 O.S.No.214 of 2002 has been filed by the 1st respondent/
4th plaintiff praying for the relief of declaration that the final decree passed in I.A.No.1519
of 1991 in O.S.No.275 of 1990 is void, having been obtained by fraud at the instance of D1
to D3 etc. and later, the suit has been withdrawn and in the Compromise Decree in
O.S.No.275 of 1990 Thiru.T.R.Mani, learned counsel for the 1st defendant has not signed
but the 1st defendant has signed and the 2nd defendant Amudha who says that she does
not want properties, her lawyer has signed but D3 and D4 have not signed in the
compromise but D3 and D4 have been given up and in a suit for partition the concept of
giving up any party may not arise and giving up the parties is a make belief arrangement
and for relinquishment of properties release deed dated 14.11.1973 has not been
produced and a fraud has been played upon the trial Court and how can the learned
Additional Sub-Judge, Salem Thiru.P.Ramakrishnan can sign in the decree in O.S.No.275 of
1990 dated 17.12.1991 when the learned Judge who passed the judgment viz.,
Thiru.D.Dhandapani, learned Principal Sub-Judge, Salem has been very much present on
17.12.1991 and, therefore, Ex.R5 order dated 17.12.1991 in O.S.No.275 of 1990 is
shrouded on suspicion and in fact there cannot be a Decree without a judgment and Ex.R6
is the decree dated 17.12.1991 passed in O.S.No.275 of 1990 and though Ex.R5 decree in
O.S.No.275 of 1990 is in the name of Thiru.D.Dhandapani, learned Principal Sub-Judge,
Salem but on the reverse side of the decree Thiru. P. Ramakrishnan, learned Additional
Sub-Judge, Salem has signed for learned Principal Sub-Judge, Salem and on 17.12.1991,
admittedly, the learned Additional Sub-Judge, Salem Thiru.P.Ramakrishnan has been on
Casual Leave and Ex.R5 decree in O.S.No.275 of 1990 is a procured document, which has
been accepted by the trial Court and placing reliance on Ex.R5 decree in O.S.No.275 of
1990 dated 17.12.1991 will amount to fraud being played on a Court of law no one has
been examined on either side as witness in I.A.No.535 of 2007 in O.S.No.275 of 1990 on
the file of learned Principal Sub-Judge, Salem and on 17.12.1991 none other parties have
been present and only on 16.12.1991 parties have been present and also that learned
counsel for D2 has not signed in the compromise D4 and D5 have not signed and also their
lawyers have not signed and if there is a muchalika for partition then why a suit has to be
filed in O.S.No.275 of 1990 and indeed both Thiru.D.Dhandapani, learned Principal Sub-
Judge, Salem and Thiru. P. Ramakrishnan, learned Additional Sub-Judge, Salem have been
holding their respective offices, Order 20, Rule 8 of Civil Procedure Code speaks of
procedure when a learned Judge has vacated office.
       16. It is the further contention that in the instant case though a decree in O.S.No.275
of 1990 dated 17.12.1991 stands in the name of Thiru. D. Dhandapani, learned Principal
Sub-Judge, Salem but signed by the Thiru.P.Ramakrishnan, learned Additional Sub-Judge,
Salem for learned Principal Sub-Judge, Salem, the successor and that
Thiru.P.Ramakrishnan, learned Additional Sub-Judge, Salem cannot sign and
Thiru.P.Ramakrishnan, learned Additional Sub-Judge, Salem is not a successor to Thiru. D.
Dhanda-pani viz., the learned Principal Sub-Judge, Salem and when Thiru. P.
Ramakrishnan, learned Additional Sub-Judge, Salem has been on Casual Leave on
17.12.1991 as per the „A‟ Diary extract of the Additional Sub Court, Salem, he cannot sign
in the decree in Ex.R5, the decree in O.S.No.275 of 1990 and the same is not a valid one
and preceding a decree there must be a judgment and there is no judgment in the instant
case on 17.12.1991 in O.S.No.275 of 1990 and the 1st respondent has been duped and in
law a Decree cannot come first and further the present case is a classic example where a
learned Additional Sub-Judge, Salem Thiru.P.Ramakrishnan has not been present in Court
on 17.12.1991 (and that admittedly he has been on Casual Leave as seen from the „A‟
Diary extract and reposting of cases from 17.12.1991 to various dates), but unfortunately,
his signature has been obtained and therefore, the trial Court has looked into the matter in
threadbare and rightly allowed I.A.No.535 of 2007 on 21.4.2008 and the same need not be
disturbed by this Court to prevent an aberration of justice.
       17. The learned counsel for the 1st respondent cites the decision of Honourable
Supreme Court Banwari Lal v. Smt.Chando Devi (Through L.R.) and another, 1993 (1) LW
203 at page 209, wherein it is held as follows:
        “12. When the amending Act introduced a proviso along with an Explanation to
                  Rule 3 of Order 23 saying that where it is alleged by one party and denied by
                  other that an adjustment or satisfaction has been arrived at, “the Court shall
                  decide the question”, the Court before which a petition of compro-mise is
                  filed and which has recorded such compromise, has to decide the question
                  whether an adjustment or satisfaction had been arrived at on basis of any
                  lawful agreement. To make the enquiry in respect of validity of the
                  agreement or the compromise more comprehensive, the Explanation to the
                  Proviso says that an agreement or compromise “which is void or voidable
                  under the Indian Contract Act....” shall not be deemed to be lawful within the
                  meaning of the said Rule. In view of the Proviso read with the Explanation,
                  a Court which had entertained the petition of compromise has to examine
                  whether the compromise was void or voidable under the Indian Contract Act.
                  Even Rule 1(m) of Order 43 has been deleted under which an appeal was
                  maintainable against an order recording a compromise. As such a party
                  challenging a compromise can file a petition under Proviso to Rule 3 of
                  Order 23, or an appeal under Section 96(1) of the Code, in which he can now
                  question the validity of the compromise in view of Rule 1-A of Order 43 of
                  the Code.
         13. The application for exercise of power under Proviso to Rule 3 of Order 23
                  can be labeled under Section 151 of the Code but when by the Amending
                  Act specifies that such power has been vested in the Court before which the
                  petition of compromise had been filed, the power in appropriate cases has
                  to be exercised under the said proviso to Rule 3. It has been held by
                  different High Courts that even after a com-promise has been recorded. The
                Court concerned can entertain an application under Section 151 of the
                Code, questioning the legality or validity of the compromise. Reference in
                this connection may be made to the cases.                     Smt.Tara Bai v.
                V.S.Krishnaswamy Rao, AIR 1985 Kant 270; S.G.Thimmappa v. T.Anantha,
                AIR 1986 Kant 1, Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh, AIR
                1958 Pat 618; Margal Mahton v. Behari Mahton, AIR 1964 Pat 483 and Sri
                Sri Iswar Gopal Jew v. Bhagwandas Shah, AIR 1982 Cal.12, where it has
                been held that application under Section 151 of the Code is maintainable.
                The Court before which it is alleged by one of the parties to the alleged
                compromise that no such compromise had been entered between the
                parties, (that Court) has to decide whether the agreement or com-promise in
                question was lawful and not void or voidable under the Indian Contract Act.
                If the agreement or the compromise itself is fraudulent then it shall be
                deemed to be void within the meaning of the Explanation to the Proviso to
                Rule 3 and as such not lawful. The learned Subordinate Judge was perfectly
                justified in entertaining the application filed on behalf of the appellant and
                considering the question as to whether there had been a lawful agreement
                or compromise on the basis of which the Court could have recorded such
                agreement or compromise on 27.2.1991. Having come to the conclusion
                on the material produced that the compromise was not lawful within the
                meaning of Rule 3, there was no option left except to recall that order.
         14. Accordingly the appeal is allowed. The order passed by the High Court is set
                aside. In the circumstances of the case, there shall be no order as to costs.”
      18. He also relies on the decision of the Honourable Supreme Court A.V.Papayya
Sastry & others v. Government of A.P. & others, 2007 (4) LW 139 at page 150, wherein in
paragraphs 21, 23, 24, 25 it is held as follows:
       „It is thus settled proposition of law that a judgment, decree or order obtained by
       playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of
       law. Such a judgment, decree or order by the first Court or by the final Court has to
       be treated as nullity by every Court, superior or inferior. It can be challenged in any
       Court, at any time, in appeal, revision, writ or even in collateral proceedings.
       In Duchess of Kingstone, Smith’s Leading Cases, 13th Edn., p.644, explaining the
       nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata
       and not impeachable from within, it might be impeachable from without. In other
       words, though it is not permissible to show that the Court was „mistaken‟, it might
       be shown that it was „misled‟. There is an essential distinction between mistake and
       trickery. The clear implication of the distinction is that an action to set aside a
       judgment cannot be brought on the ground that it has been decided wrongly,
       namely, that on the merits, the decision was one which should not have been
       rendered, but it can be set aside, if the Court was imposed upon or tricked into
       giving the judgment.
       It has been said; Fraud and justice never dwell together (fraud et jus nun-quam
       cohabitant); or fraud and deceit ought to benefit none (fraus et dolus nemini
       partocinari debent).
       Fraud may be defined as an act of deliberate deception with the design of securing
       some unfair or undeserved benefit by taking undue advantage of another. In fraud
       one gains at the loss of another. Even most solemn proceedings stand vitiated if
       they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all
       judicial acts, whether in rem or in personam. The principle of „finality of litigation‟
         cannot be stretched to the extent of an absurdity that it can be utilized as an engine
         of oppression by dishonest and fraudulent litigants.‟
      Also in the aforesaid judgment at paragraph 37 it is observed thus:
         „The above principle, however, is subject to exception of fraud. Once it is established
         that the order was obtained by a successful party by practising or playing fraud, it is
         vitiated. Such order cannot be held legal, valid or in consonance with law. It is non-
         existent and non est and cannot be allowed to stand. This is the fundamental
         principle of law and needs no further elaboration. Therefore, it has been said that a
         judgment, decree or order obtained by fraud has to be treated as nullity, whether by
         the Court of first instance or by the final Court. And it has to be treated as non est
         by every Court, superior or inferior.‟
      19. The learned counsel for the 1st respondent brings it to the attention of this Court,
the decision of the Honourable Supreme Court T.Vijendradas & another v. M.Subramanian &
others, 2008 (1) LW 1 at special page 12, wherein at paragraph 23 it is held hereunder:
         “We would assume that the Courts below proceeded on a wrong premise that Order
         21, Rule 92(4) is not attracted, but the question as regards fraud committed by the
         judgment-debtor has been gone into a great details. We are satisfied that the
         findings arrived at by the learned trial Judge and affirmed by the First Appellate
         Court also by the High Court are equitable. It is in a situation of this nature, we are
         of the opinion that this Court in exercise of its jurisdiction under Article 142 of the
         Constitution of India can pass an appropriate order with a view to do complete
         justice to the parties. [Chandra Singh v. State of Rajasthan & another, (2003) 6 SCC
         545; Oriental Insurance Co. Ltd. v. Brij Mohan & Ors., 2007 (7) Scale 753 para 14].
         Are the appellants bound by the decree?”
      20. Further, the learned counsel for the 1st respondent cites the decision Prema v.
K.V.Rami Reddy, 2000 (2) LW 826 at page 827, wherein it is among other things held as
follows:
         “it would be clear that on the date the judgment was stated to have been
         pronounced, the learned Judge had not given his decision on issues 4 and 5. May
         be, the decision on issues 1 to 3 will impinge on the decision under issues 4 and 5.
         The question is whether there had been a valid pronouncement of judgment on
         24.3.1999. It is under these circumstances, we have to examine the contentions of
         the learned senior counsel on either side... The question is whether in the instant
         case the judgment has been validly delivered. If it is a mere procedural irregularity
         in that the Judge concerned had not signed the judgment, then the judgment thus
         rendered cannot be invalidated. The mere fact that a major issue has been
         answered by the learned Judge in the judgment already dictated will not by itself
         lead to the conclusion that the judgment had been delivered.
         It has already been noticed that the learned Judge had not completed the judgment
         before he delivered his decision. It should be deemed that there is no judgment in
         the eye of law. He had not completed the judgment. There was no earthly reason
         why he should venture to give his decision. The least that he could have done was to
         reopen the case, complete the judgment and then pronounce the same. There was
         no particular hurry to deliver the judgment on the 24th. He had reserved orders on
         the 12th. He could have delivered the judgment on the 25th or even on 27th.
         Heavens were not going to fall. In as much as there was no judgment in the eye of
         law on the date he purported to pronounce the judgment, the judgment now
         available should be held to be no judgment at all. The Civil Revision Petition will
         stand allowed and the “judgment dated 24.3.1999” will stand set aside. The matter
         is remitted to the present 7th Assistant City Civil Judge, who will hear arguments
         afresh and give a decision.”
       21. The learned counsel for the 1st respondent cites the decision of Honourable
Supreme Court K.V.Rami Reddi v. Prema, AIR 2008 SC 1534 at Page 1535, wherein it is
held thus:
         “The declaration by a Judge of his intention of what his „judgment‟ is going to be, or
         a declaration of his intention of what final result it is going to embody, is not a
         judgment until he had crystallized his intentions into a formal shape and
         pronounced it in open Court as the final expression of his mind. Civil Procedure
         Code does not envisage the writing of a judgment after deciding the case by an oral
         judgment and it must not be resorted to and it would be against public policy to
         ascertain by evidence alone what the „judgment‟ of the Court was, where the final
         result was announced orally but the „judgment‟, as defined in the CPC embodying a
         concise statement of the case, the points for determination, the decision thereon
         and the reasons for such decision, was finalized later on. The mere fact that a
         major portion of the judgment has been already dictated, will not, by itself, lead to
         the conclusion that the judgment had been delivered.”
       22. Lastly, on the side of the 1st respondent, the decision of this Court Registrar,
Manonmaniam Sundaranar University v. Suhura Beevi Educational Trust and others, AIR
1995 Mad 42, is cited wherein it is observed as follows:
         “Though liberty may lie with the plaintiff in a suit to withdraw or abandon at any
         time after the institution of the suit, the whole of the suit or part of his claim, yet, it
         cannot be considered to be so absolute as to permit or encourage or ratify an abuse
         of process of Court or fraud to be played upon parties as well as Court. The so-called
         abandonment ought not to be a ruse to get rid of a party but yet to get the same
         relief prayed for earlier. The fact that the plaintiff is entitled to abandon or withdraw
         the suit or part of the claim by itself is no licence to the plaintiff to claim a right to
         do so to the detriment of the legitimate rights of a party-defendant behind its back
         and with ulterior motive and oblique purpose and Courts could not be held to be
         powerless to prevent such onslaught on the institute of administration of justice.”
       23. The learned counsel for the petitioners submits that it is not only the 1st
respondent/4th plaintiff has got temple properties but others have also got the same in
partition.
       24. At this juncture, this Court pertinently points out that a Com-promise Decree is
only the record of contract between the parties to which the Court‟s seal is superadded and
a Court of law does not decide anything. Hence, a Compromise Decree or Order does not
operate as res judicata. As per the provisions of Order 23, Rule 3 of Civil Procedure Code,
the Court can refuse to pass a decree in terms of the compromise only if it comes to the
conclusion that the said agreement or compromise is not lawful. A Court of law has every
jurisdiction to examine whether the agreement or com-promise is lawful within the
meaning of the explanation to Order 23, Rule 3 of Civil Procedure Code. In order to
determine whether or not an agreement has been reached between the parties the Court
has the necessity to embark upon an enquiry as to the allegations of a party that his
consent has been obtained by fraud, misrepresentation, undue influence or coercion etc.
Where there is no evidence of alleged fraud and the party has received benefit under the
Compromise Decree for a long time, in the instant case for a period of four years, the
compromise would not be set aside as per the decision Ranga Reddy Associates,
Hyderabad v. K.Shapor, Chennai, AIR 2005, NOC 101 : 2004 (4) Andh LD 564 (DB) (AP).
       25. It is apt for this Court to recall the decision of Honourable Supreme Court Dwarka
Prasad Agarwal v. B.D.Agarwal, AIR 2003 SC 2686 (2693, 2694) wherein it is held that
„where a purported settlement is not lawful, the Court‟s order regarding the same will not
be enforceable‟. Also that an allegation that a compromise is vitiated by illegality, fraud,
undue influence, misrepresentation etc. should be investigated by the Court as per decision
Misrilal v. Sobha Chand, AIR 1956 Bom 569.
       26. This Court in the interest of justice points out the decision Gopal Lal v. Babu Lal
and others 1996 AIHC 3184, wherein it is held that „a party challenging the validity of a
compromise can file petition under proviso to Rule 3 of Order 23 or can appeal under
Section 96 of the Civil Procedure Code and he can also question the validity of compromise
in view of Order 43, Rule 1-A of Civil Procedure Code‟.
       27. Also, this Court quotes the decision Smt.Vimala Kumari Gwal v. Dr. Satish Kumar
Yadav, 1997 AIHC 3469, wherein it is held that „Order 23, Rule 3-A of the Civil Procedure
Code does not provide for any procedure for setting aside a Compromise Decree. On the
other hand Rule 3-A prohibits a suit „to set aside the decree on the ground that the
compromise of which decree is passed was not lawful and more over it does not provide for
procedure for setting aside a Compromise Decree‟.
       28. It is useful to refer to the decision Muthuswamy Gounder v. Janakiraman (insane
person) and others, 1991 Vol (II) MLJ 516, wherein it is held that „one of the respondents
not claiming any interest in certain suit properties and the contest with regard to those
items is between the appellant and another respondent and the compromise between the
appellant and that respondent does not affect the interest of the respondent claiming no
interest and that the compromise is not void‟.
       29. In the decision Manoj Kumar Sonthalia v. Vivek Goenka and others, 1995 (2) MLJ
622 at page 623, wherein it is inter alia held that „A consent decree is not appealable under
the Code of Civil Procedure, (See Section 96(3)). Order 23, Rule 3 of the Code, however,
makes it clear that only a lawful agreement or compromise can satisfy the Court for
passing a decree in accordance therewith and only insofar as it relates to the parties to the
suit whether or not the subject-matter of the agreement, compromise or settlement is the
same as the subject-matter of the suit. If it is not a lawful agreement or compromise
between all the parties and only some of them have chosen to compromise, those who are
not parties to the compromise cannot suffer any decree in accordance therewith. The
introduction of Rule 3-A that no suit shall lie to set aside the decree on the ground that the
compromise on which the decree is passed was not lawful, leaves open to challenge in
appeal the compromise decree which is void or voidable under the Indian Contract Act,
1872 and does not bar institution of a suit by a person who is not a party to the suit or a
person who is a party to the suit but has not entered into the agreement or compromise.
       The Court cannot give directions to a person who is not a party to the suit or who is
not a party to the settlement or compromise. The parties to the suit, it is obvious, may be
asked to accept the compromise and those who have entered into the compromise may be
subjected to the Court‟s decree and those who have not accepted it are left free to choose
their action in accordance with law. The person who, however, is nowhere in the
proceedings before this Court cannot be asked to do a thing because the parties have
entrusted him with some job in course of the settlement of the disputes amicably outside of
the Court and pursuant to such entrustment to him or her, he/she is required to do certain
thing. The parties have to take the consequence of the such entrustment which is outside of
the             Court proceedings and the Court cannot have any concern with any such
entrustment.‟
       30. In the decision of Honourable Supreme Court Byram Pestonji Gariwala v. Union
Bank of India and others, AIR 1991 SC 2234, it is held thus:
        „The words „in writing and signed by the parties‟, inserted in Order 23, Rule 3, C.P.C
        by the C.P.C (Amendment) Act, 1976 necessarily mean and include duly authorised
        representative and counsel. Thus, a compromise in writing and signed by counsel
        representing the parties, but not signed by the parties in person, is valid and binding
        on the parties and is executable even if the compromise relates to matters
        concerning the parties, but extending beyond the subject matter of the suit. A
        judgment by consent is intended to stop litigation between the parties just as much
        as a judgment resulting from a decision of the Court at the end of a long drawn out
        fight. A com-promise decree creates an estoppel by judgment. Counsel‟s role in
        entering into a compromise has been traditionally understood to be confined to
        matters within the scope of the suit. However, a com-promise decree may
        incorporate not only matters falling within the subject matter of the suit, but also
        other matters which are collateral to it. The position before the amendment in 1976
        was that, in respect of the former, the decree was excutable, but in respect of the
        latter, it was not executable, though admissible as judicial evidence of its contents.‟
       31. In the decision Meenakshi and another v. Manikkam alias Ammalu and another,
1995 AIHC 1348, wherein it is held hereunder:
        „Under Order 23, Rule 3-A of the Civil Procedure Code no suit shall lie to set aside a
        decree on the ground that compromise on which decree is based was not lawful
        and rule is applicable to cases where fraud, coercion or undue influence is alleged
        however the same is appealable under Order 43, Rule 1-A and under Order 23, Rule
        3 and explanation thereto Court which entertained compromise petition has to
        examine whether it was void or voidable under the Contract Act.‟
       32. In the decision Muthukrishnamal v. Anathalakshmi and another, 1998 (III) CTC
748, following the decision of Honourable Supreme Court Byram Pestonji Gariwala v. Union
Bank of India and others, AIR 1992 (1) SCC 31, it is held that „counsel is authorised by
vakalatnama to act on behalf of the client it includes entering into compromise helpful to
the other party and 1968 K.L.T I (F.B) referred to on the role of counsel and the extended
nature of his implied authority.‟
       33. Added further, this Court aptly points out the decision Gurudev Kaur and another
v. Mehar Singh and others, AIR 1989 P&H 324 at page 325, wherein it is held as follows:
        „A compromise or consent decree can be got set aside on one of the grounds on
        which a contract can be set aside, namely, if obtained by „fraud;‟
        „misrepresentation‟, or „coercion‟ with an additional ground in favour of the minors
        or persons of unsound mind, if they are able to prove that the next friend or the
        guardian, who acted on their behalf, was negligent in conducting the proceedings. If
        none of these grounds is established, the Courts in a subsequent suit will have no
        jurisdiction to go behind the consent decree to find out whether the facts stated in
        the plaint, which culminated into compromise decree were right or wrong. AIR 1951
        SC 280 and AIR 1954 SC 352, Rel. on.‟
       34. Coming to the aspect of Order 20, Rule 8 of Civil Procedure Code it is necessary
for this Court to extract the same for better appreciation of the matter in issue and the
same runs as follows:
          “Procedure where Judge has vacated office before signing decree.—Where a Judge
          has vacated office after pronouncing judgment, but without signing the decree, a
          decree drawn up in accordance with such judgment may be signed by his successor
          or, if the Court has ceased to exist, by the Judge of any Court to which such Court
          was subordinate.”
        35. In the decision Hakikullah Haji Rahimutullah and others v. The Maharashtra
Housing and Area Development Authority and others, AIR 1997 Bombay 239 pertaining to
a proceeding under Section 66 of the Maharashtra Housing and Area Development Act,
1976, the competent authority after hearing both parties dictating judgment in open Court
and dismissing eviction proceedings and dropping the action initiated under Section 66 and
that the competent authority not signing the judgment as it was not typed before its term
expired, it is held that „it was an operative judgment and the successor incumbent shall sign
the same and issue certificate copies to the petitioner.‟
        36. Also, this Court quotes the decision Pratap Kishore and another v.
Gyanendranath, AIR (38) 1951 Ori 313, it is held that „a judgment read out in open Court by
a Judge written out by his predecessor does not become his own judgment so as to render
him incompetent to hear an appeal against the decree passed on it under Section 38(2) of
the Bengal, Agra and Assam Civil Courts Act (1887).‟
        37. It is relevant to make a mention that the 1st respondent/ petitioner/ 4th plaintiff
in the affidavit in I.A.No.535 of 2007 in I.A.No.1519 of 1991 in O.S.No.275 of 1990 on the
file of Principal Sub-Court, Salem has among other things averred that he has been totally
defrauded by his brothers who has taken advantage of his innocence, age and obtained his
signature in a compromise petition fraudulently and such a compromise petition will not at
all bind him in the circumstances and further huge fraud has been perpetrated on him by
his elder brothers in allotting the Devasthanam properties to him in the partition and
therefore, he has filed the suit O.S.No.214 of 2002 against his brothers and sisters and
some other who are said to be the purchasers of some of the properties after the final
decree has been passed and such sales effected on the basis of illegal final decree passed
in I.A.No.1519 of 1991 will not bind him at all. Since the trial of the suit in O.S.No.214 of
2002 has been protracted by the respondents and the aim of the defendants 1 to 3 is that
he shall not get his legitimate share in the properties left by his father and in view of the
enormous delay he has been advised to file the final decree application again, impleading
all concerned individuals inasmuch as the final decree passed earlier on 17.12.1991 is non
est and invalid in law etc.
        38. It is the further stand of the 1st respondent/petitioner/4th plaintiff that the
compromise petition has not been signed by all the parties concerned and also not signed
by their Advocates and therefore, the same is invalid and that apart, the learned Judge who
recorded the compromise has not passed any judgment thereon nor he has signed and
pronounced the judgment on that very day and as a matter of fact, without a judgment
there cannot be a decree at all and hence, the compromise recorded itself bristles with
illegalities, which render it void and since he has already waited for more than five years
without getting any relief, he has prayed for passing of a fresh final decree, since any
number of final decree petitions can be passed in law and therefore, has prayed for passing
of the final decree pursuant to the decree passed in O.S.No.275 of 1990.
        39. In the counter filed by the 1st revision petitioner/1st plaintiff (in O.S. No.275 of
1990), it is inter alia stated that the 1st respondent/petitioner/4th plaintiff is a graduate in
law, having rich experience and he has been representing the Joint Family Estate of
Elumalai Gounder in various forum and offices and looking after the Court cases and
represented up to Honourable Supreme Court in respect of cases filed against and on
behalf of the family and moreover, prior to the filing of the suit, there has been a
compromise muchalika arrived at between the 1st respondent/4th plaintiff and the
respondents 1 to 6 (in I.A.No.535 of 2007) at the instance of common individuals and
Panchayatdars on 20.6.1988 and as per the tenor and conditions of the said muchalika, all
the properties of late Elumalai have been partitioned by recording the compromise before
the Court in I.A.No.1519 of 1991 on 17.12.1991 and in fact, the entire properties have
been measured by metes and bounds by a qualified surveyor with the active assistance and
supervision of the 1st respondent/4th plaintiff and he has chosen the properties allotted to
him, by himself and also after consulting his wife and in-laws and besides above, it is true
that the „D‟ schedule properties have been allotted to the 1st respondent/4th plaintiff and
likewise other schedules have been allotted to respondents 1 to 3 in the compromise etc.
       40. Continuing further, it is the further plea of the 1st revision petitioner/1st plaintiff
that the 1st respondent/4th plaintiff is very well aware that his father and that of the
respondents held that lease hold rights in respect of the properties belonging to Sri Kanniga
Parameswari Deva-sthanam right from 29.11.1956 through a registered lease deed from
the original owner Pattabi Chettiar and about the subsequent transfer of the ownership to
the Devasthanam, by also attorning tenancy in favour of the Devasthanam and further, the
1st respondent is aware of the fact that there have been lease deeds executed including
the one dated 4.11.1966 by his father in respect of the Devasthanam‟s lands and after the
death of their father Elumalai, his entire family has been enjoying the lease hold rights and
these lease hold rights devolved on the legal heirs of Elumalai, has also been partitioned in
the said muchalika, by allotting to each of the 1st respondent/petitioner/4th plaintiff and
revision petitioners 1 to 3/plaintiffs 1 to 3 and their mother Jayalakshmi Ammal by
specifically mentioning the nature of the holding of the Devasthanam‟s property and all the
more, 1st respondent/4th plaintiff is a party to the said muchalika and in O.S.No.275 of
1990, the 1st respondent/4th plaintiff has included the property of Devasthanam, has the
self acquired property of Elumalai Gounder and in respect of portions allotted to the parties
they have been paying the rent to the temple authorities by means of a return etc.
       41. Besides the above, it is the stand of the 1st revision petitioner/1st
respondent/1st plaintiff that the dispute between the 1st respondent/4th plaintiff and the
revision petitioners 1 to 3/plaintiffs and the temple authorities have been settled on
16.3.2002, when the 1st respondent/4th plaintiff has executed a consent letter in favour of
the temple authorities by entering into an arrangement of limiting the extent of lease and
surrendering certain portion to the temple authority, by also agreeing to pay the lease
amount as per G.O.Ms.No.353 dated 4.6.1999 in the presence of witnesses.
       42. The pith and substance of the stand of the revision petitioners/ plaintiffs 1 to 3 is
that the parties are enjoying the properties according to the partition and the revision
petitioners have constructed huge buildings in the properties allotted to them in the
partition and they have also raised loans on them for improvement and that the 1st
respondent/4th plaintiff has also acted upon the said partition by selling the portions of rice
mill machineries, ginning factory machineries, flour mill machineries with motor, boilers,
shafts, pulleys, elevators worth Rs.25,00,000/- and appropriated the same for himself and
also that the revision petitioners/plaintiffs have also acted on the compromise decree and
hence, the partition already effected cannot be reopened at the whims and fancy of the 1st
respondent/4th plaintiff. In this connection it is not out of place for this Court to point out
that the 1st revision petitioner/1st plaintiff in his counter in I.A.No.535 of 2007 at
paragraph 11 has stated the following:
        “It is false to allege that the learned Judge who ordered the com-promise did not
        pass any Judgment thereon nor did he sign and pronounce Judgment on that very
        date. It is submitted that there is a judgment duly signed by the Judge. So far as the
        compromise decree is concerned, one Mr.Dhandapani, who was the then Principal
         Sub-Judge of Salem, recorded the compromise and also signed the compromise
         decree. In the judgment, one Mr. P. Ramakrishnan who is his successor has signed
         for and on behalf of Principal Sub-Judge. It is not illegal. It is permitted under Order
         20, Rule 8, C.P.C., that if at the time of signing the judgment, the Presiding Officer
         who passed the decree ceased to be the Presiding Officer, then his successor or in
         charge can sign on his behalf. Hence, there is absolutely no illegality involved in
         signing the judgment by Mr. P. Ramakrishnan. It is submitted that there is no
         illegality committed by the Sub Court. It is false to allege that the compromise
         decree recorded is shrouded with illegalities and it would render void.”
       43. The respondents 4 to 6 in I.A.No.535 of 2007 have reportedly relinquished their
rights by receiving Rs.25,000/- each by executing a release deed dated 11.4.1973 and
since they have not claimed any property they have been given up and the same has been
said to have been recorded by the learned Principal Sub-Judge, Salem in the compromise
decree and judgment.
       44. Also, a plea is taken on the side of the revision petitioners/ plaintiffs 1 to 3 that
the 1st respondent/4th plaintiff after entering into a compromise, wants to wriggle out of
his settlement with the temple for which he wants to grind his axe.
       45. It is to be borne in mind that if the statements of the parties have been recorded
by the trial Court containing the clauses of the compromise which have been duly signed by
them, then the ingredients of the first part of Order 23, Rule 3, stand properly satisfied in
the considered opinion of this Court. Indeed, the signed statements are covered by the
definition of „document‟ mentioned in Section 3 of the Indian Evidence Act. However, if a
Court of law entertains doubt about the factum/genuineness of the compromise it can
insist on the personal appearance of the parties as per decision D.P. Chada v. Trijugi Narain
Mishra, AIR 2001 SC 457 ( 465). In respect of a compromise signed by both the parties, the
defendant resiled from the compromise and the Court is entitled to refuse to record the
com-promise and decree the suit in terms of compromise as per decision Kari Singh v.
Ramkumar, AIR 1993 Raj 204, 207.
       46. The salient feature of a compromise is that the same ought to be enforceable in
the eye of law. The prime test is, were the individuals competent to enter into the
agreement in order to achieve the purpose they had in view. In view of the divergent stand
taken by the contesting parties before this Court in this revision, it is apt for this Court to
extract the Rule 32 of the Civil Rules of Practice which deals with „Proof of facts by affidavit‟
and the same enjoins as follows:
         „Any fact required to be proved upon an interlocutory proceeding shall, unless
         otherwise provided by these rules, ordered by the Court, be proved by affidavit, but
         the Judge may, in any case, direct evi-dence to be given orally; and thereupon the
         evidence shall be recorded and exhibits marked, in the same manner as in a suit
         and lists of the witnesses and exhibit shall be prepared and annexed to the
         judgment.‟
       47. As far as the present case is concerned a final decree has been passed in
O.S.No.275 of 1990 on 17.12.1991 by the learned Principal Sub-Judge, Salem. Later,
I.A.No.535 of 2007 in O.S.No.275 of 1990 has been filed by the 1st
respondent/petitioner/4th plaintiff before the trial Court praying for passing of the final
decree consequent to the Decree in O.S.No.275 of 1990 (on the ground that in law any
number of final decree petitions can be projected) and the same has been allowed without
costs, resulting in annulment of final decree based on the compromise petition filed in
I.A.No.1519 of 1991. Earlier, the 1st respondent/petitioner/4th plaintiff has filed
O.S.No.214 of 2002 on the file of learned Additional Sub-Judge, Salem praying for the relief
of declaration that the final decree passed in I.A.No.1519 of 1991 in O.S.No.275 of 1990 is
void, having been obtained by fraud at the instance of D1 to D3 etc. and the same has been
dismissed as withdrawn on 13.11.2007. These facultative aspects of the matter float on
the surface lucidly, about which the parties are alive and very much conscious of the same.
       48. Though the Civil Revision Petitioners/ Plaintiffs 1 to 3 have placed reliance on
Order 20, Rule 8 of Civil Procedure Code relating to the procedure where a Judge has
vacated the office before signing decree the ingredients of the said provision are of no avail
to them, since it speaks of a Judge having vacated the office, after pronouncement of
judgment, but without signing the decree etc. In the present case on hand, in I.A.No.1519
of 1991 in O.S.No.275 of 1990 when the compromise has been recorded by
Thiru.D.Dhandapani, learned Principal Sub-Judge, Salem on 17.12.1991, he has not
vacated his office and as a matter of fact, his successor has also not taken charge from
him. Therefore, strictly speaking, Thiru.D.Dhandapani, learned Principal Sub-Judge, Salem
alone should have signed in the final decree passed in O.S.No.275 of 1990 dated
17.12.1991. Unfortunately, the final decree in O.S.No.275 of 1990 dated 17.12.1991 on
the file of learned Principal Sub-Judge, Salem, bears „the name of Thiru. D. Dhanda-pani,
B.A., B.L., Prl.Sub-Judge, Salem, Tuesday, the 17th day of December 1991, O.S.No.275 of
1990‟ but at the end of the decree for Principal Sub-Judge, Salem „one P.Ramakrishnan
has signed‟. A perusal of the final decree in O.S.No.275 of 1990 dated 17.12.1991 shows
the word „for‟ is added after the words Principal Subordinate Judge, Salem and below the
word „for‟ someone in the office has put his short initials.
       49. Admittedly, learned Additional Sub-Judge, Salem who signed the final decree
dated 17.12.1991 in O.S.No.275 of 1990 on the file of learned Principal Sub-Judge, Salem
at the relevant time has been serving as Additional Sub-Judge, Salem and it passes beyond
one‟s comprehension as to how an Additional Sub-Judge, Salem who has not passed the
final decree in O.S.No.275 of 1990 dated 17.12.1991 can affix his signature in the said
final decree when that too he has been on Casual Leave on 17.12.1991 as seen from the
„A‟ Diary extract pertaining to the Court of Additional Sub-Judge, Salem. Therefore, it is a
clear case of mischief or mala fide act or misrepresentation or playing truant by the
concerned in the office of learned Principal Sub-Judge, Salem while obtaining the signature
of learned Additional Sub-Judge, Salem which needs to be investigated or enquired into
threadbare by means of letting in oral and documentary evidence, in the considered opinion
of this Court. It is also not known and no material is brought forth to the satisfaction of this
Court as to why Thiru.D.Dhandapani, learned Principal Sub-Judge, Salem has not signed in
the final decree in O.S.No.275 of 1990 dated 17.12.1991. Equally, it is also not made clear
to this Court as to why Thiru.P.Ramakrishnan, learned Additional Sub-Judge, Salem has
affixed his signature in the final decree dated 17.12.1991 in O.S.No.275 of 1990, when he
is not concerned with the said decree at all.
       50. More over, it cannot be forgotten that Thiru. P. Ramakrishnan, learned Additional
Sub-Judge, Salem has been holding office as Additional Sub-Judge, Salem and
conspicuously, he has been on Casual Leave and therefore, the cases in his Court have
been reposted to various dates as seen from the certified true xerox copy of the „A‟ Diary
extract, filed as relevant typed set of papers on the side of respondents before this Court.
Significantly, in I.A.No.535 of 2007 Thiru. D. Dhandapani, learned Principal Sub-Judge,
Salem and Thiru. P. Ramakrishnan, learned Additional Sub-Judge, Salem have not been
examined as witnesses before the trial Court. On both sides, no one has been examined as
witness in I.A.No.535 of 2007. Only documents have been marked on either side. No
explanation is forthcoming on both side as to why Thiru. D. Dhandapani, learned Principal
Sub-Judge, Salem and Thiru. P. Ramakrishnan, learned Additional Sub-Judge, Salem have
not been examined as witnesses in the proceedings in I.A.No.535 of 2007 before the trial
Court. As a matter of fact, the trial Court has come to the definite conclusion while passing
orders in I.A.No.535 of 2007 on 21.4.2008 that signing of the final decree in O.S.No.275 of
1990 by Thiru.P.Ramakrishnan, learned Additional Sub-Judge, Salem when he has been on
leave cannot be accepted and on that day, when the final decree has been passed, the
learned Principal Sub-Judge, Salem has been in service in the very same Court. Suffice it
for this Court to point out that the presence of the signature of Thiru.P.Ramakrishnan,
learned Additional Sub-Judge, Salem in the final decree dated 17.12.1991 in O.S.No.275 of
1990 though the said decree shows the presence of Thiru.D.Dhandapani, learned Principal
Sub-Judge, Salem is indeed a murky affair/matter and the same needs to be investigated
effectively and efficaciously, completely and comprehensively, so that such thing shall not
recur again, notwith-standing the fact that preparation of a decree is an administrative act
of the Court office in which the concerned Judge signs.
       51. Though I.A.No.535 of 2007 has been filed by the 1st respondent/ 4th plaintiff as
petitioner before the trial Court on 14.9.2007 nearly after lapse of 16 years from the date
of passing of the final decree in O.S.No.275 of 1990 dated 17.12.1991, a perusal of the
order passed by the trial Court in I.A.No.535 of 2007 dated 21.4.2008 shows that it does
not discuss or deal with the aspect of the said delay and whether the 1st respondent/4th
plaintiff is justified in projecting the said application when the parties have acted upon the
compromise decree passed earlier in O.S.No.275 of 1990.
       52. Considering the respective contentions and on an overall assess-ment of the
facts and circumstances of the case in a cumulative fashion and also in the light of
qualitative and quantitative discussions mentioned supra, this Court without expressing any
opinion on the merits of the matter is of the considered view that oral evidence of the
respective parties are very much necessary in the matter in issues like (1) whether
compromise is lawful or otherwise? (2) whether compromise is acted upon? (3) whether the
1st respondent/4th plaintiff wants to wriggle out of the settlement with temple? and also
to enable the trial Court to render a specific and a categorical finding as to whether the 1st
respondent/4th plaintiff is lawfully entitled to file I.A.No.535 of 2007 after an inordinate
delay of 16 years from the date of passing of Final Decree in O.S.No.275 of 1990 dated
17.12.1991 on the file of Principal Sub-Judge, Salem and therefore, to find out the truth of
the matter in threadbare, this Court allows the Civil Revision Petition by setting aside the
order passed by the trial Court in I.A.No.535 of 2007 dated 21.4.2008 to subserve the ends
of justice and remits back the matter to trial Court for fresh consideration in accordance
with law.
        53. In the result, the civil revision petition is allowed. The order passed by the trial
Court in I.A.No.535 of 2007 dated 21.4.2008 is set aside. The matter is remitted back to
the trial Court viz., the learned Principal Sub-Judge, Salem for considering the entire gamut
of the issues in I.A.No.535 of 2007 afresh by permitting the parties to adduce oral and
produce documentary evidence (including the Release Deed dated 14.11.1973) and also
providing them necessary opportunities to examine both Thiru. D. Dhandapani the then
learned Principal Sub-Judge, Salem and Thiru. P. Ramakrishnan, then learned Additional
Sub-Judge, Salem to prove their case and the trial Court is also bound to examine the
concerned persons as witnesses (either retired or serving in different Courts in different
capacities like then Sheristadar then Steno-typist to Principal Sub-Judge, Salem) who have
obtained the signature of Thiru.P.Ramakrishnan, learned Additional Sub-Judge, Salem in
the final decree in O.S.No.275 of 1990 dated 17.12.1991 and also to know as to why the
signature of Thiru.D.Dhandapani, learned Principal Sub-Judge has not been obtained in the
final decree in O.S.No.275 of 1990 dated 17.12.1991 when he has been in service at the
relevant point of time in Salem. The trial Court is directed to dispose of the I.A.No.535 of
2007 on merits within a period of three months from the date of receipt of a copy of this
order, so as to give a complete quietus to the controversies/disputes involved between the
parties in a comprehensive manner. Consequently, the connected miscellaneous petition is
closed. No costs.
                                                                                                               Revision allowed.



                                                [2010 (1) T.N.C.J. 406 (SC)]
                                                     SUPREME COURT
BEFORE:
                   TARUN CHATTERJEE AND SURINDER SINGH NIJJAR, JJ.
                                                              JITENDRA KUMAR SINGH AND ANOTHER                            ...Appellants
                                                                Versus
                                                 STATE OF U.P. AND OTHERS                                             ...Respondents
            [Civil Appeal No. 74 of 2010 (Arising out of SLP (C) No. 1952 of 2008) with C.A. No.
     75/2010 (@ SLP (C) No. 1967 of 2008) with C.A. No. 79/2010 (@ SLP (C) No. 1959 of
   2008) with C.A. No. 80/2010 (@ SLP (C) No. 7739 of 2008) with C.A. Nos. 76-78/2010 (@
   SLP (C) Nos. 14078-1480 of 2008) with C.A. No. 81/2010 (@ SLP (C) No. 19100 of 2009,
                                                 decided on 8th January, 2010]
           Constitution of India, 1950—Article 16—Dispute against reservation of posts for Backward Classes, Scheduled Castes, Scheduled
Tribes, Women candidates and sportspersons—Held, once the candidate parti-cipates in written examination, it is immaterial as to which
category,thecandidatebelongs—Onlythereaftersuccessfulcandidatespermittedtoparticipateinopencompetition—Sinceallthecandidates
irrespectiveofcategorytheybelongedtohavebeensubjectedtouniformselectioncriteria—AppealsfiledbyGeneralcategorycandidatesare
without substance—Further the Division Bench erred in issuing directions to appellants to fil in the unfilled vacancies reserved for women
candidatesfrommalecandidates—Furthermore,HighCourterredinlawinconcludingthatadvertisementdidnotmentionseparateselection
forpostsreservedforsportsmen,notpermissibleinlaw—Separateselectionisclearlypartandparcelofmainselection.                         (Paras 53
to55,63and64)
           Case law.—1992 Supp (3) SCC 217 ; 1997 (6) SCC 283 ; 1998 (4) SCC 1 ; 1997 (7)
SCC 120 ; 2004 (11) SCC 755 ; 2003 (7) SCC 83 ; JT 2006 (4) SC 524 ; 2006 (1) SCC 275 ;
1996 (6) SCC 44 ; 1998 (2) SCC 214 ; (1997) 2 SCC 332 ; 1998 (4) SCC 1 ; 1974 (1) SCC
87—referred.
                                                              JUDGMENT
           SURINDER SINGH NIJJAR, J.—Leave granted.
           2. These Appeals are directed against the common Division Bench judgment of the
High Court of Judicature at Allahabad dated 22.12.2006. By the aforesaid judgment, the
High Court decided number of Appeals directed against the common judgment of the
learned Single Judge in Writ Petition No.25328 of 2001 and a number of other connected
writ petitions.
           3. The appellants had assailed the judgment dated 22.5.2002 of the learned Single
Judge to the extent that the Writ Petition Nos.25328, 26847, 36411, 28836, 26177,
34039, 4630, 32763, 27849, 27060, 29069 of 2001 and 47528 of 2002 had been
dismissed whereby the petitioners-appellants were seeking a writ in the nature of
mandamus directing the respondents to send them for training to the post of Sub-
Inspectors. In some of the writ petitions, a prayer had also been made for quashing the
entire select list which was also declined by the learned Single Judge. In Special Appeal
No.592 of 2006, the appellant who was respondent had assailed the aforesaid judgment of
the learned Single Judge only to the extent the Single Judge had issued a writ in the nature
of mandamus to the respondent-appellants to fill up vacancies against 2% Sports Quota
from the aforesaid selection itself. In Special Appeal No.1285 of 2002, the original
petitioner had challenged the judgment dated 1.10.2002 passed by the learned Single
Judge (R.K.Agarwal, J.) dismissing the writ petition No.47528 of 2002 following the
judgment dated 22.5.2002 of Ashok Bhusan, J. in writ petition No.25328 of 2001 and
other connected matters (supra). In Special Appeal No.910 of 2005, the original petitioner
had assailed the judgment dated 19.7.2005 of Sunil Ambwani, J. dismissing writ petition
No.29383 of 2001 again following the judgment dated 22.5.2002 of Ashok Bhusan, J.
(supra).
      4. The dispute between the petitioners and the respondents revolves around the
issue of reservation of posts for Backward Classes, Scheduled Castes, Scheduled Tribes,
Women Candidates and Sportspersons.
      5. We may notice here the relevant facts before we advert to controversy in detail.
      6. An advertisement was issued on 4.5.1999 for direct recruitment on the post of
Sub-Inspectors in Civil Police (hereinafter referred to as “SICP”) and Platoon Commanders
in PAC (hereinafter referred to as “PC”). According to the respondents, the break down of
the posts was 1379 Posts for SICP and 255 posts for PC. Out of these posts, 2% posts were
reserved for outstanding Sportspersons. The recruitments to these posts were to be made
by a separate advertisement. Apart from above, 10% of the posts were reserved for women.
      7. The procedure for selection included a Preliminary Written Test consisting of 300
marks. Candidates were required to secure at least 50% marks for being declared
successful and entitled to participate in further test. This was followed by a Physical Test
consisting of 100 marks. Again the candidate had to secure at least 50% or more marks.
The marks obtained in the Preliminary Written Test and the Physical Test were, however,
not to be included for determination of final merit. Candidates who qualified in the
Preliminary Written Test and the Physical Test were required to appear in the Main Written
Test consisting of 600 marks, having two papers, i.e. General Hindi, General Knowledge and
Mental Aptitude Test. Here again a candidate who secured 40% or more marks could only
be declared successful. The written test consisted of two papers- (i) Hindi language and
Essay consisting of 200 marks and (ii) General Knowledge and Mental Aptitude Test
consisting of 400 marks. Thereafter, the candidate was to appear for interview which
consisted of 75 marks. There were, however, no qualifying marks for the interview.
      8. It is common ground that in response to the advertisement, more than 50,000
candidates applied for the posts. The result for the Preliminary Written Test which was held
on 6.2.2000, was declared on 22.9.2000. 7325 candidates were found successful. Physical
Test was held from 29.10.2000 to 6.11.2000 and 1454 candidates were found successful.
The main written test was held on 29.4.2001 wherein 1178 candidates were declared
successful. The final result of the interview was declared on 6.7.2001, wherein 1006
candidates were declared successful. The number of persons who were selected in different
categories finally and have been sent for Training is as under:
          1. General (Male) for the post of Sub-Inspectors 608
          2. General (Female) for the post of Sub-Inspectors (This included one
                dependent of freedom fighter) 15
                Note: 163 OBC, 19 Scheduled Castes and 1 Scheduled Tribes candidates
                having secured more than the last general candidate, were selected against
                general vacancies.
          3. OBC (male) for the post of Sub-Inspectors 168
          4. OBC (female) for the post of Sub-Inspectors 9
          5. SC (male) for the post of Sub-Inspectors 25
          6. SC (female) for the post of Sub-Inspectors 1
            7. ST (male) for the post of Sub-Inspectors 3
            8. General (male) Platoon Commander in PAC 125
        9. All the petitioners-appellants who applied pursuant to the aforesaid advertisement
had participated in the entire selection process. However, the names did not figure in the
merit list of the selected candidates.
        10. The selection was challenged in a number of writ petitions by candidates who
were not included in the select list. According to the High Court, the selection was
challenged on the following grounds:-
            1. The selection has been made by adopting pick and choose method.
            2. More than 600 posts are still vacant yet the petitioners have not been
                  declared successful.
            3. There was no guideline or criteria for interview.
            4. The number of candidates appeared for main examination and interview
                  being less than the total number of vacancies, therefore, the petitioner-
                  appellants could not have been unsuccessful.
            5. Several candidates having inferior educational record have been declared
                  successful.
            6. Certain persons having Roll Nos.0492198, 520570, 0492263, 760146,
                  480612, 492353, 7706166, 790658, 790519 and 790035 did not find
                  place in the result after main examination yet have been shown as selected
                  finally in the final merit list which shows serious irregularities and bungling
                  in the selection.
            7. Keeping large number of vacancies unfilled although success-ful candidates
                  are available is a motive for extracting illegal demand.
        11. The writ petitions were opposed by the State Government by filing a detailed
counter-affidavit in Writ Petition No.26177 of 2001. The aforesaid counter-affidavit was
said to have been read on behalf of the State in all the cases. It was explained by the State
Government that in response to the advertisement, total 53780 application forms were
received. It was further explained that 1178 candidates had qualified in the main written
test who appeared in the interview which was held between 18.6.2001 to 1.7.2001. It was
further explained that vide Government order dated 3.2.1999, 2956 posts of SICP were
sanctioned, out of which 50% posts were to be filled by direct recruit and 50% posts by
promotion. Therefore, 1478 posts came to be filled in by direct recruit. Since 99 posts were
filled under the Category of “Dying in Harness” Rules, only 1379 posts remained to be filled.
Separate selection was to be held on the 2% vacancies reserved for Sportspersons through
a separate advertisement. Therefore, as a matter of fact, actual recruitment was made, i.e.
only for 1350 posts of SICP and 255 posts of PC. The break-up of the posts was as
indicated above.
        12. Upon consideration of the entire matter, Ashok Bhusan, J. delivered common
judgment dated 22.5.2002 in CMWP No.25328 of 2001 (Narendra Partap Singh v. Director
General of Police, UP and others). All the writ petitions were disposed of with the following
observations:
         “In view of the foregoing discussions none of the contentions of the petitioner can
         be accepted except the contention regarding 2% reservation for sports men. Relief
         claimed by the petitioner cannot be granted except the direction to the respondents
         to recalculate the number of posts of general category candidates by applying 2%
         reservation for sports men horizontally and adding 2% posts of sports men also
         while calculating the total number of vacancies of general category candidates. If
        after applying 2% reservation horizontally any post in general category candidates
        quota remains vacant the same shall be filled up by the general category
        candidates next in merit. It is, however, made clear that by the said exercise the
        selection already made will not be affected in any manner. All the writ petitions are
        disposed of with the aforesaid directions”
      13. This judgment was subsequently followed in the separate judg-ments delivered
by R.K. Agarwal, J. and Sunil Ambwani, J. All the three judgments were challenged in
appeals before the Division Bench, which have been decided by the common judgment
dated 22.12.2006.
      14. The Division Bench noticed the submissions made by the learned counsel for the
parties in detail and formulated seven issues which arose in the appeals. The issues were
as under:
         “(1) What is the extent of selection of a reserve category can-didate against
                unreserved seats and in what circumstances he can be considered against
                unreserved vacancies besides reserve seats. The relevant factors, shades
                and nuisances for such adjustment also need to be identified, if any.
          (2) Whether Section 3 (6) of Act of 1994 would apply where a candidate of
                reserve category though has availed relaxation meant for reserve category
                candidates namely fee and age but in all other respect, in the selection test,
                has completed with general category candidates and has secured more
                marks than the last selected general category candidate. In other words
                whether relaxation in age and fee would deprive and outsource him from
                competing against an unreserved seat in an open competition with general
                candidates.
          (3) Whether selection of reserve category candidates against reserved and
                unreserved constituting more than 50% is unconstitutional or otherwise
                contrary to law.
          (4) Whether reservation of seats for women is violative of Article 16(2) of the
                Constitution of India.
          (5) Whether seats reserved for women can be carried forward in case suitable
                candidates are not available or the reserva-tion being horizontal and
                applicable to all categories,       the unfilled vacancies are to be filled by
                suitable male candidates.
          (6) Whether keeping 2% sports quota separate from the selec-tion in question
                is illegal.
          (7) Whether selection in question is otherwise vitiated on account of any
                alleged irregularity or bungling.
      15. The Division Bench noticed the historical background in which the provisions with
regard to reservation came to be incorporated in the Constitution of India. The Division
Bench also noticed the entire history with regard to the various Government orders making
reservation for different categories. The Division Bench notices that the matter of reserva-
tion has been dealt in detail by this Court in numerous cases. Therefore, the Division Bench
has confined itself to the problem as, faced and countered, in the State of U.P; particularly
with reference to the category of the candidates belonging to „O.B.Cs.‟ The Division Bench
also noticed the statutory provisions contained in the U.P. Public Services (Reservation for
Scheduled Castes and Scheduled Tribes) Act, 1994 (hereinafter referred to as “the Act of
1994”). The High Court considered issues No.1, 2 and 3 together.
       16. The Division Bench has concluded that the various Government orders and the
Act of 1994 provide reservation in State services with the intent to achieve the goal of
adequate representation of Backward Classes of Citizens in service. It notices that
reservation under Article 16(4) has to be made keeping in view the provisions contained in
Articles 14, 16(1) and 335 of the Constitution of India. It is also held that there are various
modes and methods of providing reservation. The extent and nature of reservation is a
matter for the State to decide considering the facts and requirements of each case. In this
case the Legislature has empowered the State to extend concessions limited to fee and age
to OBCs, besides keeping reservation of seats to the extent of 27%. The prime objective,
obviously, is to provide adequate representation to these classes, which in the opinion of
the Legislature are not adequately represented in the services under the State. The Division
Bench also concluded that the State Government has not conducted any indepth study to
find out as to whether adequate represen-tation has been given to any particular Backward
Classes as a result of successive provisions for reservation. Therefore, a direction has been
given to the State Government of U.P. to undertake an indepth study to find out the
representation of various Backward Citizens in Public service and to find out whether any
Backward Class citizens have achieved the constitu-tional goal of adequate representation
in service or not. Thereafter, the Government is to review the policy in the light of facts,
figures and information received pursuant to such study. The exercise is to be undertaken
by the State Government within six months and a compliance report is to be submitted to
the Court.
       17. With regard to the manner, mechanism and inter-relationship of various
concessions and reservations, the Division Bench observed that it is permissible for the
State to provide concessions to achieve the goal under Article 16(4) without keeping the
seats reserved for any backward class of citizens. When certain seats are reserved, it would
not result in making unreserved seats compartmentalized for General Category can-didates,
i.e. unreserved candidates. There is no reservation for General Category Candidates. It is
also held that a reserved category candidate, in addition to the reserved seats, can always
compete for unreserved seat. The Division Bench has further held that the reserved
category candidate can also compete against the unreserved seats under a criteria which is
uniformly applicable to all the candidates. In case the selection criteria is lowered for the
reserved category candidate, then such difference in standard or criteria would disentitle
the reserved category candidate to compete in the general category. After analyzing the law
laid down by this Court in numerous judgments, the Division Bench has concluded that the
conflicting claims of individuals under Article 16(1) and the preferential treatment given to
a backward class under Article 16(4) of the Constitution has to be balanced, objectively.
The Division Bench then considered as to whether the concession or relaxation in the
matter of fee and age would deprive a reserved candidate of his right to be considered
against an unreserved seat. Can it be said that such a candidate is not a person who has
competed with the general category in an open competition. It is noticed that under GOs
(Government Orders) dated 11.4.1991, 19.12.1991 and 16.4.1992 and the clarification
dated 19th October, 1992, it was provided that a reserved category candidate cannot
compete with the open category candidate(s) after availing preferences which result in
lowering of the prescribed standards. Such a candidate would only be considered against
seat/post for the reserved category. However, after the promulgation of the 1994 Act and
issuance of the Instructions dated 25th of March, 1994, the State Government has not
treated relaxation in age and fee as relaxation in the standard of selection. Therefore, even
if a candidate has availed concession in fee and or age limit, it cannot be treated to be a
relaxation in standard of selection. Therefore, it would not deny a reserved category
candidate selection in Open Competition with General Category candidates. Such
concessions can be granted by the State under Section 8(1) of the Act. The Division Bench
has also held that a relaxation in age and concession in fee are provisions pertaining to
eligibility of a candidate to find out as to whether he can appear in a competitive test or not
and by itself do not provide any indicia of open competition. The competition would start
only at a stage when all the persons who fulfill all the requisite eligibility qualification, age
etc. are short listed. The candidates in the zone of consideration entering the list on the
basis of aforesaid qualifications would thereafter participate in competition and open
competition would commence therefrom. Therefore, concession granted under Section 8
would not disentitle a reserved category candidate of the benefit under Section 3, sub-
section (6).
        18. In view of the above legal position, it has been held that if a reserved category
candidate has secured marks more than the last General Category candidate, he is entitled
to be selected against the unreserved seat without being adjusted against the reserved
seat. According to the Division Bench, merely because 183 candidates, belonging to the
reserved category, have been successful against unreserved seats would not result in
reverse discrimination, as apprehended by the petitioners. This is particularly so as
selection of such reserved category candidate against the unreserved seats would not be
material for the purpose of applying the principle of reservation being limited to a total of
50%.
        19. The Division Bench has also held that the reservation in favour of women is
constitutionally permissible and is valid. On issue No.5 it has been held that in view of the
G.O. dated 26.2.1999 (para 4), the 52 vacancies of general category kept reserved for
women candidates have been illegally carried forward for the next selection instead of
filling in from the general category male candidates. However, since the posts remained
vacant, the same had to be filled from the general category male candidates and could not
be carried forward.
        20. Reservation in favour of sportspersons quota (2%) has also been upheld. It was
held that the aforesaid reservation has to operate horizontally, therefore, the 29 vacancies
which remained unfilled could not have been carried forward. The observations made by
the Single Judge on this issue have been approved. A direction has been issued as follows:
          “We direct the respondent-authorities to fill in the unfilled vacancies reserved for
          women candidates and sportsmen from suitable candidates of respective category
          on the basis of merit list and send them for training and provide all other benefits, if
          any as per rules. However, we may add here, since the respondents did not hold
          recruitment for sports persons in the present selection and we are informed that a
          separate selection was held, therefore, we provide that the vacancies remain
          unfilled from the separate selection held for sportsmen against 29 vacancies
          separated from the impugned selection, only those remaining vacancies shall be
          made available to the respective candidates of this selection.”
        21. The aforesaid findings of the Division Bench have been challenged in these
appeals by the unsuccessful candidates as well as the State of U.P.
        22. We have heard learned counsel for the parties.
        23. Mr. L.N. Rao, learned senior counsel appearing on behalf of the appellants
submitted that the cardinal issue raised in these appeals is whether the reserved category
candidates who had taken the benefit of age or fee relaxation, are entitled to be counted as
general category candidates. According to the learned senior counsel, the Division Bench
has erred in law in concluding that relaxation in age and fee cannot be treated to be
relaxation in standard of selection and shall not deny a reserved category candidate‟s
selection in Open Competition with General Category candidate. According to learned
senior counsel, the benefit of reservation under Article 16(4) of the Constitution of India is a
group right whereas under Article 16 (1) of the Constitution of India, it is an individual right.
It is emphasized that reservation under Article 16(4) of the Constitution of India will take
into its fold concessions. Once a candidate falls within the reserved category, he/she can
only exit the Group, i.e. from the benefit of Article 16(4) of the Constitution of India to
Article 16(1) of the Constitution of India on fulfillment of two circumstances, namely, (a)
imposition of a creamy layer and (b) merit selection. That is where there is a level playing
field in respect of the selection process, without any benefit under Article 16(4) of the
Constitution of India. According to the learned senior counsel, a level playing field would be
of candidates who have not availed of any concessions or relaxation. All things have to be
equal for all the candidates.
       24. According to learned senior counsel, there is a distinction between relaxation and
concession which pertain to a particular selection process and mere support mechanism
(such as General Coaching) independent of a criteria for a particular selection.
       25. According to the learned senior counsel, selection process would include all
stages. There can be no distinction that relaxation in age and fee can be treated as
provisions pertaining to eligibility, i.e. to bring a candidate within the zone of consideration.
According to the learned senior counsel, it is hair splitting to divide the selection process
into further parts. Each undermines the concept of “level playing field”. Learned senior
counsel further submitted that the Division Bench has misinterpreted Section 3 of the Act
of 1994. It has to be read as a whole. Section 8 is in nature of exception to Section 3 (6),
because it creates a non-level playing field.
       26. In order to emphasize that reservation under Article 16 (4) of the Constitution of
India is a group right, and includes preferences, concessions and exemptions, Mr. L.N. Rao
relied on certain observations of this Court made in the case of Indra Sawhney and others v.
Union of India and others, 1992 Supp (3) SCC 217. According to him, the fact that only age
and fee relaxations were given does not take the reserved category candidates out of the
group category. He has also relied on the judgment rendered in the case of Post Graduate
Institute of Medical Education & Research, Chandigarh and others v. K.L.Narsimhan and
another, 1997 (6) SCC 283, in support of the submission that once a candidate takes
advantage of relaxation in the eligibility criteria, he/she has to be treated as a reserved
category candidate.
       27. With regard to the interpretation to be placed on the Act of 1994, Mr. L.N.Rao
submitted that Section 3 preserves the definition of the group throughout. According to
him, Sections 3 (6) and Section 8 are to be read together in the following way, i.e. in Section
3(6), the term “gets selected on the basis of merit in an open competition” denotes a level
playing field in Open Competition permitting exit from the group into the merit category.
Section 8 lowers the level playing field “for any competitive examination” and clubs three
categories together—(a) fees, (b) interview and (c) age limit. According to the learned senior
counsel, the invocation of Section 8 wholly excludes the operation of Section 3 (6) to which
Section 8 is an exception. He further submitted that relaxation and concessions may be of
various kinds. Each is a part of Article 16 (4) of the Constitution of India and could have
egalitarian consequences. In support of the submissions, reliance is placed on observations
of this Court made in paragraph 743 in the case of Indra Sawhney (supra). According to the
learned senior counsel, there is a distinction between social support mechanisms prior to
an examination, (which are also a part of Article 16 (4) of the Constitution of India) and the
relaxations/concessions which relate to the selection process itself. According to the
learned senior counsel, supplemental and ancillary provisions to ensure full availment of
provisions for reservation would be a part of reservation under Article 16 (4) of the
Constitution of India. He submitted that the selection process has to be seen as a whole. It
cannot be split up into different parts. Section 8 is an exception to Section 3(6). In view of
the above, according to the learned senior counsel, the Division Bench has erroneously held
that in view of Section 8 of the Act of 1994, reserved category candidates can be permitted
to compete with the General Category candidates. Learned senior counsel has also
submitted that the learned Single Judge has wrongly distinguished the judgment in the
case of K.L.Narsimhan (supra) on the basis that it was over-ruled by a larger five Judges
Bench in the case of Post Graduate Institute of Medical Education & Research, Chandigarh
v. Faculty Association and others, (1998) 4 SCC 1. The aforesaid judgment was over-ruled
only on one particular point raised in the review application. The aforesaid judgment had
decided three appeals in a common judgment. Review was filed only in one. Therefore, the
judgment in other cases is not over-ruled. It has in fact been subsequently referred to in Dr.
Preeti Srivastava and Anr. V. State of M.P. and Ors., 1999 (7) SCC 120, Bharati Vidyapeeth
and Ors. v. State of Maharashtra and Anr., 2004 (11) SCC 755 and State of Madhya
Pradesh and Ors. v. Gopal D.Tirpathi and Ors., 2003 (7) SCC 83. Therefore, according to Mr.
L.N.Rao, the reasoning given therein is still relevant. Learned senior counsel then relied on
the judgment in the case of Union of India and another v. Satya Prakash and others, JT
2006 (4) SC 524, in support of the submission that only a candidate who has been selected
without taking advantage of any relaxation/concession can be adjusted against a seat
meant for General Category Candidate. Learned senior counsel then submitted that the
vacancies which are reserved for women candidates remained unfilled, and therefore,
ought to have been filled from the men candidates belonging to the General Category. Even
these vacancies have been illegally carried forward. The reservation in favour of women is
referable to Article 15 (3) of the Con-stitution of India and not Article 16 (4) of the
Constitution of India. Therefore, it is horizontal reservation in which carry forward rule would
not be applicable. Even with the carry forward rule which is applicable only to vertical
reservations, 50% cap as approved in Indra Sawhney case (supra) cannot be permitted to
be breached.
       28. In fact in the present case, the reserved category candidates have occupied one
third of the posts meant for the General Category. If the argument of the State is accepted
in addition to the quota of 50% (with carry forward), another 183 out of 1014 (18%) would
be added. Learned senior counsel reiterated that the purpose of reservation is not to
distribute largesse, but to create empowerment among the disadvantaged. The test is,
therefore, “adequacy”, not mechanical over-empowerment, which must be constantly
maintained. Learned senior counsel also emphasized that the provisions contained in
Article 16 (4) (a) and (b) of the Constitution of India are all enabling provisions and subject
to (a) creamy layer, (b) 50% cap (c ) compelling reasons and (d) proportionality. In the
present case, the State has failed to give any details with regard to adequacy of
representation. Finally, learned senior counsel submitted that reservation in favour of
women is even otherwise violative of Article 16 (2) of the Constitution of India.
       29. On the other hand, Mr. Dwivedi, learned senior counsel appearing on behalf of
the respondents submitted that in fact no cause of action has arisen in favour of the
appellants. All of them are qualified candidates who did not make it to the final select list
on the basis of comparative merit. He then submitted that in fact the selected candidates
who are likely to be affected, have not been made parties. It has also been submitted that
in any case, no relief can be granted to the appellants, at this stage as all the posts had
already been filled. Therefore, the submissions made by the appellants are merely an
academic exercise. According to him, the Division Bench has correctly interpreted Section 3
of the Act of 1994. He further submits, by the suggested interpretation, the appellants seek
to add the words from Section 8 to sub-section (6) of Section 3. There is no relaxation in the
qualifications. The concession is only in the matter of fee and the age which pertains only to
eligibility of a candidate to apply for the post. The criteria for selection for all the candidates
is identical, which has not been lowered, by the concessions/relaxations in fee and age.
Under Section 3(6), the candidate even though belonging to a reserved category is entitled
to be treated as a General Category Candidate. According to Mr. Dwivedi, the Division
Bench has correctly observed that taking advantage of fee concession or age relaxation
would not be a bar for the reserved category candidates to be treated as general category
candidates. They can be taken out of General Category only as an exception, i.e. if their
standard is lowered. On the other hand, if by relaxation, the reserved category candidate
gets no advantage, he cannot be compartmentalized. The judgment relied upon by the
appellants in K.L.Narsimhan (supra) has been over-ruled in the subsequent judgment of this
Court in the case of Faculty Association (supra). Once the judgment is over-ruled, it cannot
be argued that it is only partly over-ruled. Learned senior counsel also submitted that the
particular sentence relied upon by learned senior counsel appearing on behalf of the
appellants in the case of K.L.Narsimhan (supra) is a stray observation and cannot be
treated as an authoritative pronouncement or a precedent. In any event, according to him,
in the case of K.L.Narsimhan (supra), the issue of relaxation in age or fee was not
considered. In the case of Satya Prakash (supra), it has been clearly held that candidates
who have been recommended without resorting to the relaxed standard shall not be
adjusted against the vacancies reserved for Scheduled Castes, Scheduled Tribes and Other
Backward Classes. According to the learned senior counsel, even Indra Sawhney case
(supra) only lays down the meaning of “Reservation” in terms of Article 16 (4) of the
Constitution of India.
        30. SLP (C ) Nos.14078-80 of 2008 have been filed by the State of U.P. challenging
the common final judgment of the Division Bench dated 22.12.2006 and the final order
dated 18.12.2007 declining to modify or recall the earlier judgment dated 22.12.2006. In
support of the appeals, Mr. Dinesh Dwivedi, learned senior counsel submitted that the
learned Single Judge of the High Court had taken notice of the fact that total posts of SICP
were 1231 (male) + 148 (female). 2% posts were reserved for sports persons. Therefore, 29
posts of SICP and 5 posts of PC were earmarked for Sports Quota. Since 608 male
candidates belonging to the General Category were selected, 67 posts of General category
were available for women. However, only 15 candidates had been selected. Therefore, 52
posts were filled up on merit from male candidates in accordance with the Government
Order dated 26.2.1999. Therefore, it was noticed by the learned Single Judge that no post
in General Category was vacant. Having come to the aforesaid conclusion, the learned
Single Judge had wrongly issued the directions in the final paragraph of the judgment to
recalculate the number of posts of General Category candidates by applying 2% reservation
for Sportsmen horizontally and adding 2% posts of sportsmen also while calculating the
total number of vacancies of General Category candidates. This direction had been
challenged by the State and the Director General of Police in Special Appeal Nos.910 of
2005 and 592 of 2006. In spite of the aforesaid categoric finding of the learned Single
Judge, that there were no vacant posts, the Division Bench concluded that the vacancies
which were left unfilled were carried forward for next selection, instead of filling in from the
General Category of male candidates. In fact Government Order dated 26.2.1999 was fully
complied with. According to the learned senior counsel, the direction issued by the Division
Bench to fill up the unfilled vacancies reserved for women candidates and sportsmen from
suitable candidates of respective categories has been issued without taking into account
that all the vacant posts have been filled, in accordance with the Government Order. The
Division Bench has failed to appreciate that no unfilled posts reserved for women and the
Sportsmen quota have been carried forward.
       31. Dr. Rajeev Dhawan, learned senior counsel reiterated the sub-missions made by
Mr.L.N. Rao. According Dr.Dhawan the judgment in the case of K.L.Narsimhan (supra) has
only been partly over-ruled in one case. The aforesaid Judgment had decided three appeals
by a common judgment, therefore, the reasoning of the judgment is still intact and would
be applicable to the facts and circumstances of the present case. Since the reserved
category candidates have been given relaxation in the age and the fee, the same would fall
within the group right of reservation under Article 16 (4) of the Constitution of India.
Learned senior counsel reiterated that once a candidate takes advantage of
reservation/concessions under Article 16 (4) of the Constitution of India, he/she cannot be
permitted to be appointed against the seat meant for the General Category. According to
the learned senior counsel, all parts of Section 3 of the Act of 1994 talk of group rights.
There cannot be an exit from reservation, once a benefit is taken. In other words, a
candidate covered under Article 16 (4) of the Constitution of India cannot also be a
candidate under Article 16 (1) of the Constitution of India.
       32. We have considered the submissions made by the learned counsel for the
parties.
       33. The core issue in the writ petitions was with regard to filling up the General
Category posts by candidates belonging to the reserved category candidates on their
obtaining more marks than the last candidate in the General Category. The submissions
made by the learned counsel for the appellants are all over-lapping. Reference to case law
is also common. In our opinion, it is not necessary to consider the larger issues raised by
the learned counsel for the parties with regard to the nature and extent of reservation.
These issues have been dilated upon by this Court in numerous judgments. The Division
Bench in the impugned judgment has traced the history of reservation at considerable
length. It has also distinguished between vertical and horizontal reservations. It has also
correctly concluded that in case of horizontal reservation, the carry forward rule would not
be applicable. All these issues are no longer res integra, in view of the authoritative
judgment rendered in the case of Indra Sawhney (supra). It can also be no longer disputed
that reservation under Article 16 (4) of the Constitution of India aims at group
backwardness. It provides for group right. Article 16 (1) of the Constitution of India
guarantees equality of opportunity to all citizens in matters relating to employment.
However, in implementing the reservation policy, the State has to strike a balance between
the competing claims of the individual under Article 16(1) and the reserved categories
falling within Article 16(4). A Constitution Bench of this Court in the case of Indra Sawhney
case (supra), this Court reiterated the need to balance the Fundamental Right of the
individual under Article 16(1) against the interest and claim of the reserve category
candidates under Article 16(4) of the Constitution.
         “It needs no emphasis to say that the principal aim of Article 14 and 16 is equality
         and equality of opportunity and that Clause (4) of Article 16 is but a means of
         achieving the very same objective. Clause (4) is a special provision though not an
         exception to Clause (1). Both the provision have to be harmonized keeping in mind
         the fact that both are but the restatements of the principle of equality enshrined in
         Article 14. The provision under Article 16(4) conceived in the interest of certain
         sections of society - should be balanced against the guarantee of equality enshrined
         in Clause (1) of Article 16 which is a guarantee held out to every citizen and to the
         entire society. If is relevant to point out that Dr. Ambedkar himself contemplated
         reservation being “confined to a minority of seats” (see his speech in Constituent
         Assembly, set out in para 28). No other member of the Constituent Assembly
         suggested otherwise. It is thus, clear that reservation of a majority of seats were
         never envisaged by the found Fathers. Nor are we satisfied that the present context
         requires us to depart from that concept.”
       34. In PGI MER v. Faculty Association (supra in para 32 the same principle was
reiterated as under:
         “32. Articles 14, 15 and 16 including Articles 16(4), 16(4-A) must be applied in
                  such a manner so that the balance is struck in the matter of appointments
                  by creating reasonable oppor-tunities for the reserved classes and also for
                  the other members of the community who do not belong to reserved
                  classes. Such view has been indicated in the Constitution Bench decisions of
                  this Court in Balaji case, Devendasan case and Sabharwal case. Even in
                  Indra Sawhney case the same view has been held by indicating that only a
                  limited reservation not exceeding 50% is permissible. It is to be appreciated
                  that Article 15(4) is an enabling provision like Article 16(4) and the
                  reservation under either provision should not exceed legitimate limits. In
                  making reservations for the backward classes, the State cannot ignore the
                  funda-mental rights of the rest of the citizens. The special provision under
                  Article 15(4) [sic 16(4)] must, therefore, strike a balance between several
                  relevant considerations and proceed objectively. In this connection
                  reference may be made to the decisions of this Court in State of A.P. v. USV
                  Balram and A. Rajendran v. Union of India, it has been indicated in Indra
                  Sawhney case that Clause (4) of Article 16 is not in the nature of an
                  exception to Clauses (1) and (2) of Article 16 but an instance of
                  classification permitted by Clause (1). It has also been indicated in the said
                  decision that Clause (4) of Article 16 does not cover the entire field covered
                  by Clauses (1) and (2) of Article 16. In Indra Sawhney case this Court has
                  also indicated that in the interests of the backward classes of citizens, the
                  State cannot reserve all the appoint-ments under the State or even a
                  majority of them. The doctrine of equality of opportunity in Clause (1) of
                  Article 16 is to be reconciled in favour of backward classes under Clause (4)
                  of Article 16 in such a manner that the latter while serving the cause of
                  backward classes shall not unreasonably encroach upon the field of
                  equality.”
       35. These observations make it abundantly clear that the reservations should not be
so excessive as to render the Fundamental Right under Article 16(1) of the Constitution
meaningless. In Indra Sawhney (supra), this Court has observed as under:
         “In our opinion, however, the result of application of carry-forward rule, in whatever
         manner it is operated, shall not result in breach of 50% rule.”
       36. Therefore, utmost care has to be taken that the 50% maximum limit placed on
reservation in any particular year by this Court in Indra Sawhney case (supra) must be
maintained. It must further be ensured that in making reservations for the members of the
Scheduled Castes and Scheduled Tribes, the maintenance of the efficiency of
administration is not impaired.
       37. It is in this context, we have to examine the issue as to whether the relaxation in
fee and upper age limit of five years in the category of OBC candidates would fall within the
definition of “reservation” to exclude the candidates from open competition on the seats
meant for the General Category Candidates. Taking note of the submissions, the Division
Bench has concluded by considering questions 1, 2 and 3 that concession in respect of age,
fee etc. are provisions pertaining to eligibility of a candidate to find out as to whether he
can appear in the competitive test or not and by itself do not provide any indicia of open
competition. According to the Division Bench, the competition would start only at the stage
when all the persons who fulfill the requisite eligibility conditions, namely, qualification, age
etc. are short-listed. We are of the opinion that the conclusion reached by the Division
Bench on the issue of concessions and relaxations cannot be said to be erroneous.
       38. The selection procedure provided the minimum age for recruit-ment as 21 years
and the maximum age of 25 years on the cut off date. Relaxation of age for various
categories of candidates in accordance with the Government Orders issued from time to
time was also admissible. This included five years‟ relaxation in age to Scheduled Caste,
Scheduled Tribes, Other Backward Classes and dependents of Freedom Fighters. Relaxation
of age was also provided in case of Ex-servicemen. The period of service rendered in Army
would be reduced for computing the age of the Ex-Army personnel. After deducting the
period of service they had rendered in the Army, they would be deemed eligible. These
were mere eligibility conditions for being permitted to participate in the selection process.
Thereafter, the candidates had to appear in a Preliminary Written Test. This consisted of
300 maximum marks and the candidates were required to secure 50% or more marks to
participate in the further selection process. Thereafter, the candidates had to undergo
physical test consisting of 100 marks. Again a candidate was required to secure at least
50% or more marks. It is not disputed before us that the standard of selection in the
Preliminary Written Test and the Physical Test was common to all the candidates. In other
words, the standard was not lowered in case of the candidates belonging to the reserved
category. The Preliminary Written Test and the Physical Test were in the nature of qualifying
examinations to appear in the Main Written Test. The marks obtained in the Preliminary
Written Examination and the Physical Test were not to be included for determination of
final merits. It was only candidates who qualified in the preliminary written test and the
physical test that became eligible to appear in the main written test which consisted of 600
marks. As noticed earlier, this had two papers General Hindi, General Knowledge and
Mental Aptitude Test. A candidate who secured 40% or above would be declared successful
in the written test. Thereafter, the candidates were to appear for interview of 75 marks. The
final merit list would be prepared on the basis of merit secured in the main written test and
the interview. Candidates appearing in the merit list, so prepared, would be declared
selected. It is common ground that more than 50,000 candidates appeared in the
preliminary written test. Upon declaration of the result on 22.9.2000, only 3,325
candidates were found successful. Thereafter, the physical test which was conducted from
29.10.2000 to 6.11.2000 reduced the successful candidates to 1454. It was these 1454
candidates who sat in the main written test held on 29.4.2001. Upon declaration of result,
1178 candidates were declared successful. The candidates who were successful in the
written test were subjected to an interview between 18.6.2001 to 1.7.2001. The final result
published on 6.7.2001 declared only 1006 candidates successful.
       39. In view of the aforesaid facts, we are of the considered opinion that the
submissions of the appellants that relaxation in fee or age would deprive the candidates
belonging to the reserved category of an opportunity to compete against the General
Category Candidates is without any foundation. It is to be noticed that the reserved category
candidates have not been given any advantage in the selection process. All the candidates
had to appear in the same written test and face the same interview. It is, therefore, quite
apparent that the concession in fee and age relaxation only enabled certain candidates
belonging to the reserved category to fall within the zone of consideration. The concession
in age did not in any manner tilt the balance in favour of the reserved category candidates,
in the preparation of final merit/select list. It is permissible for the State in view of Articles
14, 15, 16 and 38 of the Constitution of India to make suitable provisions in law to
eradicate the disadvantages of candidates belonging to socially and educationally
backward classes. Reservations are a mode to achieve the equality of opportunity
guaranteed under Article 16 (1) of the Constitution of India. Concessions and relaxations in
fee or age provided to the reserved category candidates to enable them to compete and
seek benefit of reservation, is merely an aid to reservation. The concessions and relaxations
place the candidates at par with General Category candidates. It is only thereafter the merit
of the candidates is to be determined without any further concessions in favour of the
reserved category candidates. It has been recognized by this Court in the case of Indra
Sawhney (supra) that larger concept of reservation would include incidental and ancillary
provisions with a view to make the main provision of reservation effective. In the case of
Indra Sawhney (supra), it has been observed as under:
       “743. The question then arises whether Clause (4) of Article 16 is exhaustive of
                the topic of reservations in favour of backward classes. Before we answer
                this question, it is well to examine the meaning and content of the
                expression “reservation”. Its meaning has to be ascertained having regard to
                the context in which it occurs. The relevant words are “any provision for the
                reservation of appointments or posts”. The question is whether the said
                words contemplate only one form of provision namely reservation
                simplicitor, or do they take in other forms of special provisions like
                preferences, concessions and exemptions. In our opinion, reservation is the
                highest form of special provision, while preference, concession and
                exemption are lesser forms. The constitu-tional scheme and context of
                Article 16 (4) induces us to take the view that larger concept of reservations
                takes within its sweep all supplemental and ancillary provisions and
                relaxations, consistent no doubt with the requirement of maintenance of
                efficiency of administration the admonition of Article 335. The several
                concessions, exemptions and other measures issued by the Railway
                Administration and noticed in Karamchari Sangh are instances of
                supplementary, incidental and ancillary provisions made with a view to
                make the main provision of reservation effective i.e., to ensure that the
                members of the reserved class fully avail of the provision for reservation in
                their favour.....”
       40. In our opinion, these observations are a complete answer to the submissions
made by Mr. L.N. Rao and Dr. Rajiv Dhawan on behalf of the petitioners.
       41. We are further of the considered opinion that the reliance placed by Mr.Rao and
Dr.Dhawan on the case of K.L.Narsimhan (supra) is misplaced. Learned senior counsel had
relied on the following observations:
          “5. .....Only one who does get admission or appointment by virtue of relaxation
                of eligibility criteria should be treated as reserved candidate.”
       42. The aforesaid lines cannot be read divorced from the entire paragraph which is
as under:
          “5. It was decided that no relaxation in respect of qualifications or experience
                would be recommended by Scrutiny Committee for any of the applicants
                including candidates belonging to Dalits and Tribes. In furtherance thereof,
                the faculty posts would be reserved without mentioning the specialty; if the
                Dalit and Tribe candidates were available and found suitable, they would be
                treated as reserved candidates. If no Dalit and Tribe candidate was found
                available, the post would be filled from general candidates; otherwise the
                reserved post would be carried forward to the next year/advertisement. It is
                settled law that if a Dalit or Tribe candidate gets selected for admission to a
                course or appointment to a post on the basis of merit as general candidate,
                he should not be treated as reserved candidate. Only one who does get
                admission or appointment by virtue of relaxation of eligibility criteria should
                be treated as reserved candidate.”
       43. These observations make it clear that if a reserved category candidate gets
selected on the basis of merit, he cannot be treated as a reserved candidate. In the present
case, the concessions availed of by the reserved category candidates in age relaxation and
fee concession had no relevance to the determination of the inter se merit on the basis of
the final written test and interview. The ratio of the aforesaid judgment in fact permits
reserved category candidates to be included in the General Category Candidates on the
basis of merit.
       44. Even otherwise, merely quoting the isolated observations in a judgment cannot
be treated as a precedent de hors the facts and cir-cumstances in which the aforesaid
observation was made. Considering a similar proposition in the case of Union of India &
Ors. v. Dhanwanti Devi and others, 1996 (6) SCC 44, this Court observed as follows:
          “9. ........ It is not everything said by a Judge while giving judgment that
                constitutes a precedent. The only thing in a Judge‟s decision binding a party
                is the principle upon which the case is decided and for this reason it is
                important to analyse a decision and isolate from it the ratio decidendi. A
                decision is only an authority for what it actually decides. What is of the
                essence in a decision is its ratio and not every observation found therein nor
                what logically follows from the various observations made in the judgment.
                It would, therefore, be not profitable to extract a sentence here and there
                from the judgment and to build upon it because the essence of the decision
                is its ratio and not every observation found therein. It is only the principle
                laid down in the judgment that is binding law under Article 141 of the
                Constitution.”
       45. In the case of State of Orissa & Ors. v. Md. Illiyas reported in 2006 (1) SCC 275,
the Supreme Court reiterates the law, as follows:
         “12. ............ Reliance on the decision without looking into the factual background
                of the case before it, is clearly impermissible. A decision is a precedent on
                its own facts. Each case presents its own features. It is not everything said
                by a Judge while giving judgment that constitutes a precedent. A decision is
                an authority for what it actually decides. What is of the essence in a decision
                is its ratio and not every observation found therein nor what logically flows
                from the various observations made in the judgment. The enunciation of the
                reason or principle on which a question before a Court has been decided is
                alone binding as a precedent. A case is a precedent and binding for what it
                explicitly decides and no more. The words used by Judges in their judgments
                are not to be read as if they are words in an Act of Parliament.”
       46. We may now examine the ratio in Narasimhan case (supra) keeping in view the
aforesaid principles. On 16.11.1990 an advertisement was issued by Post Graduate
Institute of Medical Education and Research (hereinafter referred to as „PGI‟) relating to
recruitment to the post of Assistant Professor; out of 12 posts, 8 was reserved for
Scheduled Caste and 4 posts were reserved for Scheduled Tribes. Since all the available
posts were sought to be filled on the basis of reservation, the same were challenged in two
writ petitions in the Punjab and Haryana High Court, Chandigarh. Both the writ petitions
were allowed by the learned Single Judge. It was held that the post of Assistant Professor in
various disciplines is a single post cadre; reservation for Scheduled Caste and Scheduled
Tribes would amount to 100% reservation; accordingly, it is unconstitutional. The said writ
petition pertained to admission to Doctoral courses and Ph.D. programme. This was also
allowed by the learned Single Judge on the ground that admission to the aforesaid courses
on the basis of reservation, undermines efficiency and is detrimental to excellence,
rendering it unconstitutional. Appeals against the Judgments of the learned Single Judge
were dismissed by the High Court. Therefore, three appeals had been filed in this Court. Two
issues involved therein were (a) whether reservation in appointment to the post of Assistant
Professors in various disciplines in the PGI is violative of Articles 14 and 16(1) of the
Constitution of India; and (b) whether there could be reservation in admission to the
Doctoral courses and Ph.D. programmes. A number of posts of Assistant Professor in
diverse disciplines had been advertised. It was not in dispute that the post of Assistant
Professor in each Department was a single post cadre, but carried the same scale of pay
and grade in all disciplines. It was also not disputed that the posts in different
specialties/super-specialties prescribed distinct and different qualifications. The posts were
also not transferable from one specialty to another, however, the PGI had clubbed all the
posts of Assistant Professor for the purpose of reservation in view of the fact that they are
in the same pay scale and have same designation. The High Court had allowed the writ
petition by relying on Judgment of this Court in Chakradhar Paswan (Dr.) v. State of Bihar,
(1998) 2 SCC 214. The ratio in the aforesaid Judgment was distinguished on the basis of
the judgment in Union of India v. Madhav, (1997) 2 SCC 332. The aforesaid judgment was
reviewed by a larger Bench of five Judges of this Court in the case of Post Graduate Institute
of Medical Education and Research, Chandigarh v. Faculty Association and others, (1998) 4
SCC 1. On behalf of the review petitioners it was contended that judgment in Narasimhan
case (supra) cannot be supported as in Madhav case (supra) the ratio in the decision of
Arati Ray Chaudhary v. Union of India, 1974 (1) SCC 87, was wrongly appreciated and the
ratio was wrongly stated. On the other hand, it was submitted by the learned Solicitor
General that the judgment in Madav case (supra) indicated the correct principle by giving
very cogent reasons. Therefore, no interference is called for against the decision in Madhav
case (supra) and the other decisions rendered by following the decision. Upon consideration
of the rival submissions, it was observed as follows:
         “29. In Madhav case in support of the view that even in respect of single post
                cadre reservation can be made for the back-ward classes by rotation of
                roster, the Constitution Bench decision in Arati Ray Chaudhary case has
                been relied on. We have already indicated that in Arati case the Constitution
                Bench did not lay down that in single post cadre, reservation is possible with
                the aid of roster point. The Court in Arati case considered the applicability of
                roster point in the context of plurality of posts and in that context the
                rotation of roster was upheld by the Constitution Bench. The Constitution
                Bench in Arati case had made it quite clear by relying on the earlier
                decisions of the Constitution Bench in Balaji case and Devadasan case that
                100% reservation was not permissible and in no case reservation beyond
                50% could be made. Even the circular on the basis of which appointment
                was made in Arati Ray Chaudhary case was amended in accordance with
                the decision in Devadasan case. Therefore, the very premise that the
                Constitution Bench in Arati case has upheld reser-vation in a single post
                cadre is erroneous and such erroneous assumption in Madhav case has
                been on account of misreading of the ratio in Arati Ray Chaudhary case. It
                may be indicated that the latter decision of the Constitution Bench in R.K.
                Sabharwal case has also proceeded on the footing that reservation in roster
                can operate provided in the cadre there is plurality of post. It has also been
                indicated in Sabharwal decision that the post in a cadre is different from
                vacancies.
       47. From the above it becomes evident that the very premise on the basis of which
Madhav case was decided has been held to be erroneous. Thereafter it is further observed
in paragraph 30 that “it also appears that the decision in Indra Sawhney case has also not
been properly appreciated in Madhav decision.” The conclusion of the judgment is given in
paragraph 37 which is as under:
         “37. We, therefore, approve the view taken in Chakradhar case that there cannot
                be any reservation in a single post cadre and we do not approve the
                reasonings in Madhav case, Brij Lal Thakur case and Bageshwari Prasad
                case upholding reservation in a single post cadre either directly or by device
                of rotation of roster point. Accordingly, the impugned decision in the case of
                Post Graduate Institute of Medical Education & Research, Chandigarh is,
                therefore, allowed and the judgment dated 2.5.1997 passed in Civil Appeal
                No.3175 of 1997 is set aside.”
       48. Since the judgment and reasoning in Narasimhan case (supra) were based on the
reasoning in Madhav case (supra), we are unable to accept the submissions of the learned
counsel for the appellants that the reasoning in the aforesaid Judgment is still intact,
merely because review was filed only in one appeal out of three. The judgment in
Narasimhan case (supra) having been set aside, we are unable to accept the submissions
of the learned senior counsel that the reasoning would still be binding as a precedent.
       49. Mere reference to the Judgment in the cases of Dr. Preeti Srivastava; Bharati
Vidyapeet; and Gopal D. Tirthani and others (supra) would not re-validate the reasoning
and ratio in Narasimhan case (supra) which has been specifically set aside by the larger
Bench in Faculty Association case (supra). We are, therefore, of the opinion that the
reliance placed upon the observations in Narasimhan case (supra) is wholly misconceived.
       50. In any event the entire issue in the present appeals need not be decided on the
general principles of law laid down in various judgments as noticed above. In these matters,
we are concerned with the interpretation of the 1994 Act, the instructions dated 25.3.1994
and the G.O. dated 26.2.1999. The controversy herein centres around the limited issue as
to whether an OBC who has applied exercising his option as a reserved category candidate,
thus, becoming eligible to be considered against a reserved vacancy, can also be
considered against an unreserved vacancy if he/she secures more marks than the last
candidate in the general category.
       51. The State Legislature enacted the U.P. Public Service (Reservation for Scheduled
Castes and Scheduled Tribes) Act, 1993 (hereinafter referred to as the „Act of 1993‟). It was
soon replaced by the U.P. Public Services (Reservation for Scheduled Castes, Scheduled
Tribes and Other Backward Classes) Ordinance, 1994. This was to provide a comprehensive
enactment for Scheduled Castes, Scheduled Tribes and OBCs. The Ordinance was replaced
by the Act of 1994 which came into force w.e.f. 11.12.1993. Section 2 (c) of this Act
defines public service and posts as the service and post in connection with the affairs of the
State and includes services and posts in local authority, cooperative societies, statutory
bodies, Government companies, educational institutions owned and controlled by the State
Government. It also includes all posts in respect of which reservation was applicable by
Government Orders on the commencement of the Act. Section 3 of the Act of 1994 makes
provisions with regard to the reservation in favour of Scheduled Castes, Scheduled Tribes
and Other Backward Classes. Section 3 of the Act of 1994 provides as under:
  “3.    Reservation in favour of Scheduled Castes, Scheduled Tribes and Other
         Backward Classes.—(1) In Public Services and Posts, there shall be reserved
         at the stage of direct recruit-ment, the following percentage of vacancies to
         which recruitments are to be made in accordance with the roster referred to
         in sub-section (5) in favour of the persons belonging to Scheduled Castes,
         Scheduled Tribes and Other Backward Classes of citizens.
 (a)     in the case of Scheduled Castes Twenty-one percent;
 (b)     in the case of Scheduled Tribes Two per cent;
  (c)    in the case of other backward classes of citizen Twenty Seven percent;
         Provided that the reservation under Clause (c) shall not apply to the category
         of other backward classes of citizens specified in Schedule II.
   (2) If, even in respect of any year of recruitment, any vacancy reserved for any
         category of persons under sub-section (1) remains unfilled, special
         recruitment shall be made for such number of times, not exceeding three,
         as may be considered necessary to fill such vacancy from amongst the
         persons belonging to that category.
   (3) If, in the third such recruitment, referred to in sub-section (2), suitable
         candidates belonging to the Scheduled Tribes are not available to fill the
         vacancy reserved for them, such vacancy shall be filled by persons
         belonging to the Scheduled Castes.
   (4) Where, due to non-availability of suitable candidates any of the vacancies
         reserved under sub-section (1) remains unfilled even after special
         recruitment referred to in sub-section (2), it may be carried over to the next
         year commencing from first of July, in which recruitment is to be made,
         subject to the condition that in that year total reservation of vacancies for all
         categories of persons mentioned in sub-section (1) shall not exceed fifty one
         per cent of the total vacancies.
   (5) The State Government shall, for applying the reservation under sub-section
         (1), by a notified order, issue a roster which shall be continuously applied till
         it is exhausted.
   (6) If a person belonging to any of the categories mentioned in sub-section (1)
         gets selected on the basis of merit in an open competition with general
         candidates, he shall not be adjusted against the vacancies reserved for such
         category under sub-section (1).
   (7) If on the date of commencement of this Act, reservation was in force under
         Government Orders for appointment to posts to be filled by promotion, such
         Government Orders shall continue to be applicable till they are modified or
         revoked.”
Section 8 of the Act of 1994 reads as under:
   “8. Concession and relaxation.—(1) The State Government may, in favour of the
         categories of persons mentioned in sub-section (1) of Section 3, by order,
         grant such concessions in respect of fees for any competitive examination
         or inter-     view and relaxation in upper age limit, as it may consider
         necessary.
   (2) The Government orders in force on the date of commence-ment of this Act,
         in respect of concessions and relaxations, including concession in fees for
         any competitive examination or interview and relaxation in upper age limit
         and those relative to reservation in direct recruitment and promotion, in
                 favour of categories of persons referred to in sub-section (1), which are not
                 inconsistent with the provisions of this Act, shall continue to be applicable
                 till they are modified or revoked, as the case may be.”
       52. Schedule II gives a list of category of persons to whom reservation under Section
3 (1) would not be available, as they fall within the category of persons commonly known as
“creamy layer”. A perusal of Section 3 (1) would show that it provides for reservation in
favour of the categories mentioned therein at the stage of direct recruitment. The
controversy between the parties in these appeals is limited to sub-section (6) of Section 3
and Section 8 of the 1994 Act. It was strenuously argued by Mr. Rao and Dr. Rajeev
Dhawan that Section 3 (6) of the Act of 1994 does not permit the reserved category
candidates to be adjusted against general category vacancies who had applied as reserved
category candidate. In the alter-native, learned counsel had submitted that at least such
reserved category candidate who had appeared availing relaxation of age available to
reserved category candidates cannot be said to have competed at par in Open Competition
with General category candidates, and therefore, cannot be adjusted against the vacancies
meant for General Category Candidates. We are of the considered opinion that the
concessions falling within Section 8 of the Act of 1994 cannot be said to be relaxations in
the standard prescribed for qualifying in the written examination. Section 8 clearly provides
that the State Government may provide for concessions in respect of fees in the
competitive examination or interview and relaxation in upper age limit. Soon after the
enforcement of the 1994 Act the Government issued instructions dated 25.3.1994 on the
subject of reservation for Scheduled Caste, Scheduled Tribe and other backward groups in
the Uttar Pradesh Public Services. These instructions, inter alia, provide as under:
          “4. If any person belonging to reserved categories is selected on the basis of
                 merits in open competition along with general candidates, then he will not
                 be adjusted towards reserved category, that is, he shall be deemed to have
                 been adjusted against the unreserved vacancies. It shall be immaterial that
                 he has availed any facility or relaxation (like relaxation in age limit) available
                 to reserved category.”
       53. From the above it becomes quite apparent that the relaxation in age limit is
merely to enable the reserved category candidate to compete with the general category
candidate, all other things being equal. The State has not treated the relaxation in age and
fee as relaxation in the standard for selection, based on the merit of the candidate in the
selection test, i.e. main written test followed by Interview. Therefore, such relaxations
cannot deprive a reserved category candidate of the right to be considered as a general
category candidate on the basis of merit in the competitive exam-ination. Sub-section (2) of
Section 8 further provides that Government Orders in force on the commencement of the
Act in respect of the concessions and relaxations including relaxation in upper age limit
which are not inconsistent with the Act continue to be applicable till they are modified or
revoked. Learned counsel for the appellants had submitted that in the present appeals, the
issue is only with regard to age relaxation and not to any other concessions. The vires of
Section 3 (6) or Section 8 have not been challen-ged before us. It was only submitted by the
learned senior counsel for the petitioners/appellants that age relaxation gives an undue
advantage to the candidate belonging to the reserved category. They are more experienced
and, therefore, steal a march over General Category candidates whose ages range from 21
to 25 years. It is not disputed before us that relaxation in age is not only given to members
of the Scheduled Castes, Scheduled Tribes and OBCs, but also the dependents of Freedom
Fighters. Such age relaxation is also given to Ex-servicemen to the extent of service
rendered in the Army, plus three years. In fact, the educational qualifications in the case of
Ex-servicemen is only intermediate or equivalent whereas for the General category
candidates it is graduation. It is also accepted before us that Ex-servicemen compete not
only in their own category, but also with the General category candidates. No grievance has
been made by any of the appellants/petitioners with regard to the age relaxation granted to
the Ex-servicemen. Similarly, the dependents of Freedom Fighters are also free to compete
in the General category if they secure more marks than the last candidate in the General
category. Therefore, we do not find much substance in the submission of the learned
counsel for the appellants that relaxation in age “queers the pitch” in favour of the reserved
category at the expense of the General category. In our opinion, the relaxation in age does
not in any manner upset the “level playing field”. It is not possible to accept the submission
of the learned counsel for the appellants that relaxation in age or the concession in fee
would in any manner be infringement of Article 16 (1) of the Constitution of India. These
concessions are provisions pertaining to the eligibility of a candidate to appear in the
competitive examination. At the time when the concessions are availed, the open
competition has not commenced. It commences when all the candidates who fulfill the
eligibility conditions, namely, qualifications, age, preliminary written test and physical test
are permitted to sit in the main written examination. With age relaxation and the fee
concession, the reserved candidates are merely brought within the zone of consideration,
so that they can participate in the open com-petition on merit. Once the candidate
participates in the written examination, it is immaterial as to which category, the candidate
belongs. All the candidates to be declared eligible had participated in the Preliminary Test
as also in the Physical Test. It is only thereafter that successful candidates have been
permitted to participate in the open competition.
        54. Mr. Rao had suggested that Section 3 (6) ensures that there is a level playing
field in open competition. However, Section 8 lowers the level playing field, by providing
concessions in respect of fees for any competitive examination or interview and relaxation
in upper age limit. We are unable to accept the aforesaid submission. Section 3 (6) is clear
and unambiguous. It clearly provides that a reserved category candidate who gets selected
on the basis of merit in open competition with general category candidates shall not be
adjusted against the reserved vacancies. Section 3(1), 3(6) and Section 8 are inter-
connected. Expression “open competition” in Section 3 (6) clearly provides that all eligible
candidates have to be assessed on the same criteria. We have already noticed earlier that
all the candidates irrespective of the category they belong to have been subjected to the
uniform selection criteria. All of them have participated in the Preliminary Written Test and
the Physical Test followed by the Main Written Test and the Interview. Such being the
position, we are unable to accept the submissions of the learned counsel for the
petitioners/appellants that the reserved category candidates having availed relaxation of
age are disqualified to be adjusted against the Open Category seats. It was perhaps to
avoid any further confusion that the State of U.P. issued directions on 25.3.1994 to ensure
compliance of the various provisions of the Act. Non-compliance by any Officer was in fact
made punishable with imprisonment which may extend to period of three months.
        55. In view of the above, the appeals filed by the General Category candidates are
without any substance, and are, therefore, dismissed.
        Civil Appeal Nos. of 2010
        (Arising out of SLP (C) NOS. 14078-80 of 2008 and 19100 of 2009)
        Leave granted.
        56. In the appeal filed by the State of U.P. it was submitted that against the 67 posts
of general category reserved for women only 15 qualified candidates were available. They
were duly selected. 52 posts, which remained unfilled, were filled up from the male
candidates in accordance with G.O. dated 26.2.1999. Therefore, there remained no unfilled
vacancy in the general category. Therefore, the Division Bench erred in coming to the
conclusion that 52 vacancies have been carried forward contrary to the aforesaid G.O. It
was further submitted that the learned Single Judge erred by directing the appellants to fill
up the vacancy which were excluded from 2% sports quota from the aforesaid selection.
According to the appellants, the advertisement clearly mentioned that the vacancies under
the sports quota shall be filled separately. Therefore, the learned Single Judge was not
justified in directing for filling up of these vacancies from this very selection. According to
Mr. Dwivedi, the entire factual position was placed before the learned Single Judge in the
counter affidavit which was duly noticed by the learned Single Judge as follows:
         “In the counter affidavit the respondents have given details per-taining to the
         candidates belonging to different categories who were finally selected and the
         percentage of reservation fixed according to number of posts. According to the
         respondents total posts for Sub-Inspector Civil Police were 1231 (male) + 148
         female (ten per cent posts were referred to be reserved for women). According to
         the respondents the advertisement for 1634 posts was published containing 1231
         male + 148 (female) Sub-Inspector Civil Police and 255 Platoon Commander. It was
         stated that according to the police of the State 2% posts were reserved for sports
         men hence against 1478 posts of Sub-Inspector 2%, i.e. 29 posts of Sub-Inspector
         were earmarked for sports men and five posts of Platoon Commander in sports
         quota. It was thus stated that 1350 posts were for Sub-Inspector civil police and
         250 posts were to be filled up by Platoon Commanders. The percentage of
         reservation against the aforesaid posts have been mentioned in paragraph 4 of the
         supplementary counter-affidavit which is extracted below.
           (1) Posts 1350 for Sub-Inspector, Civil Police
 Sl. No Caste/Class                Percentage      Male Female          Total           of
reservation                  10%
   1     General Caste                       50%           608       67         675
         (Unreserved)
   2             8 Backward                  27%            328      37        365
         Class (reserved)
   3             8 Scheduled                 21%            255              28       283
         Caste (reserved)
   4             84 Scheduled                2%                     24       03       027
         Tribe                      1005           1215 135         1350
   5             Dependent of                2%                     24               03
         27
         Freedom Fighters
   6             Ex-servicemen                      1%                      12              01
         13
           (2) 250 Posts for Platoon Commander, PAC
 Sl.No Caste/Class                               Percentage             Male
         of reservation
  1              General Caste                             50%          125
         (Unreserved)
  2     Backward                             27%                        67
         Class (reserved)
  3              8 Scheduled Caste                  21%                 53
  4      84 Scheduled                         2%                05
                           Tribe             100%                   250
         It has been stated in the supplementary counter affidavit that 608 male belonging
         to general category were selected, against 67 posts of general category for women
         only 15 women were available who were selected rest of 52 posts were filled up on
         merit from male candidates in accordance with the Government order dated
         26.2.1999. It was stated that the total 675 posts in general category were filled up
         and no post of general category is vacant. “
        57. Mr. Dwivedi further submits that the learned Single Judge took note of the
averments made in paragraph 4 of the supplementary counter affidavit, and yet issued a
direction to recalculate the number of posts of general category candidates by applying 2%
reservation for sportsmen horizontally and adding 2% posts of sportsmen also while
calculating the number of vacancy of general category candidates. Mr. Dwivedi further
submits that the learned Single Judge erred in holding that the Government order dated
26.2.1999 does not specifically provide that the post which are not filled up by women
candidates are to be filled up from the male candidates. The Division Bench was, therefore,
justified that the aforesaid view of the learned Single Judge was apparently erroneous and
inconsistent to the specific provisions contained in paragraph 4 of G.O. dated 26.2.1999.
The Division Bench, however, committed a factual error in recording the following
conclusion “we are constrained to hold that the authorities erred in law by leaving the
vacancies kept for reserved women candidates unfilled instead of selecting and
recommending suitable male candidates of respective category of the same selection”.
        58. Aggrieved against the aforesaid observations, the appellants sought review of the
aforesaid Judgment which has been erroneously dismissed by simply recording:
         “We have head Sri G.S. Upadhyay, learned standing counsel appearing for the
         applicant. It is submitted that this Court‟s observation at pages 65 and 66 in respect
         of vacancies reserved for women and sports quota which remain unfilled needs
         clarification. We are of the view that our Judgment is clear and it does not suffer
         from any ambiguity and thus does not require to be clarified or recalled.”
        59. As noticed earlier, Mr. L.N. Rao and Dr. Dhawan had submitted that the vacancies
reserved for women and for the outstanding sportsperson had to be filled by applying
“horizontal reservation”. No carrying forward of the vacancies was permissible.
        60. We have considered the submissions made by the learned counsel. It is accepted
by all the learned counsel for the parties that these vacancies had to be filled by applying
the principle of horizontal reservation. This was also accepted by the learned Single Judge
as well as by the Division Bench. This in consonance with the law laid down by this Court in
the case of Indra Sawhney case (supra):
        “812. We are also of the opinion that this rule of 50% applies only to reservations
                  in favour of backward classes made under Article 16(4). A little clarification
                  is in order at this juncture; all reservations are not of the same nature. There
                  are two types of reservations, which may, for the sake of convenience, be
                  referred to as „vertical reservations‟ and „horizontal reservations‟. The
                  reservations in favour of Scheduled Castes, Scheduled Tribes and other
                  backward classes [under Article 16(4)] may be called vertical reservations
                  whereas reservations in favour of physically handicapped [under clause (1)
                  of Article 16] can be referred to as horizontal reservations. Horizontal
                  reservations cut across the vertical reservations - what is called interlocking
                  reservations. To be more precise, suppose 3% of the vacancies are reserved
                  in favour of physically handicapped persons; this would be a reservation
                  relatable to clause (1) of Article 16. The persons selected against this quota
                 will be placed in the appropriate category; if he belongs to SC category he
                 will be placed in that quota by making necessary adjustments; similarly, if
                 he belongs to open competition (OC) category, he will be placed in that
                 category by making necessary adjustments. Even after providing for these
                 horizontal reservations, the percentage of reservations in favour of
                 backward class of citizens remains - and should remain the same. This is
                 how these reservations are worked out in several States and there is no
                 reason no to continue that procedure.”
        61. The aforesaid principle of law has been incorporated in the instructions dated
26.2.1999. Paragraphs 2 and 4 of the aforesaid instructions which are relevant are
hereunder:
           “2. The reservation will be horizontal in nature, i.e. to say that category for
                 which a woman has been selected under the aforesaid reservation policy
                 for posts for women in Public Services and on the posts meant for direct
                 recruitment under State Government, shall be adjusted in the same
                 category only;
                 xxxx     xxxx         xxxx     xxx
            4. If a suitable women candidate is not available for the post reserved for
                 women in Public Services and on the posts meant for direct recruitment
                 under State Government, then such a post shall be filled up from amongst a
                 suitable male candidate and such a post shall not be carried forward for
                 future;”
        62. The learned Single Judge whilst interpreting the aforesaid, has observed that it
does not specifically provide for posts which are not filled up by women candidates to be
filled up from the male candidates. This view is contrary to the specific provision contained
in Paragraph 4. The aforesaid provision leaves no matter of doubt that any posts reserved
for women which remain unfilled have to be filled up from amongst suitable male
candidates. There is a specific prohibition that posts shall not be carried forward for future.
Therefore, the view expressed by the learned Single Judge cannot be sustained.
        63. We may also notice here that in view of the aforesaid provisions, the State has
not carried forward any of the general category posts reserved for women and outstanding
sportspersons. Furthermore, all the posts remaining unfilled, in the category reserved for
women have been filled up by suitable male candidates, therefore, clearly no post has been
carried forward. Therefore the mandate in Indra Sawhney (supra) and the G.O. dated
26.2.1999, have been fully coupled with. We are also of the opinion that the conclusion
recorded by the Division Bench is without any factual basis. The factual position was
brought to the notice of Division Bench in the recall/modification application No.251407 of
2007. However, the recall/modification application was rejected. We are, therefore, of the
opinion that the Division Bench erred in issuing the directions to the appellants to fill in the
unfilled vacancies reserved for women candidates from suitable male candidates. This
exercise had already been completed by the appellant-State.
        64. As noticed earlier, the learned Single Judge despite taking note of the averments
made in the supplementary counter affidavit by the State, erroneously issued directions to
recalculate the vacancies reserved for outstanding sports persons. It was specifically
pointed out that a separate advertisement had been published for recruitment on the post
reserved for outstanding sportsperson. It was also pointed out that all the posts available in
the category of sportsmen were filled up in the subsequent selection. No post remained
unfilled. Therefore, the conclusion of the learned Single Judge that the (29 SICP) + (5 PC),
i.e. 34 posts ought not to have been deducted from the available 1478 posts for the
purposes of calculating the number of vacancies available to the general category, was
factually erroneous. It is not disputed before us that the principle of horizontal reservation
would also apply for filling up the post reserved for outstanding sportsperson. It is also not
disputed before us that there could have been no carry forward of any of the post remaining
unfilled in the category of outstanding sports-person. As a matter of fact, there was no carry
forward of the vacancies. They were filled in accordance with the various instructions issued
by the Government from time to time. In our opinion the Division Bench erred in law in
concluding that since the advertisement did not mention that a separate selection will be
held, for the post reserved for sportsmen, the same would not be permissible in law. The
deduction of 34 posts for separate selection would not in any manner affect the overall
ratio of reservation as provided by law. Furthermore, there is no carry forward of any post.
The separate selection is clearly part and parcel of the main selection. In view of the factual
situation, we are of the opinion, that the conclusions recorded by the learned Single Judge
and the Division Bench with regard to the 34 posts reserved for the outstanding sportsmen
category, i.e. (29 SICP) + (5 PC) also cannot be sustained.
       65. Therefore, the aforesaid appeals filed by the State and the Director General of
Police are allowed. The direction issued by the learned Single Judge in the final paragraph
as well as the directions issued by the Division Bench in modification of the order of learned
Single Judge are set aside.
                                                                           Appeals dismissed.



                                              [2010 (1) T.N.C.J. 437 (Mad)]
                                                  MADRAS HIGH COURT
BEFORE:
                C.S. KARNAN, J.
                                                             NATIONAL INSURANCE COMPANY LTD.                          ….Appellant
                                                              Versus
                                                                   D. BALU AND OTHERS                          ….Respondents
                        [C.M.A. No. 3107 of 2007, decided on 7th January, 2010]
          MotorVehiclesAct,1988—Section173—Motoraccident—Deathofeightmonths‟girlduetoaccident—Rashandnegligentactof
driverofvan—TribunalawardedRs.2,80,000/-ascompensationwith7.5%interestp.a.—Andapportioned50%tofirstpetitionerand50%to
second petitioner—Appeal against—Held, loss of income calculated by Tribunal at Rs. 2,25,000/- after deducting 1/3rd share for personal
expensescomestoRs.1,50,000/-—ForloveandaffectionRs.2,000/-grantedandforfuneralexpensesRs.10,000/-granted—Hence,award
of Rs.2,80,000/-asgrantedby Tribunalscaleddownto Rs. 1,80,000/- forthe reasonsclaimants are agedabout 30 years and22 years
respectivelyandsecondpetitionerhaspossibilityofbegettinganotherchild.
                                                                                                                  (Paras4,15and18)
          Case law.—2004 (1) TNMAC 172 (DB) ; I (2008) ACC 406 (SC) ; CDJ 2006 SC 953 ;
2007 ACJ 1860—referred.
          Counsel.—Mr. D. Bhaskaran, for the appellant, No appearance, 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 Decree, dated 18.4.2006, made in
M.C.O.P.No.1743 of 2004, on the file of the Motor Accident Claims Tribunal (First Additional
Sub-Court), Cuddalore, awarding a compensation of Rs.2,80,000/- with 7.5% interest per
annum, from the date of filing petition till the date of payment of compensation.
        2. Aggrieved by the said award and decree, the appellant/second respondent, The
National Insurance Co., Ltd., has filed the above appeal praying to set aside the said award
and decree.
        3. The short facts of the case are as follows:
        On 9.7.2004, at about 4.45 a.m. while the (deceased) girl was carried by her
grandmother from west to east direction at her extreme left hand side of the Panrutti-
Cuddalore Main Road, near Government Museum, the first respondent‟s van bearing
registration No.TN48 A9867 came from west to east direction in the same direction, at a
very high speed, in a rash and negligent manner and hit behind the (deceased) girl and
caused the accident.
        4. Due to the said accident, the (deceased) girl sustained grievous injuries and
multiple fractures all over her body and head. She was immediately taken to and admitted
in G.H. Cuddalore, but she succumbed to her injuries. The accident was caused only due to
the rash and negligent act of the driver of the first respondent vehicle bearing registration
No.TN48 A9867.
        5. The (deceased) girl was a hale and healthy at the time of the accident and she was
only eight months old. She is the only daughter of the petitioners. As such, the petitioners
have claimed a compensation of Rs.15,00,000/-, together with interest at the rate of 18%
per annum from the date of petition till the date of payment of compensation, from the first
and second respondents, who are the owner and the insurer, respectively, of the said
vehicle involved in the accident.
        6. Regarding the said accident, a criminal case was registered by the Cuddalore N.T.
Police as Crime No.450/2004.
        7. The second respondent, in his counter has resisted the claim denying the age,
legal heirship of the petitioners and the manner of the accident. It has been submitted that
on the date of accident, the first respondent‟s vehicle driver drove the vehicle in a moderate
speed and observing all the traffic rules and regulations and at that time the grandmother
of the (deceased) girl, who was carrying the (deceased) girl, suddenly crossed the road
unmindful of the oncoming vehicle and invited the accident. The accident occurred only due
to the carelessness and negligent act of the grandmother of the (deceased) girl.
        8. Further, it has been submitted that the first respondent‟s vehicle had not been
insured with the second respondent at the time of the accident and that the vehicle driver
also did not have a valid driving licence to drive the vehicle at the time of accident. Further,
it has been submitted that the consolidated claim of Rs.15,00,000/- made by the
petitioners is highly speculative and the failure to categorise the loss under specific heads
is against law and as such the petitioners should be estopped from making any claim under
specific heads in future. Further as the claim and interest are excessive and without any
basis, the second respondent has prayed for dismissal of the petition with costs.
        9. The Motor Accident Claims Tribunal framed three issues for the consideration
namely:
      (i)    Whose negligence was the cause for the accident to take place?
     (ii)    Was the first respondent‟s vehicle insured with the second respondent at the
             time of the accident and did the vehicle driver have a valid driving licence at the
             time of the accident?
    (iii)   Are the petitioners entitled to receive compensation? If so, who is liable to pay
            the compensation and what is the quantum of compensation, which the
            petitioners are entitled to get?
       10. On the petitioners side, the first petitioner, Balu, the father of the deceased girl,
was examined as P.W.2 and one Doctor Venugopal was examined as P.W.3 and nine
documents were marked as Exs.P1 to P9. On the respondents side, no witnesses were
examined and no documents were marked.
       11. The P.W.2, the first petitioner in his evidence has adduced that on 9.7.2004, at
4.45 a.m. the grandmother of his child had carried his child and that they were walking
near the Government Museum, Cuddalore, on the Panrutti-Cuddalore Main Road, on the left
side of the road from west to east; that the first respondent‟s van bearing registration
No.TN48 A9867, driven by its driver at a high speed and in a rash and negligent manner
had dashed against his child and caused the accident. In the accident, his child was
seriously injured and admitted at Government Hospital, Cuddalore and that in spite of
treatment, his child had succumbed to the injuries sustained by her. At the time of
accident, his daughter was aged only eight months; and as such the petitioners had
claimed a compensation of Rs.15,00,000/- under the heads of pain and suffering, mental
agony, loss of love and affection.
       12. An examination of Ex.P2-Motor Vehicle Inspector‟s Report reveals that the
accident did not happen due to mechanical defects in the said van involved in the accident.
The Tribunal on inspection of Ex.P1-the Complaint given by one Sumitha to the Cuddalore
Pudu Nagar Police, whereupon the Cuddalore Pudu Nagar Police had registered a Criminal
case as 450/2004, under Sections 279 and 304(A) of I.P.C as well as considering the
evidence of P.W.2 and P.W.1, the grandmother of the deceased, held that the accident had
been caused by the rash and negligent driving of the first respondent‟s driver.
       13. Though, it has been contended by the second respondent that it was the
negligent act of the grandmother of the child, who had suddenly crossed the road with the
child, which had caused the accident, no witnesses have been examined to prove this point.
Considering the above circum-stances, the Tribunal held that it was only the negligence of
the van driver, which had been the cause for the accident.
       14. Further, on scrutiny of Ex.P2-Motor Vehicle Inspector‟s Report, it is evident that
the said van of the first respondent had been insured with the second respondent at the
time of the accident and that the van driver had a valid driving licence at the time of the
accident. Further, no evidence has been let in by the second respondent, to prove that the
insurance policy taken for the said van was invalid and that policy conditions have been
breached. As such, the Tribunal held that the said van had been insured with the second
respondent and that the van driver had a valid driving licence, at the time of the accident.
       15. From an examination of Ex.P1-Post-Mortem Report of the deceased girl, it is
evident that her age was eight months at the time of the accident. The Tribunal on
considering provisions as per the second Schedule of the Motor Vehicles Act 163(A)(6),
pertinent to age of eight months, took the prospective income of the deceased girl as
Rs.15,000/- per annum. Adopting a multiplier of 15, the Tribunal assessed the loss of
income to the petitioners as Rs.15,000/-X15=Rs.2,25,000/- and awarded this amount to
the petitioners under the head of loss of income. Further, the Tribunal awarded a
compensation of Rs.25,000/- to the petitioners under the heads of loss of love and
affection and mental agony. For funeral expenses, the Tribunal awarded a sum of
Rs.5,000/- and in total the Tribunal awarded a com-pensation of Rs.2,80,000/- to the
petitioners together with interest at 7.5% per annum from the date of filing the petition till
the date of payment of compensation and directed the second respondent to deposit the
said award with accrued interest into the credit of the M.C.O.P.No.1743 of 2004, on the file
of the Motor Accident Claims Tribunal (First Additional Sub-Court), Cuddalore, within a
period of one month, from the date of its order. Further, it apportioned 50% of the award
with interest to the first petitioner and apportioned 50% of the award with interest to the
second petitioner. Further, the apportioned share of the award of the first and second
petitioners has to be invested in a nationalised bank for a period of three years and the
petitioners were permitted to receive the interest on such deposits, once in six months,
directly from the Bank. The petitioners were directed to pay the court fees for the award
within ten days from the date of its order. The Advocate fees was fixed as Rs.8,360/-.
       16. The learned counsel for the appellant in his appeal has contended that the
Tribunal had erred in holding that the driver of the second res-pondent‟s vehicle alone was
responsible for the accident; that the claimants/parents cannot be dependants of their
deceased eight months old baby; that the Tribunal erred in adopting multiplier method of
calculation for death of eight months old baby; that the Tribunal had erred in taking
Rs.15,000/- per annum as contribution and adopting 12 years multiplier to arrive at a
compensation of Rs.2,25,000/-; that the award of Rs.25,000/- to each claimant under the
head of pain and suffering is also not sustainable.
       17. The learned counsel for the appellant, in support of his contention has cited the
following judgments made in 2004 (1) TN MAC 172 (DB), High Court of Madras, Kokila &
another v. A.C. Rayan & another, the relevant head notes of which are as follows:
         “.....Deceased a minor girl aged 10 years studying in IIIrd standard—Accident caused
         due to rash and negligent act of driver of lorry—Deceased died at hospital after two
         days of accident—Claimants: Deceased‟s parents—Prayer for compensation of
         Rs.1,00,000/-—No dispute on side of respondents with regard to negligence—Inspite
         of such factual information, Tribunal granted compensation of Rs.25,000/-—Appeal
         for higher compensation—Contention that in view of Principles laid down by
         Supreme Court in Lata Wadhwa v. State of Bihar, 2001 ACJ 1735, particularly with
         reference to death of children between 5 and 10 and above 10 years, appellants
         are entitled for balance amount of Rs.75,000/-—Appellate Court of opinion that a
         compensation of Rs.50,000/- with further amount of Rs.25,000/-towards
         conventional figure would meet end of justice—Award of Tribunal modified—
         Enhanced compensation of Rs.50,000 to carry 9% interest from date of Petition.
       I (2008) ACC 406 (SC) Oriental Insurance Co., Ltd. v. Syed Ibrahim & Ors., the
relevant head notes of which are as follows:
         “.......Death of child aged 7 years—Claimants parents—Relevant factors is age of
         parents—Normal rule about deprivation of income not applicable—Where deceased
         was child he earns nothing but has prospect to earn—Assessment of compensation
         in such cases involves good deal of guesswork—Amount of Rs.51,500/- awarded by
         Tribunal as compensation, upheld—Motor Vehicles Act, 1988—Section 168.”
       CDJ 2006 SC 953, New India Assurance Co., Ltd. v. Satender & Others, the relevant
head notes of which are as follows:
         “........Auantum of Compensation—Held—In cases of young children of tender age, in
         view of uncertainities neither their income at the time of death nor the prospects of
         the future increase in their income nor chances of advancement of their career are
         capable of proper determination on estimate basis—The reason is that at such an
         early age, the uncertainities in regard to their academic pursuits, achieve-ments in
         career and thereafter advancement in life are so many that nothing can be
         assumed with reasonable certainty—Therefore, neither the income of the deceased
         child is capable of assessment on estimated basis nor the financial loss suffered by
         the parents capable of mathematical computation—Applying the principles
         indicated in Jasbir Kaur’s case (supra) to the facts of the present case we think
         award of sum of Rs.1,80,000/- would meet the ends of justice—The same shall
         carry interest at the rate of 7.5% from the date of filing petition till payment is
         made.”
       2007 ACJ 1870, Supreme Court of India, Kaushlya Devi v. Karan Arora and others,
the relevant head notes of which are as follows:
         “Quantum—Fatal accident—Deceased aged 14, brilliant student of class VIII—
         Claimants: father and mother—Deceased only son of his parents—Father filed claim
         before Tribunal, mother was joined as respondent and Tribunal awarded
         Rs.1,00,000 to be shared equally—Appeal by father was dismissed by High Court—
         Death of father—Appeal by mother for enhancement of compensation on the
         ground of family background of the deceased and his academic career—Apex Court
         upheld the award of Rs.1,00,000 taking into con-sideration death of father of the
         deceased.”
       18. For the foregoing reasons and facts and circumstances of the case and after
hearing the arguments advanced by the learned counsels on either side, the Court is of the
view that for a non-earning member, the notional income of Rs.15,000/- fixed by the
Tribunal is correct and the multiplier of 15 adopted by the Tribunal is also correct. As such,
the loss of income is calculated as Rs.15,000/- x 15=Rs.2,25,000/- and after deducting
1/3rd share for personal expenses, the loss of income incurred by the petitioners is
assessed at Rs.1,50,000/-. For love and affection, this Court grants an award of
Rs.20,000/- and Rs.10,000/- is granted for funeral expenses. In total, this Court grants an
award of Rs.1,80,000/- to the petitioners together with interest at the rate of 7.5% per
annum from the date of filing the petition till the date of payment, which is found to be fair
and equitable. The award of Rs.2,80,000/- granted by the Tribunal is scaled down as
Rs.1,80,000/- for the reason that the claimants are aged about 30 years and 22 years
respectively and as such the second petitioner has the possibility of begetting another child.
       19. At the time of admission, this Court directed the appellant/National Insurance
Company Ltd., to deposit the entire compensation award amount, into the credit of the
M.C.O.P.No.1743 of 2004, on the file of the Motor Accident Claims Tribunal (First Additional
Sub-Court), Cuddalore. The said conditional order was complied by the Insurance Company
as per records.
       20. Therefore, it is open to the respondents/claimants to withdraw their apportioned
share of the award amount i.e., Rs.90,000/- each of the claimants with accrued interest,
lying in the credit of the M.C.O.P.No.1743 of 2004, on the file of the Motor Accident Claims
Tribunal (First Additional Sub-Court), Cuddalore, after filing necessary application, in
accordance with law. Likewise, the appellant/Insurance Company is at liberty to withdraw
the excess compensation amount of a sum of Rs.1,00,000/- with accrued interest, after
observing Court formalities.
       21. In the result, the above civil miscellaneous appeal is partly allowed and
consequently, the award and decree passed by the Motor Accident Claims Tribunal (First
Additional Sub-Court), Cuddalore, in M.C.O.P.No.1743 of 2004 is modified. No costs.
                                                                        Appeal partly allowed.

                                [2010 (1) T.N.C.J. 444 (Mad)]
                                    MADRAS HIGH COURT
BEFORE:
           ELIPE DHARMA RAO AND T.S. SIVAGNANAM, JJ.
                                    C. RAJAMANICKAM                                                             ...Petitioner
                                                            Versus
THE TAMIL NADU REFORMS SPECIAL APPELLATE
                     TRIBUNAL SANTHOME, CHENNAI AND OTHERS                                                 ...Respondents
               [W.P. Nos. 15997 and 15998 of 1999, decided on 23 October, 2009]            rd


         Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1998—Sections 10(5), 12 and 83—Revision—Jurisdiction of Special
Tribunal—PowerofspecialTribunalisverywideandevenwithoutpetitionbeingfiledbydepartment,inordertoreview,Tribunalcanverywell
examinecorrectnessoforderspassedbyAuthorisedOfficerorlandTribunalwhileconsideringrevisionpetition.
            (Para12)
         Case law.—AIR 1982 SC 865—referred.
         Counsel.—Mr. T.R. Rajagopal, Senior Counsel for Mr. T.R. Rajaraman in both the
petitions, for the petitioner; Mrs. Malrvizhi Udayakumar Special Government Pleader, for the
respondents.
                                                           JUDGMENT
         T.S. SIVAGNANAM, J.—The above writ petitions have been filed by one C. Rajamanickam
against the common order dated 21.8.1998 in a Special Revision Petition Nos. 63 of 1992
and 6 of 1995 on the file of the Tamil Nadu Land Reforms Special Appellate Tribunal
(hereinafter referred as Special Tribunal). SRP No. 63 of 1992 was filed by C.
Rajamanickam under Section 83 of the Tamil Nadu Land Reforms (Fixation of Ceiling on
Land) Act, 581 of 1998 hereinafter referred to as the Act 58 of 1961, challenging the order
passed by the Land Tribunal in L.T.CMA No. 34 of 1990 dated 16.3.1992 which confirms
the order dated 12.12.1989 passed by the Authorized Officer (Land Reforms,
Tiruchirapalli). SRP No. 6 of 1995 was filed by the Director of Land Reforms under Sections
83 and 58 of 1961 to set aside the order passed by the Authorized Officer (Land Reforms),
Tiruchira-palli dated 14.5.1972.
         2. The facts, which led to the filing of the said revision petitions are follows:
         One Chockalingam Chettiar was the owner of the lands which are the subject matter
in the present case. The Authorized Officer determined the total holdings of the family as on
the crucial date i.e., 6.4.1960 and the total holdings of the family consisting of the land
owner and his wife as 56.774 acres. This determination was made after allowing the ceiling
of 30 standard acres for the family and 10 standard acres for his wife granting exemption
in respect of 1.78 standard acres. The Authorized Officer determined as surplus an extent
of 5.505 standard acres under Section I and 9.57.0 standard acres under Section VI and in
all 15.704 acres was determined as surplus. The land owner filed an appeal against such
determination which came to be dismissed by the Land Tribunal. The original land owner
died on 5.9.1964 and the wife and daughter of the original land owner filed the revision
petition before this Court in CRP No. 2508 of 1965 against the order of the Tribunal. This
Court, by order dated 8.1.1971 allowed the said Civil Revision Petition with the observation
that this Court in CRP 2286 of 1966 (Radhasamy Charitable Society, by its Secretary v. The
Authorised Officer, Cuddalore) held that „where a gift is made to a female member, only for
enjoyment of the property for life, without any power of alienation, such person cannot be
said to be a limited owner as defined in the Act and that the lands given to her for
enjoyment personally, cannot be taken to be the holding of that person for purpose of fixing
her ceiling area and for acquiring the excess‟. Based on the decision of this Court in CRP
2508 of 1965 dated 8.1.1971, the Authorized Officer fixed 5.504 standard acres as surplus
under Section 1. Subsequently, the Authorized Officer, by order dated 15.5.1972, observed
that this Court has taken the stand that the Authorized Officer is empowered to declare the
surplus lands under Section 10(5) and Section 12, only if the person is alive on the date of
preparation of final statement and that it is not sufficient if the person had been alive on
the notified date and that the Authorized Officer has no jurisdiction to fix the ceiling area of
a deceased person. Based on the said order, the Authorized Officer ordered further action to
be taken separately in respect of the persons on whom the properties of the deceased land
owner Chockalingam Chettiar have devolved. Based on such an order, fresh proceedings
were initiated under Act 17 of 1970 against the legal heirs of the deceased land owner. By
order dated 22.7.1973, the Authorized Officer held that since the land owner held only
8.095 standard acres, which is below the ceiling limit, further proceedings were dropped. It
is stated that the proceeding dated 22.7.1973 is the consequential proceeding to the
earlier order dated 15.5.1972. Thereafter, the case was reopened based on a judgment of
the Honorable Supreme Court in Bhikoba Shankar v. Mohan Lal Punchand, AIR 1982 SC
865. The Authorized Officer directed the deceased land owner to furnish a list of holdings
as on 6.4.1960 and notices were issued to the legal heirs, since the land owner‟s wife
passed away in the meantime. An order under Section 9(2)(b) of the Act was passed on
12.12.1989 and an extent of 15.070 standard acres was declared as surplus in the hands
of the land owner. The petitioner C. Rajamanickam, adopted son of the original land owner,
filed an appeal against the said order before the Land Tribunal in L.T.CMA 34 of 1990 and
the Land Tribunal, by order dated 16.3.1992 dismissed the appeal. As against the said
order, SRP No. 63 of 1992 was filed before the Special Tribunal.
       3. Since a contention was raised that the subsequent reopening of the proceedings
cannot be done, as action was dropped by orders dated 14.5.1972 and 22.7.1973, the
Director of the Land Reforms filed SRP No. 6 of 1995 praying before the Special Tribunal to
invoke its suo motu power under Section 83 of the Act and to set aside the order passed by
the Authorized Officer dated 14.5.1972 by which proceedings against the land owner were
dropped. It is stated that the SRP was filed to get over any technical objection which may
be raised.
       4. The Special Tribunal heard both the revision petitions together and by a common
order dated 21.8.1998, allowed SRP No. 6 of 1995 and disposed of SRP 63 of 1992 by
remanding the matter back to the Authorized Officer to commence fresh proceedings after
giving notice to all persons interested. The Special Tribunal further observed that all the
earlier proceedings dated 14.5.1972, 22.7.1973 and 12.2.1989 and the order passed by
the Land Tribunal dated 16.3.1992 were set aside. The correctness of the above orders are
assailed in the present writ petitions.
       5. Heard Mr. T.R. Rajagopoal, learned senior counsel for Mr. T.R. Rajaraman for the
petitioner and Mrs. Malarvizhi Udayakumar, learned Special Government Pleader for the
respondents.
       6. The learned senior counsel appearing for the petitioner would first contend that
the earlier order, passed by this Court in C.R.P.2508 of 1965, dated 8.1.1971, has become
final and the order of the Special Tribunal ought not to have been set aside and remanded
for fresh consideration. The next contention put forth by the learned senior counsel is that
SRP. No. 6 of 1995 which has been filed by the department, challenging the order dated
14.5.1972 has been presented after a period of 20 years and the Special Tribunal ought
not to have entertained such a belated petition. It is further contended by the learned senior
counsel that there is no power for the Special Tribunal to order for reopening the entire
issue after the proceedings were dropped. The learned senior counsel would further submit
that the petitioner is the adopted son and the grand son of the original land owner. The
adoption was on 9.2.1970 and the deed of adoption was registered on 20.3.1970 and the
date of commencement of the Act was on 15.2.1970. It is further submitted that as on the
notified date i.e., 2.10.1970, there was a valid adoption and these factors were taken into
consideration and thereafter the proceedings dated 22.7.1973 came to be passed. The
Tribunal ought not to have reopened the entire issue. Finally, the learned senior counsel
would contend that a draft statement has not been made for the purpose of calculating the
ceiling area of the family holding on the date of commencement of Act.
       7. Learned Special Government Pleader appearing for the respon-dents would
contend that the object of the enactment, namely Act 58 of 1961, was to secure that the
ownership and control of the material resources of the community are so distributed as
best to subserve the common good and that the operation of the economic system does
not result in the concentration of wealth and means of production to the common
detriment. Since the Act seeks to achieve such laudable object, the operation of various
provisions of Act cannot be said to be rigid and when it is found that the proceeding has
been made erroneously, the Special Tribunal was justified in invoking its suo motu power
under Section 83 of the Act so as to set aside the illegal order. Exercise of such power is
reasonable and fair, keeping in mind the object of the enactment. Learned Special
Government Pleader would further contend that SRP No. 6 of 1995 was filed before the
Tribunal, requesting the Tribunal to invoke its suo motu power only with the reason to get
over any technical objection which may be raised by relying upon the order dated
14.5.1972. It is further contended that in the order dated 14.5.1972, it has been stated
that further action has to be separately taken against the person on whom properties of
late Chockalingam Chettiar had devolved on his death. Therefore, the learned Special
Government Pleader would contend that there is no bar for the Tribunal to reopen the
matter and direct the Authorized Officer to decide the matter afresh after giving notice to
all the persons who may be interested.
       8. Learned Special Government Pleader would further contend that the decision of
the Hourable Supreme Court in AIR 1982 SC 865 (Bhikoba Shankar Dhumal (dead) v.
Mohan Lal Punchand Tathed) would squarely apply to the facts of the present case, since
the legislation in the Maharashtra State as well as the Tamil Nadu Act 58 of 1961 are in
paramateria. As regards the plea raised by the learned senior counsel for the petitioner that
the proceedings are grossly delayed, it is submitted by the learned Special Government
Pleader that the fresh orders under Section 9(2)(b) of the Act were issued only after
dismissal of the writ petition filed by the petitioner in 1989 and the petitioner filed an
appeal before the Land Tribunal during 1990 and the same was dismissed on 16.3.1992
against which SRP No. 63 of 1992 has been filed. Learned Special Government Pleader
would contend that the proceedings have been taken uninterruptedly and time lapse is
solely attributable to the petitioner by his conduct in prolonging the matter by filing various
petitions and therefore, there is no delay. On question of dropping all further proceedings, it
is contended that since the order of the Authorized Officer was erroneous, the petition was
filed requesting the Tribunal to invoke suo motu power to set aside such an order; that the
basis for reopening the proceedings is the order passed by the Honourable Supreme Court
in AIR 1982 SC 865 (Bhikoba Shankar Dhumal (dead) v. Mohan Lal Punchand Tathed); that
the law laid down by the Supreme Court is binding upon the authorities; that the Tribunal in
its earlier order in SRP No. 91 of 1993 has elaborately gone into this aspect and held that
the judgment of the Honourable Supreme Court AIR 1982 SC 865 (Bhikoba Shankar
Dhumal (dead) v. Mohan Lal Punchand Tathed) was considering the question whether the
proceedings commenced with filing of a return by a person holding, on the appointed day,
land in excess of the ceiling area prescribed by the Maharashtra Ceiling Act would become
infructuous and would have to be dropped, if such person dies before the notification
regarding surplus and possession of such surplus land is taken over by the authorities
concerned and the Honourable Supreme Court held that proceedings would become
infructuous.
        9. On the 2nd issue, regarding dropping of the proceedings, it is to be noted that the
order dated 15.5.1972 has been passed after the decision of this Court dated 7.1.1971
wherein it is held that the Authorized Officer is empowered to declare the surplus lands
under Section 10(5) and Section 12, only if the person is alive on the date of preparation of
final statement and that it is not sufficient if the person had been alive on the notified date
and that the Authorized Officer has no jurisdiction to fix the ceiling area of a deceased
person. Based on that judgment, the Authorized Officer ordered that further action to be
taken separately in respect of the persons on whom the properties of the deceased land
owner late Chockalingam Chettiar had devolved on the date of the death. It is based on
such order dated 15.5.1972, subsequently, proceedings dated 22.7.1973 came to be
passed. In such proceedings, it was noted that the patta for the lands stands in the names
of the land owner (Tmt. Thailammai Ammal) and the land owner‟s adopted son
(Rajamanickam) and based on a written statement filed by the land owner and the partition
deed dated 15.2.1979 between land owner and her adopted son C. Rajamanickam, held
that the land owner had only 8.095 standard acres which is below the ceiling limit.
Therefore, it is to be noted that the entire proceedings culminated in the order dated
22.7.1973 based on adoption of Rajamanickam and it is to be seen that the result of the
proceedings was unconditional and the same cannot be now put against the department
for initiating action. The Honourable Supreme Court has taken a decision while deciding the
similar case in AIR 1982 SC 865 (Bhikoba Shankar Dhumal (dead) v. Mohan Lal Punchand
Tathed) (Paras:13, 15, 18 & 19).
        10. From the above decision, it is seen that the proceedings have to be continued
and the surplus land in the hands of the land owner as on the appointed date should be
determined and taken possession in accordance with law and the legal heirs of the land
owner are entitled to participate the hearing and the ceiling area has to be determined as
on the appointed date, even though such person is dead before determining the surplus
and notified under the Act. Therefore, in our view, the department was fully justified in
approaching the Tribunal by filing SRP No. 6 of 1995 for requesting the Tribunal to exercise
its suo motu for revision.
        11. We have perused the order passed by the Tribunal and the points referred by the
Tribunal on the definition of the limited owner as defined in Section 3 (28) of the Act. As
noted by the Tribunal, this Court, earlier in CRP No. 2508 of 1965 dated 8.1.1971 did not
go into the issues about the total holding, the surplus holding, the holdings of the legal heirs
etc. Further, it is to be noted from the explanation of Section 3 (28) of the Act, a person who
has a right to enjoy the land during his lifetime shall be limited to be deemed owner,
notwithstanding that he has no power to alienate the land. This provision came to be
inserted by amending Act 39 of 1972 and it was given retrospective effect in terms of such
amendment. Therefore, the reasoning given by the Tribunal with regard to the explanation
to Section 3 (28), that it is deemed to be operational with effect from 6.4.1960 does not
call for any interference.
        12. Next question raised by the learned senior counsel is regarding the inordinate
delay in approaching the Tribunal. It is to be noted that the proceedings are pending before
Authorities and the fresh orders under Section 9(2)(b) of the Act were issued only after
dismissal of the writ petition filed by the petitioner in 1989 and aggrieved by the same, the
petitioner had preferred an appeal before the Land Tribunal during 1990 and the Land
Tribunal dismissed the same by order dated 16.3.1992 as against which revision was filed
before Special Tribunal in 1992. However, in view of the legal position having been settled
by the Honourable Supreme Court, the department had filed a petition under Section 83 of
the Act with a request to the Tribunal to invoke it suo motu power. Therefore, the physical
running of time from 1972 till 1995 when SRP No. 6 of 1995 came to be filed, should not
be taken for the purpose of computing the time taken in the instant case, since the
proceedings were being agitated at various levels by the petitioner and thus the delay if
any, could be attributed only to the petitioner. The petition in SRP No. 6 of 1995 was filed in
order to get over any technical objection which may be raised and further taking into
consideration the decision of Honourable Supreme Court with regard to law laid down on
the issue. Therefore, we hold that the department cannot be found fault for approaching the
Tribunal during 1995 by filing a petition. However, it is to be noted that the power vested
with the Special Tribunal under Section 83 could be exercised suo motu or on application to
call for to examine the order of the Authorized Officer Land Reforms, Land Commissioner or
Land Tribunal in respect of any proceeding as regards its correctness, legality etc. and the
Tribunal is vested with power to modify, reverse, remand for reconsideration if the Tribunal
found that there has been some irregularity in the proceedings. Therefore, the power vested
upon the Special Tribunal is very widely couched and even without a petition being filed by
the department, in order to review, the Tribunal can very well examine the correctness of
the orders passed by the Authorized Officer or Land Tribunal while considering the revision
petition which had been filed by the petitioner. Further, the Tribunal noted that all the legal
heirs were not afforded an opportunity of hearing, since the Authorized Officer had enquired
only the petitioner and not the other legal heirs, since the land had devolved on the next
generation of the other legal heirs, they may also to be entitled to hearing. Therefore, the
Tribunal held that since the order passed under Section 9 (2)(b) was not a speaking order,
the same has to be interfered with.
       13. For all the above reasons, we find that the order passed by the Tribunal is valid in
law and accordingly writ petitions are dismissed. However, there will be no order as to
costs.
                                                                           Petitions dismissed.



                                         [2010 (1) T.N.C.J. 450 (SC)]
                                              SUPREME COURT
BEFORE:
              DALVEER BHANDARI AND DR. B.S. CHAUHAN, JJ.
                                  STATE OF ORISSA AND OTHERS                                          ...Appellants
                                                           Versus
                               CHITRASEN BHOI                                                       ...Respondent
 [Civil Appeal No. 1271 of 2002 with I.A. No. 3 of 2002, decided on 16 September, 2009]  th


        LandAcquisitionAct,1894—Section28-A—Redeterminationofcompensation—Applicationmovedwithinthreemonthsfromdate
ofawardofReferenceCourt—Held,applicationwithinlimitationandmaintainable.                                     (Paras 7,
9,10and19)
        Case law.—AIR 2003 SC 2949; 1997 (6) SCC 280; AIR 1997 SC 2704; AIR 1997 SC
1915; AIR 1961 SC 1500; AIR 1963 SC 1604; 1997 (4) SCC 473; 1996 (4) SCC 537; 1995
(2) SCC 728; 2003 (1) SCC 421; AIR 1987 SC 45; AIR 1991 SC 730; 1995 (2) SCC 689;
1995 (2) SCC 733; 1995 (2) SCC 735; AIR 1995 SC 2259; 1995 (2) SCC 766; AIR 1995 SC
812; 2009 (1) SCC 754; AIR 2006 SC 1716—referred.
                                                         JUDGMENT
        B.S. CHAUHAN, J.—An application i.e., I.A. No. 3 has been filed by the Central Institute
of Fresh Water Acqua-Culture (CIFWA), Bhubaneswar under the Indian Council of
Agriculture Research (ICAR) for their impleadment as Respondent. Mr. V.K. Rao, learned
counsel appearing for the applicants has submitted that the land in dispute in fact had
been acquired for the said applicants, therefore, the applicants be impleaded as parties in
this appeal. Learned counsel appearing on behalf of the non-applicants have no objection in
this regard. Consequently, the applicants are impleaded as Respondent Nos. 2 and 3 in this
appeal. The I.A. is accordingly allowed and disposed of.
        Appeal No.1271 of 2002
        2. This appeal has been preferred against the judgment and order of the division
Bench of the Orissa High Court dated 23.2.1999 allowing the writ petition filed by the
respondent for seeking direction to the Land Acquisition Collector to consider his
application under Section 28-A of the Land Acquisition Act, 1894 (hereinafter called „the
Act‟).
        3. The facts and circumstances giving rise to this appeal, as stated in the petition, are
that a huge area of land was notified under Section 4 of the Act in the Official Gazette of
the State of Orissa dated 1.1.1973 (Annexure-5). The acquisition was sought for
establishment of the Central Institute of Fresh Water Acqua-Culture, i.e., a Fish Farm.
Declaration under Section 6 of the Act in respect of the said land was made on 9.7.1973
and was published in the Official Gazette dated 11.7.1973. The Land Acquisition Collector
made award, so far as the land of the present respondent No.1 is concerned, on 31.7.1975
assessing the market value of the land @ Rs.2,500/- per acre. Respondent No.1 did not
agitate the matter further, however, other persons whose lands stood notified by the same
notification under Section 4 and declaration under Section 6 of the Act filed the reference
under Section 18 of the Act and the same was decided vide Award dated 5.1.1995
assessing the market value of the land @ Rs.10,000/- per acre while deciding Misc. Case
No.362/94. The respondent filed application under Section 28-A of the Act on 21.3.1995
claiming the same market value for his land. The Land Acquisition Collector vide order
dated 11.3.1997 rejected the said application. Being aggrieved the respondent filed the
writ petition which has been allowed by the High Court. Hence, this appeal.
        4. Shri J.S. Attri, learned senior counsel for the appellant - State of Orissa has raised a
large number of issues contending that the application under Section 28-A of the Act had
rightly been rejected by the Collector as the same was not maintainable. It had been filed at
a belated stage i.e., after more than 20 years of the date of award made under Section 11
of the Act. The High Court has held that the application under Section 28-A had been filed
within limitation, however, the Collector has been directed to decide the said application,
provided, it is found to be maintainable. The order itself is contradictory as the issue of
maintainability solely depends upon the issue of limitation and no other issue can be
examined by the Collector. Therefore, the High Court ought to have dismissed the petition.
        5. On the other hand, Shri M. Samantaray, learned counsel appearing for the
respondent No. 1 has vehemently opposed the petition contending that the High Court has
rightly held that the application had been filed within limitation and therefore, no
interference is required. The appeal is liable to be dismissed.
        6. We have considered the rival submissions made by the learned counsel for the
parties and perused the record.
        7. Grievance has been raised by learned counsel for the appellant State that
application under Section 28-A of the Act was filed after 20 years and, therefore, it was not
maintainable. Law requires that the application be filed by the eligible person within three
months from the date of the reference award, on the basis of which the application is being
filed. The issue of limitation in this regard is no more res integra.
        8. In State of Andhra Pradesh & Anr. v. Marri Venkaiah & Ors., AIR 2003 SC 2949,
this Court has dealt with the issue of limitation and held as under:
         “Plain language of the aforesaid section would only mean that the period of
         limitation is three months from the date of the award of the Court. It is also
         provided that in computing the period of three months, the day on which the award
         was pronounced and the time requisite for obtaining the copy of the award is to be
         excluded. Therefore, the aforesaid provision crystallises that application under
         Section 28-A is to be filed within three months from the date of the award by the
         Court by only excluding the time requisite for obtaining the copy. Hence, it is difficult
         to infer further exclusion of time on the ground of acquisition of knowledge by the
         applicant.............In our view, with regard to the first contention that Section 28-A is a
         beneficial provision, there cannot be any dispute. However, the advantage of the
         benefit which is conferred is required to be taken within the stipulated time. A
         landowner may be poor or illiterate and because of that he might not have filed
         reference application but that would not mean that he could be negligent in not
         finding out whether other landowners have filed such applications. Whosoever
         wants to take advantage of the beneficial legislation has to be vigilant and has to
         take appropriate action within the prescribed time. He must at least be vigilant in
         making efforts to find out whether the other landowner has filed any reference
         application and if so, what is the result. If that is not done then the law cannot help
         him....”                             (Emphasis added)
        While deciding the said case the Court placed reliance upon its earlier judgments in
Tota Ram v. State of U.P. & Ors., (1997) 6 SCC 280; Union of India & Ors. v. Mangatu Ram &
Ors., AIR 1997 SC 2704; and Jose Antonio Cruz Dos R. Rodriguese v. Land Acquisition
Collector & Anr., AIR 1997 SC 1915. The Court further rejected the contention that
limitation would run from the date of knowledge distinguishing its earlier judgments on fact
and law in Raja Harish Chandra Raj Singh v. Deputy Land Acquisition Officer, AIR 1961 SC
1500; and State of Punjab v. Qaisar Jehan Begum, AIR 1963 SC 1604.
        9. In Bhagti (Smt.) (Deceased) through L.Rs. v. State of Haryana, (1997) 4 SCC 473,
this Court held that a claimant can seek redetermination of compensation on the basis of
the award of the Reference Court and not the judgment of the High Court and further held
that only those claimants who had failed to apply for a reference under Section 18 of the
Act are conferred with the right to apply for redetermination under Section 28-A(1) of the
Act. The same view has been reiterated in Union of India v. Bantram (dead) by L.Rs., (1996)
4 SCC 537. In Union of India & Ors. v. Karnail Singh & Ors., (1995) 2 SCC 728, a Bench of
two Hon‟ble Judges of this Court held that provisions of Section 28-A of the Act, as inserted
by Act No.68 of 1984, is prospective in nature and do not apply to an award made by Civil
Court prior to 24.9.1984. The limitation of three months for making application for
redetermination of compensation is to be computed from the date of earliest award made
by the Civil Court.
        However, a three Judges‟ Bench of this Court in Union of India & Anr. v. Pradeep
Kumari & Ors., (1995) 2 SCC 736, overruled the judgment in Union of India v. Karnail Singh
(supra) to the extent that application for redetermination may be filed within three months
from the date of first award of the Reference Court observing that intention of the
Legislature was not to restrict the benefit of the amended law, to the extent that a claimant
has to apply within limitation from the date of the first award of the Reference Court. Thus,
it is permissible even to make an application on the basis of a subsequent Reference Court
Award. However, it must be within the limitation from the date of making of the said
subsequent award. This view was further clarified by this Court in the State of Tripura & Anr.
v. Roopchand Das & Ors., (2003) 1 SCC 421.
        10. In the instant case, admittedly the application was filed within 3 months from the
date of reference award, the applicant - Respondent No. 1 had relied upon. The appellant
had not laid down any factual position as under what circumstances the application was
time barred. Therefore, no interference is required on this ground.
       11. Admittedly, the High Court has directed the Land Acquisition Collector to decide
the application under Section 28-A of the Act provided it is found to be maintainable,
however, the issue of limitation would not be agitated/considered. In such a fact situation
the question does arise as to whether the Land Acquisition Collector can still examine the
maintainability of the application and if so, on what grounds?
       12. The scope of provisions of Section 28-A of the Act was considered by this Court in
Mewa Ram v. State of Haryana, AIR 1987 SC 45, and the Court placed emphasis
particularly on para 2 (ix) of the object and reasons of the Amendment Act, 1987 which
provided for a special provision for inarticulate and poor people to apply for re-
determination of the compensation amount on the basis of the Court award in a land
acquisition reference filed by comparatively affluent land owner. The Court observed as
under:
        “Section 28-A in terms does not apply to the case of the peti-tioners..... They do not
        belong to that class of society for whose benefit the provision is intended and
        meant, i.e. inarticulate and poor people who by reason of their poverty and
        ignorance have failed to take advantage of the right of reference to the civil Court
        under Section 18 of the Land Acquisition Act, 1894....” (Emphasis added)
       13. This Court approved and reiterated the law laid down in Mewa Ram (supra) in
Scheduled Caste Cooperative Land Owning Society Ltd. Bhatinda v. Union of India & Ors,
AIR 1991 SC 730. In Babua Ram & Ors. v. State of U.P. & Anr., (1995) 2 SCC 689, the Apex
Court again reiterated the law laid down in Mewa Ram (Supra) observing as under:
        “Legislature made a discriminatory policy between the poor and inarticulate as one
        class of persons to whom the benefit of Section 28-A was to be extended and
        comparatively affluent who had taken advantage of the reference under Section 18
        and the latter as a class to which the benefit of Section 28-A was not extended.
        Otherwise, the phraseology of the language of the non-obstante clause would have
        been differently worded..... It is true that the Legislature intended to relieve hardship
        to the poor, indigent and inarticulate interested persons who generally failed to
        avail the reference under Section 18 which is an existing bar and to remedy it,
        Section 28-A was enacted giving a right and remedy for re-determination........The
        Legislature appears to have presumed that the same state of affairs continue to
        subsist among the poor and inarticulate persons and they generally fail to avail the
        right under sub-section (1) of Section 18 due to poverty or ignorance or avoidance of
        expropriation.” (Emphasis added).
       14. Thus, it is apparent that the Legislature has carved out an exception in the form
of Section 28-A and made a special provision to grant some relief to a particular class of
society, namely poor, illiterate, ignorant and inarticulate people. It is made only for “little
Indians”. The provisions of Section 28-A refer to the “person interested” which means the
original owner and that original owner interested must further be a person aggrieved by the
award of the Collector. In G. Krishna Murthy & Ors. v. State of Orissa, (1995) 2 SCC 733; D.
Krishna Vani & Anr. v. State of Orissa, (1995) 2 SCC 735; Union of India & Anr. v. Pradeep
Kumari & Ors., AIR 1995 SC 2259; and U.P. State Industrial Development Corporation Ltd.
v. State of U.P. & Ors., (1995) 2 SCC 766, it has been held by this Court that a person who
prefers Section 18 reference cannot maintain an application under Section 28-A of the Act.
The benefit of such an exceptional rule cannot be extended to such persons as it would be
against the public policy.
       In Union of India v. Shivkumar Bhargava & Ors., AIR 1995 SC 812, this Court
observed that the benefit of the State policy which confers certain beneficial rights on a
particular class of person is meant only for the person whose land was acquired and by
necessary implication “the subsequent purchaser was elbowed out from the policy and
became disentitled to the benefit of” the State policy.
       15. Placing reliance upon the aforesaid judgments a similar view has also been
taken by this Court in Kendriya Karamchari Sehkari Grah Nirman Samiti Ltd., Noida v. State
of Uttar Pradesh & Anr., (2009) 1 SCC 754.
       16. In Des Raj & Ors. v. Union of India & Anr., (2004) 7 SCC 753 it was held by this
Court that if a person has applied under Section 18 of the Act and pursued the matter
further, he is not entitled to maintain the application under Section 28-A for re-
determination of compensation. The Court further held that it is mandatory to file the
application within prescribed limitation, which runs from the date of the Award under
Section 18 of the Act. While deciding the said case the Court placed reliance upon its
earlier judgments, including Scheduled Caste Co-operative Land Owning Society Ltd.
(supra).
       17. In Union of India v. Munshi Ram & Ors., AIR 2006 SC 1716, this Court has laid
down the law that such an application is maintainable provided a person has not filed an
application under Section 18 of the Act. The Court held that Section 28-A seeks to confer
the benefit of enhanced compensation on those owners who did not seek Reference under
Section 18 of the Act. In fact, under the said provision they are entitled for enhanced
compensation decreed by the Reference Court and further as the decreed amount stands
modified in appeal by the higher Courts.
       18. Therefore, it is evident that an application under Section 28-A has to be dealt
with by the Land Acquisition Officer keeping in mind the aforesaid settled legal
propositions.
       19. Thus, it is evident that the submission made by learned counsel for the appellant
that the Land Acquisition Collector is bound to enhance the compensation without
considering any other fact, as the application has been held to have been filed within
limitation, is preposterous.
       20. In view of the above, we do not find any force in the appeal. The appeal stands
dismissed leaving the parties to bear their own costs. The Land Acquisition Collector shall
consider the issue of maintainability of the application filed by respondent in the light of the
aforesaid settled legal proposition expeditiously without considering the issue of limitation.
Needless to say that newly added respondents, namely Indian Council of Agricultural
Research (ICAR) and Central Institute of Fresh Water Acqua-Culture (CIFWA) shall also be
heard at the time of disposal of the application filed by respondent No. 1. No cost.
                                                                            Appeal dismissed.



                                [2010 (1) T.N.C.J. 456 (Mad)]
                                    MADRAS HIGH COURT
BEFORE:
           M. VENUGOPAL, J.
                         Y. MUNNEER BASHA AND ANOTHER                             ...Petitioners
                                        Versus
                                  P. PAPPATHI @ RAJAMANI AND OTHERS                                      ...Respondents
                  [C.R.P. (NPD) No. 3547 of 2009, decided on 11 November, 2009]   th


        LimitationAct,1963—Section5—CivilProcedureCode,1908—Order9,Rule9—Condonationofdelay—Suitdismissedindefaultfor
morethantwoorthreeoccasions—ThisshowspetitionernotquitediligentenoughinprosecutingCourtproceeding—Furtherthereisdelayof282
daysinprojectingSection5application—Hence,Courtbelowrightlydismissedapplication—Nointerferencewarranted.
                                                                                                              (Paras9and10)
        Counsel.—Mr. S. Balasubramaniam, for the petitioners.
                                                         JUDGMENT
        M. VENUGOPAL, J.—The petitioners/plaintiffs 2 and 3 have filed this Civil Revision
Petition as against the order dated 13.7.2009 in I.A.No.149 of 2007 in O.S.No.370 of 2001
passed by the learned Additional District Munsif Court, Namakkal, in dismissing the
application filed by the revision petitioners under Section 5 of the Limitation Act praying to
condone the delay of 282 days in filing an application under Order 9, Rule 9 of C.P.C. to
restore the suit that has been dismissed for default on 14.3.2006.
        2. The trial Court, while passing order in I.A.No.149 of 2007, has inter alia observed
that “the suit in O.S.No.370 of 2001 has been firstly dismissed for default on 16.4.2002
and later the same has been restored and subsequently, I.A.No.1074 of 2004 has been
filed and the same has been allowed on terms on 24.1.2005 and the same has been
restored on 7.7.2006 and again the suit has been dismissed for default and later
I.A.No.1026 of 2006 has been filed to restore the suit and subsequently, the said
interlocutory application has not been pressed and the same has been dismissed on
11.1.2007 and that the attitude of the petitioners from the beginning shows that they have
no intention to prosecute the case and also that an application has been already filed in
I.A.No.1026 of 2006 to restore the suit which has been dismissed on 14.3.2006 has not
been pressed without reserving the right to file a fresh application after changing the date
and therefore, the petitioners are barred from projecting this interlocutory application and
resultantly dismissed the application without costs”.
        3. The learned counsel for the revision petitioners/plaintiffs 2 and 3 urges before this
Court that the trial Court has committed an error in dismissing the application in I.A.No.149
of 2007 ignoring the averments made in the application and as a matter of fact, the trial
Court has not taken note of the fact that the mother of the revision petitioners viz., the first
plaintiff has expired on 10.4.2006 and earlier application in I.A.No.1026 of 2006 has not
been pressed because of the simple fact that the date of the order has been wrongly
mentioned as 13.3.2006 instead of the correct date 14.3.2006 and added further, the
mother being the first plaintiff has not been keeping good health on 7.3.2006 and later she
died on 10.4.2006 and hence, the delay in projecting the Section 5 application in
I.A.No.149 of 2007 is neither wilful nor wanton and added further, the Order 2, Rule 2 of
Civil Procedure Code is not applicable to the facts of the present case. But these factual
aspects of the matter coupled with the legal position have not been adverted to and
appreciated by the trial Court in proper perspective which has resulted in miscarriage of
justice and therefore, prays for allowing the civil revision petition to subserve the ends of
justice.
        4. This Court has paid its anxious consideration to the arguments advanced by the
learned counsel for the petitioners and noticed the same.
        5. It is to be borne in mind that the term “sufficient cause”, has to be interpreted in a
purposeful and in a meaningful manner. As a matter of fact, substantial justice will have to
be delivered to the parties overriding technicalities. Generally speaking, the breadth and
length of delay are not to be taken into account and there are no yardsticks to be
considered while dealing with the condonation of delay application. If the Section 5
application viz., I.A.No.149 of 2007 is allowed, the highest thing that can happen is that the
litigant/party is allowed to enter into the arena of legal proceedings and he or she can
contest the matter on merits and there is a possibility of deciding the cause on merits. It is
to be noted that the judiciary is respected not on account of its power to legalise, injustice
on technical grounds, but it is capable of removing injustice and is expected to do so.
       6. Coming to the facts of the present case, it is to be pointed out that in the affidavit
in I.A.No.149 of 2007 filed by the revision petitioners/plaintiffs 2 and 3, it is mentioned
that the suit in O.S.No.370 of 2001 on the file of the learned Additional District Munsif,
Namakkal has been posted in the list and on 7.3.2006, the proof affidavit has been filed on
behalf of the revision petitioners/plaintiffs 2 and 3 and that the suit has been posted for
the purpose of cross-examination of P.W.1 on 8.3.2006 and on 7.3.2006 evening, the first
plaintiff (deceased) viz., the mother of the 2nd and 3rd plaintiffs health has been affected
and she has been suffering from severe viral fever and therefore, she has been taken to
hospital for the purpose of treatment and because of that reason, the 3rd revision
petitioner has not appeared before the Court and later because of the fact that the
mother‟s health has been affected, she has been forced to be admitted in Salem hospital
and therefore, he has not appeared for the hearing of the case on 10.3.2006, 13.3.2006
and 14.3.2006 for the purpose of cross-examination and lastly for his non-appearance, the
suit has been dismissed on 14.3.2006 and that his mother also has expired on 10.4.2006
and later on he has met his counsel and filed I.A.No.1026 of 2006. But, in the said affidavit
in I.A.No.1026 of 2006, the dismissal of the suit date has been mentioned as 13.3.2006
wrongly instead of the correct date of 14.3.2006 and this factum of mistake has came to
be known only on 11.1.2007 and on the same day itself, the said I.A.No.1026 of 2006 has
not been pressed and resultantly, the same has been dismissed and therefore, there is
occasioned a delay of 282 days in projecting the fresh application viz., I.A.No.149 of 2007
and therefore, has prayed for allowing the Section 5 application for condonation of delay.
       7. Before the trial Court, the 3rd revision petitioner/4th respondent has filed a
detailed counter stating that it is true that the suit has been dismissed on 14.3.2006, but
also before the date on 16.4.2002, the suit has been dismissed and later the same has
been restored to file and in I.A.No.1026 of 2006 why the first plaintiff has not appeared
before the trial Court on 7.3.2006, 8.3.2006 and 10.3.2006 has not been made mention of
and when I.A. No.1026 of 2006 posted for enquiry at that time on 11.1.2007, the said
interlocutory application has been not pressed as per memo and accordingly, the same has
been dismissed and again to set aside the dismissal order dated 14.3.2006, the
application filed thereto is not maintainable and that petitioners are estopped in this regard
and moreover, the death of the first plaintiff has been informed to the Court on 8.11.2006
and that the application has been filed only on 20.1.2007. Under these circumstances, it
indicates clearly that the petitioners have taken the proceedings of the Court in a casual
manner and only with a mala fide motive to delay the proceedings the petitioners have filed
Section 5 application and no proper reasons have been assigned by the petitioners in
regard to the condonation of delay of 282 days and therefore, has prayed for dismissal of
the application.
       8. As far as the present case is concerned, it appears that originally the suit has been
dismissed for default on 16.4.2002 and later the same has been restored. Subsequently,
I.A.No.1074 of 2004 has been filed and allowed on terms on 24.1.2005 and as such the
suit has been restored. Once again, the suit has been dismissed for default on 7.7.2006
and later I.A.No.1026 of 2006 has been filed and the same has been dismissed as not
pressed on 11.1.2007.
       9. Considering the above facultative aspects of the matter that the petitioners are
allowing the suit filed by them in O.S.No.370 of 2001 to go for default on more than two or
three occasions, it clearly unerringly points out that they are not quite diligent enough in
prosecuting the Court proceedings. At this juncture, this Court pertinently points out that if
the litigants make an honest approach to the Court in regard to their case then the Court of
law may lend a helping hand based on the facts and circum-stances of a given case.
Nevertheless, the fact that the term “sufficient cause” or “good case” will have to be
interpreted in a meaningful and also in a purposeful way. Apart from that a Court of Law is
to adopt a pragmatic approach rather than a pedantic approach.
        10. This Court, on an overall assessment of the facts and circums-tances of the
present case, is of the considered view that the petitioners cannot seek the indulgence of
this Court in regard to the condonation of delay of 282 days in projecting the Section 5
application and in short, this Court comes to the inescapable conclusion that the
application lacks bona fide and accordingly, the civil revision petition fails.
        11. In the result, the civil revision petition is dismissed leaving the parties to bear
their own costs. Consequently, the order passed by the trial Court in I.A.No.149 of 2007 in
O.S.No.370 of 2001 is affirmed by this Court for the reasons assigned in this revision.
Having regard to the facts and circumstances of the case, there shall be no order as to
costs.
                                                                             Revision dismissed.



                                       [2010 (1) T.N.C.J. 460 (Mad)]
                                           MADRAS HIGH COURT
BEFORE:
               C.S. KARNAN, J.
THE MANAGING DIRECTOR, TAMIL NADU
                                   STATE TRANSPORT CORPORATION LTD.                                   ...Appellant
                                                      Versus
                              VALLIAMMAL AND OTHERS                                              ...Respondents
    [C.M.A. No. 171 of 2005 and C.M.P. No. 773 of 2005, decided on 9th December, 2009]
         MotorVehiclesAct,1988—Section173—MotorVehiclesaccident—Deathduetoaccidentbybus—DriverofbusofCorporationheld
negligent—AwardofcompensationofRs.9,79,000/-byM.A.C.T.—ReducedtoRs.5,99,800/-—Apportionmentofawardofcompensation
50%tofirstcomplainantand25%eachtosecondandthirdcom-plainants—Confirmed.                             (Paras 1, 3,
25 and 27)
         Case law.—AIR 1981 NL 1683; 2001 ACJ 1992; 2004 ACJ 484; 2002 ACJ 1571;
1990 ACJ 450; 1972 ACJ 380; 2002 ACJ 233; AIR 1992 TNLJ 116; AIR 1989 SC 1074;
1977 ACJ 1; 2002 ACJ 581; AIR 1998 NC 3036; 2002 ACJ 1601; 2004 ACJ 222; 2002 ACJ
1258.
         Counsel.—Mr. A. Babu, for the appellant; Mr. S.S. Swaminathan, for the respondents.
                                                    JUDGMENT
         C.S. KARNAN, J.—The above Civil Miscellaneous Appeal has been filed by the
appellant/respondent against the Award and Decree Order dated 10.8.2004, made in
M.C.O.P.No.387 of 2003, on the file of the Motor Accidents Claims Tribunal (Additional
District Court, Fast Track Court No.V, Tiruppur), awarding a compensation of Rs.9,79,000/-
with 9% interest per annum, from the date of filing the petition to till the date of deposit of
compensation.
       2. Aggrieved by the above award, the appellant/respondent, Tamilnadu State
Transport Corporation Ltd., has filed the above appeal praying to set aside the Order.
       3. The short facts of the case are as follows:
       The first petitioner is the wife and the second and third petitioners are the daughters
of the deceased Krishnasamy, who died in a motor vehicle accident, which took place on
22.2.2003, at about 19.55 hrs, in the Kovai to Avinashi Road, near Mariamman Koil, Gold
Wins.
       4. On 22.2.2003, at about 19.55 hrs, the deceased K.V.Krishnasamy was going by
bike bearing registration No.TN 39 Q 0713 from east to west in the Kovai to Avinashi Road,
near Mariamman Koil Gold Wins keeping to the left side of the road. At that time, a bus
bearing registration No.TN 39 N1506, driven by the bus driver in the regular course of
employment under the respondent was coming from east to west and driven rashly and
negligently, dashed against the deceased. Due to the accident, the deceased
K.V.Krishnasamy sustained grievous injuries all over the body. Immediately after the
accident, the deceased K.V.Krishnasamy, was taken to CMC Hospital, Coimbatore, but in
spite of Doctor efforts, the deceased died. The deceased was employed in K.K.C.Textile
Mills, Krishnapuram, Somanur, Saizer and was earning a sum of Rs.6,000/- per month.
The deceased is the only breadwinner of his family.
       5. The driver of the bus has been charged under Sections 279, 337 and 304(A), I.P.C.
by the T.I.W. East Police Station in Crime No.57/2003. The petitioners have claimed a
compensation of Rs.5,00,000/- from the owner of the said bus with interest at the rate of
18% per annum from the date of filing of petition to till the date of deposit of award under
Section 166 of the Motor Vehicles Act, 1988.
       6. The respondent in his counter has resisted the claim stating that the petitioners
have to prove that the driver of the respondent was responsible for the accident. The
respondent submits that on 22.2.2003, at 4.27 p.m. the driver of the respondent‟s took the
bus bearing registration No.TN39 N1506 from Salem to Coimbatore observing all road rules
and regulations in moderate speed and at about 7.55 p.m. while proceeding near
Coimbatore Gold Wins, two persons came in a two-wheeler bearing registration No.TN 39 Q
0713 behind the back of the bus and tried to overtake the bus on the left side and while
overtaking the bus in the left side, the driver of the two wheeler was not able to control the
speed of the two wheeler in the edge of the road and lost control and due to that the pillion
rider fell down under the left side back wheel of the bus. Hence, the accident had been
caused by the rash and negligent riding of the two wheeler by its rider and not due to any
negligence of the bus driver.
       7. Further, the petitioners have to prove that the driver of the two wheeler had proper
and valid driving licence. Further, the petition is bad for non-joinder of proper and
necessary party i.e., the driver, owner and insurer of the two wheeler bearing registration
No.TN 39 Q 0713. Further, the respondent has not admitted that the petitioners are legal
heirs of the deceased and that they are dependent on the deceased. Further, the age,
income and occupation of the deceased was not admitted. Further, the respondent denies
that the petitioners have sustained loss of earning and loss of earning power as alleged in
the petition and further the claim of the petitioners are excessive.
       8. Further, the contention of the respondent that the Motor Accident Claims Tribunal,
Court of the Subordinate Judge, Tiruppur (Fast Track Court No.V) did not have jurisdiction to
try the case, was rejected by the Tribunal citing legal opinions contained in AIR 1981 NL
Page 1683 and 2001 ACJ Page 1992.
         9. The Motor Accident Claims Tribunal framed two issues for consideration namely:
      (i)     Who was responsible for the accident? Is compensation to be paid? If so, who
              is liable to pay compensation?
     (ii)     What is the quantum of compensation to be paid?
        10. On the petitioners side, four witnesses were examined and seven documents
were marked as Exs.P1 to P7. On the respondent‟s side one witness was examined as
R.W.1 and no do documents were marked.
        11. The contention of the first petitioners that her husband had died in the said
accident has not been opposed by the respondent. To prove that who was responsible for
the accident, the first petitioner was examined as P.W.1. She had adduced in her evidence
that on 22.2.2003, at 7.55 p.m. when the deceased was travelling as a pillion rider in the
two wheeler bearing registration No.TN 39 Q 0713, on the left side of Kovai to Avinashi
road, from east to west, the bus bearing registration No.TN 39 N 1506, coming behind the
two wheeler and in the same direction driven rashly and negligently and at high speed,
dashed against the back of the two wheeler, when the bus was nearing Mariamman Koil.
She has further stated that the husband had sustained head injuries and died on the spot
and has stated that the accident had been caused only by the rash and negligent driving of
the driver of the bus. In support of her evidence, she had marked, Ex.P1-FIR; Ex.P2-Post
Mortem Report; Ex.P3-Death Certificate of the deceased and Ex.P6-Motor Vehicle
Inspector‟s Report.
        12. But, another eye witness of the accident Mr.Mahendraverman, who has been
examined as P.W.2, has given a sworn affidavit, which was not as per the Civil Procedure
Code laid down in law and as such the Tribunal rejected the evidence of this witness.
        13. On the petitioners‟ side, another witness S.Varadarajan, was examined as P.W.4.
The P.W.4, in his evidence has adduced that he had witnessed the accident on 22.2.2003
at about 7.55 hrs and that the accident had occurred on the Coimbatore to Avinashi Road,
near the temple, and that the bus bearing registration No.TN 39 N 1506 driven rashly,
negligently and at high speed by the driver of the bus had dashed against the rear of the
two wheeler travelling in front of the bus, on the same direction, and that as a result of the
accident, the pillion rider, the husband of the petitioner, P.W.1 had sustained injuries and
died. Further, he has stated that the Police had conducted enquiry of the said accident on
the spot itself. The respondent‟s side had cross-examined P.W.4 but were not able to
extract any evidence to suggest that he was not an eye-witness to the said accident. But,
the contention of the counsel appearing for the respondent was that the evidence adduced
by the P.W.4 should be rejected as he had not given a complaint to the Police Station
regarding the said accident. But, the Tribunal, following law as laid down in 2003 ACJ Page
475 decided to ignore it.
        14. Even in the FIR, it has been stated that the respondent‟s bus had been the cause
for the accident. From an examination of Ex.P2, the Post-mortem Report, it was evident
that a criminal case number had already been filed regarding the accident. From a scrutiny
of Ex.P6, the Motor Vehicle Inspector‟s Report, it was evident that the driver of the two
wheeler had valid driving licence till 30.10.2003, and that the accident had occurred earlier
to this date. Further, the damages to the two wheeler had been given in the report and it
has been further stated that the accident had not been caused by any mechanical
deficiencies of the vehicle. Similarly, the Motor Vehicles Inspector‟s Report regarding the
said bus clearly shows the registration number of the bus and the criminal case number
regarding the said accident. Considering all the above oral and documentary evidence, the
Tribunal decided that the accident has been caused only by the driver of the respondent.
       15. Further, on the respondent‟s side, the conductor of the bus was examined as
R.W.1. The R.W.1, in his evidence has stated that he was the conductor of the said bus
involved in the accident. The driver of the bus has not given any evidence before the
Tribunal, nor given any reasons for non-appearance. The Tribunal was not inclined to
consider the evidence of R.W.1, who had stated that the driver of the two wheeler was not
able to control the speed of the two wheeler in the edge of the road and lost his control and
due to that the pillion rider fell down on the left side back wheel of the bus, so they rejected
this evidence as it did not have any ring of genuineness. Further, it was concluded by the
Tribunal, that as the driver of the bus has not come forward to give evidence to state that
he has not caused the accident, he is to be held guilty under Section 114(G) of Evidence Act
and that he was the cause for the accident. Further, on consideration of law laid down as
per 2004 ACJ Page 484; 2002 ACJ Page 1571, Paras 5 and 7; 1990 ACJ Page 450 and
1972 ACJ Page 380, the Tribunal held that the respondent is liable to pay compensation to
the petitioners.
       16. In her evidence, P.W.1 has stated that at the time of the accident, the deceased
was aged about 50 years and was working at K.K.V. Textile Mills as Sizer and earning a sum
of Rs.6,000/- per month. Further, P.W.3, the partner in K.K.V. Textile Mills had adduced
evidence stating that the deceased had been working as Sizer for five years before his
death in the accident and that he was earning a salary of Rs.6,000/- per month and that he
had been paying the salary to the deceased every month and marked Ex.P7-copy of the
Partnership Deed as proof for the same. The evidence given by P.W.3 was in consonance
with the evidence adduced by P.W.1. The Tribunal, after considering the evidence given by
the individuals P.W.1 and P.W.3 and further following legal opinion as laid down in the
Judgment of the Madras High Court in 2002 ACJ Page 233, Para 20, Anandhi v. Latha,
concluded that the deceased had worked as Sizer in the said Mill and was earning a sum of
Rs.6,000/- per month. Further, the Tribunal also considered another Judgment, which was
relevant to the present case, in AIR 1992 TNLJ Page 116; AIR 1989 SC Page 1074 and
further another case (ref. C.M.A.No.844 of 1996), High Court of Madras, K.
Subramanian/New India Assurance Co., Ltd. v. Bhuvaneswara and another, wherein it has
been stated in operation portion that—
        “Though account books relating to payment of salary have not been produced, the
        oral evidence of P.W.1 and Salary Certificate, Ex.A8, shows that the deceased was
        getting Rs.3,000/- per month”.
       17. Further, the petitioners had marked Ex.P4 to prove that they are legal heirs of the
deceased. The veracity of the document has not been questioned and as such the Tribunal
held that the petitioners are the legal heirs of the deceased. Further, it has been stated in
the evidence of P.W.1 that the age of the deceased was 50 years. Further, even in Ex.P2-
Post Mortem Report, the age has been mentioned as 50 years. As there were no contra
evidence to this produced by the respondents, the Tribunal took the age of the deceased as
50 years and adopted a multiplier of 13.
       18. Further, the learned counsel appearing for the petitioners had argued that the
future prospects of the deceased also has to be considered in calculating the compensation
and in support of this had cited Judgments made in—
       1977 ACJ Page 1
       2002 ACJ Page 113
       1996 ACJ Page 581
       AIR 1998 NC Page 3036
       2002 ACJ Page 1601 Para 6, and
       2004 ACJ Page 222
       19. Accordingly, the Tribunal took the average of salary at the time of the death and
double of his present salary and considered the salary of the deceased as Rs.9,000/- per
month. So, the Tribunal calculated the loss of income to the petitioners as Rs.9,000/- x 12
x 13 x 2/3 = Rs.9,36,000/-. Further, the Tribunal awarded a sum of Rs.10,000/- to the first
petitioner for loss of consortium and a sum of Rs.10,000/- each to the first, second and
third petitioners for loss of love and affection. For funeral expenses, a sum of Rs.3,000/-
was awarded as compensation by the Tribunal.
       20. Further, the arguments advanced by the respondent‟s side stating that the owner,
driver and insurer of the two wheeler had not been included in the petition was not
considered by the Tribunal, who relied on legal opinion expressed in Judgment in 2002 ACJ
Page 1258 for the said rejection.
       21. In total, a sum of Rs.9,79,000/- was awarded as compensation to the petitioners
and apportioned 50% of the award amount to the first petitioner and 25% each to the
second and third petitioners and directed the respondent to deposit the above amount into
the credit of the M.C.O.P.No.387 of 2003, on the file of the Motor Accidents Claims Tribunal
(Additional District Court, Fast Track Court No.V, Tiruppur), with interest at the rate of 9%
per annum from the date of filing of petition to till the date of payment of deposit. Further,
the amount deposited in the Court has to be invested in a Nationalised Bank for three years
and that the petitioners are permitted to receive interest on such deposit once in six
months. Further, the apportioned amounts of the minor petitioners were to be kept in the
bank until they become major. The respondent was given one month time to deposit the
award amount and the petitioners were directed to pay the court fees within a period of one
month.
       22. The learned counsel appearing for the appellant has argued in his appeal that the
Tribunal had erred in relying upon the evidence of P.W.4, the eyewitness in respect of
manner of accident and further no Police Officer was examined to prove negligence on the
part of the driver of the appellant-Corporation. Further, the Tribunal had failed to consider
the evidence of R.W.1, the conductor of the appellant-Corporation and ought to have fixed
at least contributory negligence on the part of the motorcycle rider. Further, the Tribunal
erred in relying upon the evidence of the P.W.1, the claimant in respect of the age,
occupation and monthly income of the deceased. The Tribunal had also erred in fixing the
annual income of the deceased at Rs.9,000/- and multiplier at 13 without any basis.
Further, the award granted under loss of income, loss of consortium, loss of love and
affection and funeral expenses were erroneous.
       23. The learned counsel appearing for the respondent argued that the Tribunal
awarded the compensation on the basis of the income of the deceased, his age and
dependency of the claimants. The Tribunal had not awarded appropriate amounts under
the heads of the loss of love and affection and loss of consortium. But, considering the
overall circumstances, the quantum of the compensation awarded by the Tribunal is fair.
As such, the appeal is not maintainable.
        24. For the foregoing reasons, facts and circumstances of the case, discussions
before the Tribunal and arguments advanced by the respective counsels before this Court
and considering the grounds of appeal, the Court is of the view that the Tribunal‟s award for
loss of income of Rs.9,36,000/- has been computed incorrectly on improper fixation of
income for the deceased. The income taken by the Tribunal was an average of his present
salary and double that of his present salary i.e., Rs.6,000/- + Rs.12,000/- = Rs.18,000/- /2
= Rs.9,000/-. This mode of calculation, based on hypothesis cannot be entertained by law.
Further, the deceased was working in a private company, which is not a statutory body or a
Government/Government‟s concern and hence the future earnings cannot be predicted
accurately for the deceased, who was ranked as a Sizer, in the Textile Firm. Hence, the
Court takes the income of the deceased as Rs.5,000/- per month and after deducting
1/3rd share of this for personal expenses, considers that his contribution to his family
would be Rs.3,300/- per month only. Taking an annual salary of Rs.39,600/- and adopting
a multiplier of 13, this Court awards a sum of Rs.39,600 x 13 = Rs.5,14,800/- under the
head of loss of income to the petitioners. The award of Rs.10,000/- to the first claimant for
the loss of consortium is modified as Rs.25,000/- by this Court. The award of Rs.25,000/-
granted by the Tribunal to the first claimant for loss of love and affection is set aside. The
award of Rs.10,000/- each granted by the Tribunal to the second and third claimant for the
loss of love and affection is modified as Rs.25,000/- each by this Court. For funeral
expenses, the Tribunal had awarded a sum of Rs.3,000/-. This Court enhances the amount
under this head to Rs.10,000/-. As such, this Court awards a total compensation of a sum
of Rs.5,99,800/- together with interest at the rate of 9% per annum from the date of filing
the claim petition to till the date of payment.
        25. The said appeal came before this Hon‟ble Court on 19.1.2005, when this Court
ordered the appellant/State Transport Corporation to deposit a sum of Rs.5,50,000/- to the
credit of the M.C.O.P.No.387 of 2003, on the file of the Motor Accidents Claims Tribunal
(Additional District Court, Fast Track Court No.V, Tiruppur). Further the Court permitted the
first claimant to withdraw a sum of Rs.2,50,000/- and the second claimant to withdraw a
sum of Rs.50,000/-. The Court directed the Tribunal to invest the balance amount, with
accrued interest, of the minor in the bank.
        26. In case, the appellant has deposited more than the award amount of
Rs.5,99,800/- with interest. The appellant/State Transport Corporation is at liberty to
withdraw the excess amount from the credit of the M.C.O.P.No.387 of 2003, on the file of
the Motor Accidents Claims Tribunal (Additional District Court, Fast Track Court No.V,
Tiruppur).    If, the appellant/State Transport Corporation had deposited less than
Rs.5,99,800/- with accrued interest, this Court directs the appellant/Corporation to comply
with this Court order within a period of six weeks from the date of receipt of this order.
        27. The Tribunal apportioned 50% of the award amount to the first claimant and 25%
each to the second and third claimants. The ratio adopted for apportionment of award to
the claimants is confirmed by this Court.
        28. As such, it is open to all the claimants to withdraw their appor-tioned award
amount lying into the credit of the M.C.O.P.No.387 of 2003, on the file of the Motor
Accidents Claims Tribunal (Additional District Court, Fast Track Court No.V, Tiruppur), by
filing necessary payment out application in accordance with law.
        29. In the result, the above civil miscellaneous appeal is partly allowed and the
award passed by the Tribunal in the M.C.O.P.No.387 of 2003, on the file of the Motor
Accidents Claims Tribunal (Additional District Court, Fast Track Court No.V, Tiruppur), is
modified. Consequently, connected mis-cellaneous petition is closed. No costs.
                                                                     Appeal partly allowed.



                                             [2010 (1) T.N.C.J. 467 (SC)]
                                                  SUPREME COURT
BEFORE :
                TARUN CHATTERJEE AND HARJIT SINGH BEDI, JJ.
                                   PINNINTI KISTAMMA AND OTHERS                                                 …Appellants
                                                         Versus
                               DUVVADA PARSURAM CHOWDARY AND OTHERS                                         …Respondents
                [Civil Appeal Nos. 6900-6906 of 2001, decided on 8 January, 2010]    th


         Land dispute—Tenant and Landlords—Dispossession—No patta granted to landlords having lost their right the land vested to
Government—Nodocumentproducedtoaver—Landlordsgotnovestedrighttodispossesthetenants—DecisionofRevenueauthoritiesstood
unchallengedandachievedstatusoffinality—Landlordslostcompletegroundfordenyingthetenancyrightsoftenants—Tenantscultivatingthe
disputedlandssincethetimesoftheirancestors—Held,HighCourtrightlygrantedadecreeforpermanentinjunctioninfavouroftenants—Outof
totallandof300acres19.80acresclaimedbylandlordsstandsdismissed—NogroundtoupsetfindingofHighCourt.
                                                                                                     (Paras13,14and18to21)
         Case law.—AIR 1985 SC 577; AIR 1986 SC 794; AIR 1976 AP 402—referred.
                                                        JUDGMENT
         TARUN CHATTERJEE, J.—These two batches of appeals are directed against the judgment
and decree dated 27th of March, 1997 passed by the High Court of Andhra Pradesh at
Hyderabad in Second Appeal Nos. 361 of 1996 & batch and Second Appeal Nos. 374 of
1996 & batch and also against the judgment and order dated 10th of September, 1997 of
the same High Court in Review Petition Nos. 6980 of 1997 and batch whereby the High
Court modified its earlier order dated 27th of March, 1997.
         2. The appellants in C.A. Nos. 6900-6906 of 2001(hereinafter called the „Tenants‟),
filed O.S. Nos. 43 of 1980 and batch (7 suits) claiming tenancy rights in respect of 19.80
Acres of land in Kambirigam Village and also prayed for permanent injunction restraining
the Respondents in C.A.Nos.6900-6906 of 2001, who are also the appellants in
C.A.Nos.6907-6946 of 2001 (hereinafter called as the „Landlords‟) from interfering with
their possession over the said land. The landlords also filed cross suits being O.S. Nos. 75 of
1980 and batch (13 suits) praying for injunction restraining the tenants from interfering
with the peaceful possession of an extent of land measuring 181 Acres which also included
the aforementioned 19.80 Acres.
         3. The case of the tenants in their suits was that the plaint schedule lands formed a
part of the pre-settlement un-enfranchised Inams in Kambirigam Mokhasa in the erstwhile
Tarla Estate, Tekkali Taluk. They had been cultivating the plaint schedule land as tenants
from time immemorial under inamdars, predecessors-in-interest of landlords by paying
Rajbhagam paddy to them. In 1804, the British Government granted “Sannad” to the Tarla
Estate wherein Kambirigam was described as a Jagir which was an Estate within the
meaning of Section 3 of the Estate Land Act, 1908. However, no patta was granted to the
landlords or their predecessors-in-interest. Therefore, according to the tenants, the rights of
the landlords in respect of the lands in question vested in the Government by virtue of
Madras Estates Abolition and Conversion into Raiyotwari Act of 1948 (for short „Estates
Abolition Act‟). The tenants had complained to the Revenue Authorities alleging that the
Revenue records were manipulated by the landlords. Pursuant to this, Tehsildar, Palasa
conducted an enquiry wherein it was found that the tenants and other raiyots were
occupants and cul-tivators in the Revenue Records for Fasli 1389. Being aggrieved by these
orders, landlords filed a writ petition, which came to be registered as W.P.No. 3189 of 1980
before the High Court of Andhra Pradesh claiming that they were not given an opportunity
to be heard in the enquiry conducted by the Tehsildar. Allowing the Writ Petition, the High
Court vide its order dated 24th of August, 1982 quashed the order of the Tehsildar.
However, the High Court had given liberty to the Tehsildar to conduct a fresh enquiry after
giving due hearing to the parties. Accordingly, the Tehsildar Palasa, conducted an enquiry
again and passed an order dated 10th of September, 1984, declaring the tenants and
others as cultivators in Kambirigam village and further observed that since the time of their
ancestors, the tenants and others had been cultivating the lands in dispute separately and
also making payment to the Mokhasadars. This order was confirmed by the Collector and
Commissioner of Land Revenue.
       4. In the cross suits filed before the District Munsif, the landlords claimed to be the
Mokhasadars of Kambirigam Mokhasa. According to them, the plaint schedule lands are
their absolute property which fell to their respective shares in the family arrangement
among their respective family members inter se in or about the year 1945. Ever since
such arrangement, they had been in exclusive possession and enjoyment of their respective
land as described in the schedule of the plaint. According to the landlords, Kambirigam
village did not fall within the ambit of Section 2(d) of the Estates Abolition Act. No patta was
granted to the landlords because the village was not surveyed.
       5. By its judgment and order dated 21st of July, 1987, the District Munsif, Palasa,
decreed the suits filed by the tenants praying for an order of permanent injunction,
restraining the landlords from interfering with their plaint schedule lands. By a separate
order, District Munsif dismissed the cross suits filed by the landlords praying for an order of
injunction against the tenants.
       6. Being aggrieved by the said judgment of the District Munsif, Palasa dated 21st of
July, 1987, the landlords preferred two sets of appeals before the Principal Subordinate
Judge, Srikakulam. From the suits filed by the tenants, i.e. O.S. Nos. 75 of 1980 and batch
the appeals were numbered as A.S.No.12 of 1996 and batch (i.e. 13 appeals) and from the
suits filed by the landlords, i.e. O.S Nos. 43 of 1980 and batch the appeals were numbered
as A.S. No. 11 of 1996 and batch 5 (i.e. 7 appeals). The Principal Subordinate Judge,
Srikakulam, by two judgments dated 15th of April, 1996 delivered separate judgments in
13 appeals (A.S No. 12 of 1996 and batch) and 7 appeals (A.S. No. 11 of 1996 and batch).
       7. Disposing of the seven appeals in A.S.No.11/1996 and batch, the Principal
Subordinate Judge noted that before the trial Court, the plaintiffs and defendants in all
seven suits, had taken similar pleas. After narrating the contentions of both the parties and
examining the materials on record, the first appellate Court came to a finding of facts, inter
alia, as follows :
       8. The tenants did not dispute the contentions of the landlords that their ancestors
became the landlords in respect of the plaint schedule land. According to the tenants, their
ancestors were inducted into possession of separate bits of plaint schedule lands by the
ancestors of the landlords. The said tenancy was alleged to have been continuing till the
date of filing of the suit. In an enquiry conducted by the Settlement Officer on an
application filed by one of the landlords to determine whether Kamibirgam village was an
Inam Estate or not, none of the tenants appeared before the Settlement Officer. The said
landlord had contended that he and his ancestors owned almost all the land in the village,
though they let out a few bits of lands to some raiyots for seasonal cultivation temporarily.
Thus, by his order dated 29th of June, 1950, the Settlement Officer held that Kambirigam
village was not an Inam Estate. It was not the case of the tenants that they had been
inducted in possession of the plaint schedule land after the order of the Settlement Officer.
Admittedly, they had no documents proving their possession. That the names of the
landlords were recorded in the revenue registers as personal cultivators was also not
denied. The contention that since the tenants were not residents of Kambirigam village on
the date of the enquiry by the Settlement Officer, they could not appear before him, could
not be accepted. If numerous tenants were put in possession of tiny bits of land measuring
300 Acres in respect of which the enquiry was conducted, at least one of them would have
come across the notices put up announcing the enquiry. In a suit filed by the landlords
before the Subordinate Judge, Srikakulam for a declaration that Kambirigam village was
not an estate, a finding was recorded that there were no tenants in the village. The
Government which was a party to the suit, did not dispute this. An appeal preferred against
the order of the Subordinate Judge was dismissed. Until 1976, when the tenants submitted
applications to the Sub-Collector, Tekkali stating that they had been cultivating the lands in
Kambirigam Village, paying „Ambaram‟ to the Mokhasadars, no case was ever made out by
the tenants that they had been tenants in Kambirigam village. In 1977, one of the landlords
filed a suit claiming similar relief as in the present case against some of the tenants and
the tenants did not even contest the said suit. Admittedly, they knew of the suit. The
specious justification for not contesting the suit was that they were under the impression
that the suit was compromised. This plea could not be accepted. In the absence of any
indication that there were tenants in the lands of Kambirigam village till 1977, the mere
allegation that the names of the landlords were wrongly recorded in No.2 Adangal, could
not be accepted. The Tehsildar, Palasa by his order dated 18th of June, 1980 held that
there were about 30 tenants in Kambirigam village but such an order was passed without
giving any notice to the landlords. In the fresh enquiry conducted in accordance with the
directions of the High Court issued on a writ petition filed by the landlords, applications filed
by 60 other tenants were considered. The concerned Tehsildar by his order dated 10th of
September, 1984 held that sizable land of Kambirigam village was under the cultivation of
the tenants. This order was confirmed by the Collector. On this basis, the tenants disputed
the veracity of the findings recorded by the Settlement Officer and by the Subordinate
Judge. The Tehsildar was of the opinion that as there was enough material to give rise to a
doubt that the landlords had not been cultivating the entire cultivable land in the
Kambirigam village, the benefit of doubt should be given to the hard pressed poor raiyots,
as against the landlords who were rich and influential. Thus, the order of the Tehsildar was
not based on any reliable and acceptable documentary evidence. The particulars of land, or
rent or tenants were not mentioned in the findings. The particulars of land mentioned in the
applications filed before Sub-Collector by the tenants, do not tally with those in the plaint
schedule, based on the order of the Tehsildar. Hence, it is evident that the Tehsildar did not
conduct the enquiry properly. Padi Narayana, the first defendant in all except one suit, had
denied that he had been a tenant in the suit lands and had averred that he had been falsely
impleaded in the said proceedings. Yet, he appeared as a tenant in the findings given by
the Tehsildar. Thus, the order of Tehsildar was found not to be based on proper and legal
evidence. On the other hand, the names of the landlords have been recorded in the revenue
registers as the personal cultivators of the plaint schedule lands in the No.2 Adangal till
1979, i.e. for which these batch suits were filed. As against this, neither the tenants entered
the witness box to support their specific cases, nor did they produce any reliable
documentary evidence to rebut the entries in the record. The testimonies of witnesses they
produced were not reliable.
       9. Disposing of A.S.No.12 and batch i.e., the 13 appeals filed by the landlords from
the Original Suits filed by the tenants, the Principal Sub-ordinate Judge, inter alia, held that
none of the tenants disputed the title of the landlords over the land in Kambirigam village.
While the Tenants, who were the plaintiffs in this batch suits should have established that
they had the possession over the plaint schedule lands by virtue of the tenancy granted in
their favour by the predecessors of the landlords, none of them entered the witness box in
support of their case. The particulars of origin of the alleged tenancy were not given in any
of the plaints. The testimony of the only witness produced by the tenants was self serving
and was not corroborated by any other evidence, as he was too young to know the
particulars of the alleged tenancy, which had allegedly been in existence since time
immemorial. Again, reference was made to the discrepancies in the description of land in
plaint schedules and in the applications filed before the Sub-Collector, Tekkali. It was
pointed out that the Tehsildar‟s report on which the tenants had placed reliance was not
based on legal and relevant evidence. As the burden of proof was on the tenants, the mere
failure of the landlords in establishing that they had been personally cultivating the plaint
schedule lands alone would not enable the tenants to get a permanent injunction against
them in respect of particular bits of plaint schedule lands.
       10. Accordingly, the first appellate Court allowed the appeals of the landlords and
dismissed the suit of the tenants against which second appeals were preferred by the
tenants before a learned Single Judge of the Andhra Pradesh High Court which came to be
registered as S.A.Nos. 361 of 1996 and batch and S.A.Nos.374 of 1996 and batch. The
second appeals were directed against both the judgments and decrees dated 15th of April,
1996 passed by the Principal Subordinate Judge, Srikakulam in two batches of First
Appeals, i.e. A.S.Nos.11 and batch and A.S.Nos.12 and batch. The High Court by the
impugned judgment allowed all the Second Appeals, numbered as above.
       11. It may be noted that the learned Judge in the impugned judgment, however,
stated that “these second appeals arise out of a common judgment dated 15th of April,
1996 in A.S.No12 of 1996 and batch on the file of the Principal Subordinate Judge,
Srikakulam, reversing the judgment and decree in O.S.No.87 of 1980 on the file of the
District Munsif, Palasa.”
       12. Before the High Court in the second appeals and batch, the following questions
were taken into consideration:
          (1) Whether the Sannad granted in 1804 to Tarla Estate describing Kambirigam
                 village as Jagir assumed the character of an “Estate” within the meaning of
                 Estate Abolition Act to the effect that the landlords could dispossess the
                 tenants on that count?
          (2) Is the Civil Court empowered to set aside the orders of the three statutory
                 authorities viz., Tehsildar, District Collector and the Commissioner of Land
                 Revenue, when no challenge was made to their orders holding the tenants
                 as cultivators of the land in question?
       13. After perusing the judgments of the Courts below, however, the High Court was of
the opinion that the question whether the Sannad granted in 1804 assumed the character
of an Estate within the meaning of Estate Abolition Act was of no consequence at all,
because factum of the grant of sannad in 1804 itself was doubtful. The tenants had not
adduced any evidence to prove that the rights of the landlords, if any, had vested in the
Government. In the impugned judgment, the High Court came to a conclusion that the issue
No.1 should not be examined in view of the aforesaid conclusion arrived at by it. For
appreciation of the finding arrived at by the High Court, we may reproduce the same:
        “However, on going through the plaint O.S No. 75 of 1980 it appears that no plea
        was made in that regard. The only averment made in the plaint is to the effect that
        the plaint schedule land was a portion of the pre-settlement unenfranchised inam in
        Kambirigam Mokhasa in the erstwhile Tarla Estate, and the Tarla Estate was
        abolished by the Government under the Act XXVI of 1948 but Kambirigam Mokhasa
        village was not taken over as it was not an “Estate” or an Inam Village within the
        meaning of the Abolition Act and that no patta was granted either to the defendants
        or their predecessors in interest either under the Abolition Act, 1948 or Act XXXVII
        of 1956. The defendants therefore lost their right, if any, in the plaint schedule land
        as it vested in the Government as stated in the concluding part of Para 3 of the
        plaint. The plaintiffs, who are the appellants before us do not seem to have
        produced any document in respect of these averments made in paragraph 3 of the
        plaint. I am, therefore, of the opinion that no useful purpose would be served in
        examining this question whether the respondents acquired any right to dispossess
        the appellants.”
       14. We have carefully examined these findings of the High Court and after carefully
examining the same, we do not find any reason to differ from the conclusions arrived at by
the High Court on such question. Accordingly, we agree with the views expressed by the
High Court on the question No.1 as noted herein above.
       15. Let us now consider the question No.2 as noted herein earlier. The said question
is whether the Civil Court was justified in setting aside the orders of three statutory
authorities, namely the Tehsildar, the District Collector and the Commissioner of Land
Revenue without there being any challenge to these orders.
       16. On this question, the High Court, after considering the relevant statutes on the
subject and after considering the material evidence on record came to a conclusion that the
decision of the Tehsildar which came subsequent to the filing of the suit i.e., on 10th of
September, 1984, which was affirmed by the District Collector and the Commissioner of
Land Revenue, had achieved the status of finality. The High Court even came to the
conclusion that even independent of that proposition the evidence, however, thin it may be,
has weighed in favour of the persons who claimed to be the cultivators of the disputed
lands. In the impugned judgment, the High Court had accepted the finding of the Tehsildar
which stood in favour of the tenants that they had been cultivating the lands in question
since time immemorial. In view of the findings arrived at, the Appeals of the tenant were
allowed by the High Court in S.A.Nos.361, 365, 366, 374, 383, 384, 391, 393, 394, 395,
396, 397, 398, 399, 400, 401,402, 403, 404 of 1996, and the judgment of the first
appellate Court in A.S.No.12 was set aside.
       17. While accepting the order of the Tehsildar dated 10th of September, 1984, the
High Court referred to the provisions of Andhra Pradesh Record of Rights in Land Act, 1971
and after considering the decisions of Abdulla Bin Ali v. Galappa, AIR 1985 SC 577, State of
Tamil Nadu v. Ramalinga Samigal Nadam, AIR 1986 SC 794, Sangubhotla Venkataramaiah
v. Kallu Venkataswamy, AIR 1976 AP 402, which discussed the principles relating to
exclusion of jurisdiction of the Civil Courts by Statutory Tribunals, came to the conclusion
that the order of the Tehsildar dated 10th of September, 1984 having achieved the status
of finality cannot be upset by the Civil Court. The High Court further found that the tenants
were cultivating the land in question and, therefore, they were entitled to a decree for
permanent injunction against the landlords and accordingly the High Court allowed
S.A.Nos.361, 365, 366, 374, 383, 384, 391, 393, 394, 395, 396, 397, 398, 399, 400,
401,402, 403, 404 of 1996, and the judgment of the first appellate Court in A.S.No.12 was
set aside.
       18. That apart, from the impugned judgment, it is found that the High Court
concluded in the following manner :
         “.... the fact remains that the decision of the Revenue Authorities which came
         subsequent to the filing of the civil suits stood unchallenged and not contradicted.
         The Tehsildar order dated 10th of September, 1984, therefore, achieved the status
         of finality. On that account, therefore, the landlords lost complete ground for
         denying the tenancy rights of the tenants-appellants over the disputed lands.
         However, even independent of that proposition the evidence howsoever thin it may
         be, has weighed in favour of the persons who claim to be cultivators of the disputed
         land. The Tehsildar‟s second report speaks volumes about the tenant‟s case that
         they have been cultivating the disputed lands since the times of their ancestors and
         I am loath to disregard the same. The tenants-appellants‟ appeals therefore deserve
         to be allowed. Hence, the appeals bearing No. 361, 365, 366, 367, 374, 383, 384,
         392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 401, 403 and 404 of 1996 are
         allowed and the impugned judgment and the order dated 15.4.1996 in A.S. No. 12
         of 1996 and batch of lower appellate Court is quashed and set aside. No costs.”
       19. In view of our discussions made herein above and in view of the fact that the
High Court had granted a decree for permanent injunction in favour of the tenants mainly
on the basis that the tenants were in possession and cultivation of the disputed lands and
after considering the fact the landlords had failed to prove their possession and cultivation
in respect of the lands in question by producing reliable and material evidence before the
Court. Accordingly, as noted herein above, by the impugned judgment, the High Court had
allowed the second appeal and granted a decree for permanent injunction in favour of the
tenants/appellants who are respondents before us. Such being the position, we do not find
any merit in these appeals so far as the landlords/appellants are concerned. However, the
landlords filed a review petition being Review Petition No.6980 of 1997 and batch against
the group of second appeals, namely, S.A.No.361 of 1996 and batch under Section 114
read with Order 47, Rule 1 of the Code of Civil Procedure. Among the many grounds that
were taken, the High Court found merit only in one ground which is as follows:
            (1) When there was no defence and no proof emerging from the documentary
                  or oral evidence, the suits filed by the landlords could not be dismissed as
                  the extent claimed by the tenants/appellants was only 19.80 Acres.
       20. Accordingly, the Court found it proper to insert a clarification in the operative
part of the judgment under review:
         “The tenants appeal covering a total extent of Ac. 19.80 cents, therefore, deserved
         to be allowed. Hence, the Appeals bearing Nos. 361/96, 365/96, 366/96, 367/96,
         384/96, 392/96, 393/96, 394/96, 395/96, 396/96, 399/96, 400/96 and
        401/96 are allowed, covering a total extent of Ac. 19.80 cents as mentioned in the
        schedules in the respective plaints filed by the tenants out of the total extent of Ac.
        181.90 cents of lands claimed in the respective plaints filed by the landlords in their
        respective plaints and the impugned judgment and order dated 15th of April, 1996
        in A.S. No. 12 of 1996 and batch of the lower appellate Court is quashed and set
        aside. The landlords‟ claim to the aforesaid extent of Ac. 19.80 cents, thus, stands
        dismissed and to that extent only the Second Appeals Nos. 374/96, 383/96,
        397/96, 398/96, 402/96, 403/96 and 404/96 stand partly allowed. No costs.”
       21. So far as the order of the High Court in the review petition and batch is
concerned, we do not find any ground to upset the order passed in review petition as we
find that the High Court in the original judgment in the second appeals had considered not
only the second appeal being A.S.No.12 of 1996 and batch but also the second appeal filed
against A.S.No.11 of 1996 and batch. That apart, the tenants/respondents filed their suit
for permanent injunction limiting their claim to the extent of 19.80 Acres of land and,
therefore, the High Court was fully justified in reviewing the said judgment allowing the
second appeal of the tenants only to the extent of 19.80 Acres of land. Accordingly, we do
not find any ground to interfere with the order of the High Court reviewing the second
appeals and batch in the manner indicated above in the exercise of our discretionary power
under Article 136 of the Constitution.
       22. For the reasons aforesaid, we do not find any merit in these appeals filed before
this Court and, accordingly, the appeals are dismissed. There will be no order as to costs.

                                                                                          Appeals dismissed.



                                       [2010 (1) T.N.C.J. 476 (Mad)]
                                           MADRAS HIGH COURT
BEFORE :
              R. MALA, J.
                                   THANGAVEL PADAYACHI                                               …Appellant
                                                      Versus
                                          RAJAMANICKAM                                            …Respondent
                    [Second Appeal No. 314 of 2003, decided on 5 January, 2010]
                                                                              th


        Civil Procedure Code, 1908—Section 100—Second appeal—Appellant borrowed money and executed mortgage deed—
Respondentfiledsuitfordecreeofmortgage—DecreedbyappellateCourt—Hence,thisappeal—Mortgagedeedsupportedbywitness—Bare
statementnowitnessproducedbyappellanttoshowthatmoneywasrepaid—Hence,appellateCourtrightlydecreedsuit—Nointerference
warranted.
                                                                                                      (Paras10to13)
        Counsel.—Mr. R. Subramaniam, for the appellant; No appearance for the respondent.
                                                    JUDGMENT
        R. MALA, J.—The second appeal is filed by the defendant against the judgment and
decree dated 17.6.2002 in A.S.No.147 of 2001 on the file of the Principal District Court,
Cuddalore, modifying the judgment and decree dated 28.6.2001 in O.S.No.249 of 1999 on
the file of the Additional Sub-Court, Vridhachalam.
        2. The averments in the plaint are as follows:
        The defendant is the owner of the suit properties. He borrowed Rs.20,000/- from the
plaintiff on 31.10.1988 and executed a mortgage deed in respect of the suit properties and
agreed to repay the same with interest @ 12% p.a. But inspite of repeated demands, he
never repaid the amount. Hence, he gave a notice and after receipt of the notice, the
defendant replied with false allegations. Hence, the plaintiff came forward with the suit for
preliminary decree of mortgage and for costs. He prayed for a decree.
        3. The gist and essence of the written statement filed by the defendant are as
follows:
        The suit is not maintainable. The defendant‟s son, the plaintiff and the attestors of
mortgage deed are working in abroad. The defendant‟s son Porkai Pandian sent
Rs.10,000/- by way of „hundial’ through the plaintiff. He also promised to send another
Rs.10,000/- by way of ‘hundial’ through the other person. Since the defendant got third
marriage, Porkai Pandian feared that he has encumbered over the properties and so, he
has not sent Rs.10,000/-. The simple mortgage is not supported by Rs.10,000/-. The
averments mentioned in the simple mortgage deed are not true. In the year 1972, he dug a
well. He has obtained electricity service connection in 1976 itself and so, the averments in
the suit mortgage deed are not correct. At the time of registration of the mortgage deed, no
amount has been paid. So, at the time of mortgage, no amount has been received by him.
The defendant having financial status, lent money to others and so there is no need for him
to borrow money from the plaintiff. So, he is not liable to pay any amount. It is further
stated that Rs.9,600/- which was received by him through „hundial’ sent by his son, has
been repaid. So, he prayed for dismissal of the suit.
        4. The trial Court, after considering the averments made in the plaint and in the
written statement, framed two issues and considering the oral evidence of P.Ws.1 to 3,
D.W.1, and Exs.A-1 to 4, decreed the suit and preliminary decree of mortgage for
Rs.10,000/- has been passed. Against that, the plaintiff preferred appeal. Learned first
appellate Judge, after considering the arguments of both the counsel, has framed three
points for determination and allowed the appeal and modified the judgment and decree of
the trial Court and decreed the suit as prayed for in the plaint and preliminary decree of
mortgage has been passed. One month time was granted for payment. Against that, the
defendant has come forward with this second appeal.
        5. At the time of admission of the second appeal, the following substantial questions
of law were framed for consideration:
     “(i)     Whether in law the lower appellate Court was right in failing to see that once the
              defendant had discharged the burden of proving that there were doubts
              regarding consideration for Ex.A-1, it was for the plaintiff to prove his case under
              Section 114 of         the Evidence Act read with Section 118 of the Negotiable
              Instruments Act?
     (ii)     Whether in law the lower appellate Court was right in failing to see the
              discrepancies in the plaint and deposition while decreeing the suit in entirety?”
        6. Substantial questions of law:
        The respondent as plaintiff filed the suit for recovery of money due on mortgage. The
defendant raised a plea that the mortgage is not supported by consideration and discharge.
The trial Court has decreed the suit for Rs.10,000/-. Against that, the respondent-plaintiff
preferred appeal. The appeal has been allowed, modifying the judgment and decree of the
trial Court and the suit has been decreed as prayed for in the plaint. Against that, the
present second appeal has been preferred by the defendant.
       7. Learned counsel for the appellant-defendant would contend that Ex.A-1 is dated
31.10.1988 and the suit has been filed on 16.7.1999. Notice has been issued and the
mortgage is not supported by consideration of Rs.10,000/-. He has repaid that amount
also. So, the trial Court has considered this aspect and came to the correct conclusion. The
first appellate Court has not considered the same. He further stated that as per the
direction of this Court, 50% of the decree amount has been deposited. Hence, he prayed for
allowing the second appeal.
       8. The respondent-plaintiff would contend that execution of Ex.A-1 is admitted. Since
the appellant-defendant has not repaid the debt amount, notice has been issued under
Ex.A-2. The appellant-defendant has given a reply and in that it is stated that the mortgage
has not been supported by consideration to the tune of Rs.10,000/- and he also averred
that he has repaid the amount of Rs.9,600/- on 10.11.1996. In Ex.A-4 reply notice, the
appellant-defendant has stated that he is ready to repay the principal amount of
Rs.10,000/- with interest from 30.10.1996. But in his written statement, he has taken a
contrary view. His defence and reply notice prove that he has not come to the Court with
true facts. The first appellate Court has considered these aspects in proper perspective and
prayed for dismissal of the second appeal.
       9. The execution of Ex.A-1 simple mortgage, is admitted. In his written statement, the
appellant-defendant has stated as to in what circumstances, Ex.A-1 came into existence.
But it is the duty of the appellant-defendant to prove the same. Except the ipse-dixit of the
appellant-defendant in the written statement, no oral or documentary evidence is available
to show that Ex.A-1 has come into existence as alleged by the appellant-defendant in his
written statement. It is pertinent to note that before filing the suit, the respondent-plaintiff
has issued notice under Ex.A-2, which has been received by the appellant-defendant under
Ex.A-3 acknowledgement card. The appellant-defendant sent reply under Ex.A-4. In Ex.A-4,
he categorically admitted the execution of the mortgage deed, but he has stated that he
has received only Rs.10,000/- alone. He also stated that the defendant on 10.11.1996, has
calculated interest and paid Rs.9,600/- in the presence of Muthazhagan, son of Perumal
and Ramasamy, S/o Govindasamy. Then, he also fairly conceded that in Ex.A-4 that he is
ready to pay Rs.10,000/- principal amount and also interest from 31.10.1996. Since he
denied that the mortgage is not supported by consideration to the tune of Rs.10,000/- and
partial discharge, the respondent-plaintiff has come forward with the suit.
       10. At that time, the appellant-defendant raised a different defence, stating that
Ex.A-1 has come into existence since he got the mortgage and through his son, he has paid
Rs.10,000/- by way of ‘hundial’ to the plaintiff and he agreed to send ‘hundial’ through
another person, but the respondent-plaintiff has not received the same and without
safeguarding the properties from his father who has got mortgage, Ex.A-1 came into
existence. To substantiate the same, none has been examined. Per contra, the respon-dent-
plaintiff has examined himself as P.W.1 and P.W.2 Chinnappan and even though one
Alagaperumal has been examined as P.W.3, he has not supported the case neither the
plaintiff nor the defendant. In such circumstances, the earlier version of the appellant-
defendant is clearly proved that he executed Ex.A-1 and so, the burden is upon him to prove
that it is not supported by consideration to the tune of Rs.10,000/-. As already stated,
except the ipse-dixit of the appellant-defendant in the written statement, no one has been
examined to prove that Ex.A-1 is not supported by consideration. That fact has been
considered by the first appellate Court. I am of the opinion that Ex.A-1 is fully supported by
consideration to the tune of Rs.20,000/-. For the reasons stated above, the respondent-
plaintiff has proved his case under Section 114 of the Indian Evidence Act that Ex.A-1 is
fully supported by consideration.
       11. It is to be seen that whether the appellant-defendant has discharged the loan to
the tune of Rs.9,600/-. But no evidence is available. In his written statement, in page 4, the
appellant-defendant has stated that he has paid Rs.9,600/-. To prove the same, he has not
examined any witness. But in his reply notice Ex.A-4, he has stated that he paid Rs.9,600/-
on 10.11.1996 calculating interest, in the presence of Muthuazhagen, son of Perumal and
Ramaswamy, son of Govindan. But that also has not been proved by him by way of
examining his witnesses. So, the partial discharge was also not proved by the appellant-
defendant.
       12. So, I am of the opinion that the appellant-defendant has not paid any single pie
for the amount due under Ex.A-1 mortgage deed. In the previous paragraphs of this
judgment, it was decided that Ex.A-1 is fully supported by consideration to the tune of
Rs.20,000/- and the discharge has not been proved by the appellant-defendant. So, the
appellant-defendant is liable to pay the amount due on Ex.A-1 as prayed for in the plaint.
Hence, I do not find any irregularity or illegality in the judgment and decree passed by the
first appellate Court. So, I am forced to concur with the findings of the first appellate Court.
The substantial questions of law are answered accordingly.
       13. In fine, the second appeal is dismissed. The judgment and decree of the first
appellate Court are confirmed. No costs.
       14. It is stated by learned counsel for the appellant-defendant that the appellant-
defendant has already deposited Rs.19,638/- before the trial Court, as per the order of this
Court, dated 27.7.2006 in C.M.P.No.2926 of 2003 and so, the said amount is to be given
credit to the present decree amount. Two months‟ time is now granted to the appellant-
defendant for payment of the balance amount.
                                                                             Appeal dismissed.



                                       [2010 (1) T.N.C.J. 480 (Mad) (MB)]
                                              MADRAS HIGH COURT
                                               (MADURAI BENCH)
BEFORE :
               A. SELVAM, J.
                                               SARAL SAROJA                                                   …Appellant
                                                      Versus
                                               SIMSON                                                       …Respondent
                                [S.A. No.827 of 1998, decided on 4 January, 2010]
                                                                             th


           Civil Procedure Code, 1908—Section 100—Tamil Nadu Buildings (Lease and Rent Control) Act, 1960—Section 10(1)—Second
appeal—Suitfordeclaration,recoveryofpossessionandmesneprofit—Appellantdeniedtitleandclaimedpermanenttenancy—Suitdecreed
uptoappellateCourt—Legalityof—Held,plaintiffoughttohaveinvokedsecondprovisoofSection10(1)andonlyaftergettingafindingfromRent
Controller,hecanfilesuitforeviction—Sinceabovecoursenotadoptedhence,concurrentfindingliabletobesetaside.

                                                                     (Paras20,21,28and31)
      Case law.—1998 (1) CTC 195; AIR 1991 SC 1094; 1997 (1) MLJ 103; 1990 (1) LW
97; 1997 (2) MLJ 461; 2003 (2) MLJ 732; AIR 2003 SC 2508; AIR 1999 SC 294—referred.
        Counsel.—Mr. A. Arumugam, for the appellant; Mr. T.S.R. Venka-tramana, for the
respondent.
                                               JUDGMENT
        A. SELVAM, J.—This second appeal has been directed against the concurrent
Judgments passed in Original Suit No.7 of 1990 by the District Munsif Court,
Ambasamudram and in Appeal Suit No.7 of 1994 by the Sub-Court, Ambasamudram.
        2. The respondent herein as plaintiff has instituted Original Suit No.7 of 1990 on the
file of the trial Court for the reliefs of declaration, recovery of possession and also for future
mesne profits, wherein the present appellant has been shown as sole defendant.
        3. It is averred in the plaint that the suit property is originally belonged to the father
of the plaintiff by name Kovil Pichai Nadar and he enjoyed the same uninterruptedly for
more than a statutory period. The plaintiff has purchased the suit property under a
registered sale deed dated 26.12.1988. After purchase, the plaintiff has asked the
defendant to vacate the suit property. But the defendant has agreed to enjoy the suit
property on a monthly rental of Rs.75/- and also given assurance to vacate the suit property
within six months. The defendant has paid monthly rent upto April, 1989 and thereafter she
failed to pay monthly rent. The plaintiff has issued a legal notice on 13.10.1989 to the
defendant and even after receipt of the same, she has failed to vacate the suit property.
She has also given a legal notice contending false averments. It is false to say that the suit
property has been allotted to the husband of the defendant in a family arrangement. It is
also equally false to say that the husband of the defendant has improved the suit property
by way of spending Rs.20,000/-. No family arrangement has been made as stated on the
side of the defendant. Under the said circumstances, the present suit has been instituted
for the reliefs sought for in the plaint.
        4. It is averred in the written statement filed on the side of the defendant that it is
false to contend that the plaintiff has purchased the suit property under a registered sale
deed dated 26.12.1988. The suit property has been given to the husband of the defendant
in a family arrangement and subsequently he made improvements and lived along with his
family members. The husband of the defendant has served in a mill and he passed away on
21.3.1988 and after his demise, the plaintiff has approached the defendant to give the job
of her husband to him and the job of the defendant has been given to her brother by name
Selvaraj. Since the demand made by the plaintiff has not been conceded by the defendant,
the father of the plaintiff has created a false document dated 26.12.1988. The defendant
has been residing in the suit property as of its rightful owner. It is false to say that the
defendant has agreed to pay monthly rental of Rs.75/-. The defendant has given a suitable
reply notice to the plaintiff. It is also equally false to say that in a portion of the suit
property, the house mentioned in the plaint is situate. There is no merit in the suit and the
same deserves dismissal.
        5. On the basis of the divergent pleadings raised on either side, the trial Court has
framed necessary issues and after scrutinising both the oral and documentary evidence has
decreed the suit only in respect of the reliefs of declaration and recovery of possession.
Against the Jugment and decree passed by the trial Court, the defendant as appellant has
preferred Appeal Suit No.7 of 1994 on the file of the first appellate Court.
        6. The first appellate Court after hearing both sides and upon reappraising the
evidence available on record has dismissed the appeal, whereby and whereunder
confirmed the Judgment and decree passed by the trial Court. Against the concurrent
Judgments passed by the Courts below, the present second appeal has been filed at the
instance of the defendant as appellant.
       7. At the time of admitting the present second appeal, the following substantial
question of law has been framed for consideration:
         “Whether in any event the appellant is entitled to the benefits of Section 51 of the
         Transfer of Property Act?”
       8. At the time of hearing arguments, the following additional substantial question of
law has been formulated for consideration:
         “Whether the suit for eviction at the instance of landlord against the tenant is
         maintainable in a Civil Court without obtaining a finding from the Rent Controller in
         the Landlord‟s Rent Control Original Petition for eviction that the denial of tenancy
         by the tenant is mala fide?”
       9. The sum and substance of the case of the plaintiff is that the suit property is
originally belonged to Kovil Pichai and he enjoyed the same for more than a statutory
period and the plaintiff has purchased the same under a registered sale deed dated
26.12.1988 and subsequently asked the defendant to vacate the suit property and the
defendant has agreed to enjoy the same for a period of six months on a monthly rental of
Rs.75/- and she paid monthly rent upto April, 1989 and subsequently she committed
default and thereafter the plaintiff has chosen to give notice dated 13.10.1989 and after
receipt of the same, the defendant has given a false reply notice. Under the said
circumstances, the present suit has been instituted for the reliefs sought for in the plaint.
       10. Per contra, it has been contended on the side of the defendant that the suit
property has been given to the husband of the defendant in a family arrangement and he
served in a mill and by way of spending Rs.20,000/- he improved the suit property and after
his demise the defendant and her family members are living in the suit property as rightful
owners and it is false to say that the defendant has agreed to enjoy the suit property for a
period of six months on a monthly rental of Rs.75/- and further it is false to say that in a
portion of the suit property, the house mentioned in the plaint is situate and therefore, the
plaintiff is not entitled to get the reliefs sought for in the plaint.
       11. As enunciated earlier, the trial Court has granted the reliefs of declaration and
recovery of possession in favour of the plaintiff. The first appellate Court has confirmed the
Judgment and decree passed by the trial Court. Under the said circumstances, the Court
has to analyse as to whether the concurrent Judgments passed by the Courts below are
perfectly correct or the same need interference?
       12. Even though at the time of admitting the present second appeal a substantial
question of law has been formulated to the effect as to whether the appellant/defendant is
entitled to get the benefits of Section 51 of the Transfer of Property Act, the real substantial
question of law emerged in the second appeal is as to whether the present suit is legally
maintainable in a Civil Court without getting a finding under Section 10 of the Tamil Nadu
Buildings (Lease and Rent Control) Act, 1960.
       13. Even at the risk of jarring repetition the specific case of the plaintiff is that the
suit property is originally belonged to his father viz., Kovil Pichai and he purchased the
same under a registered sale deed dated 26.12.1988 and subsequently asked the
defendant to vacate the suit property and the defendant has agreed to enjoy the suit
property for a period of six months on a monthly rental of Rs.75/- and upto April, 1989 she
paid monthly rent properly and thereafter committed default in payment of monthly rent
and thereafter a notice dated 13.10.1989 has been given and the defendant after receipt
of the same has given a legal notice stating that the suit property has been given to her
husband in a family arrangement.
       14. From the close reading of the averments made in the plaint, the Court can easily
discern that the specific case of the plaintiff is that the defendant has been enjoying the
suit property as a tenant of the plaintiff and the defendant has denied his title and also
claims right of permanent tenancy over the suit property. Before analysing the rival
submissions advanced by the learned counsel appearing for both sides, it would be apropos
to look into the provision of Section 10 of the Tamil Nadu Buildings (Lease and Rent
Control) Act, 1960 and the same reads as follows:
         “10. Eviction of tenants.—(1) A tenant shall not be evicted whether in execution of
                 a decree of otherwise except in accordance with the provisions of this
                 Section or Sections 14 to 16:
                 Provided that nothing contained in the said Sections, shall apply to a tenant
                 whose landlord is the Government:
                 Provided further that where the tenant denies the title of the landlord or
                 claims right of permanent tenancy, the Controller shall decide whether the
                 denial or claim is bona fide and if he records a finding to that effect, the
                 landlord shall be entitled to sue for eviction of the tenant in a Civil Court and
                 the Court may pass a decree for eviction on any of the grounds mentioned in
                 the said Sections, notwithstanding that the Court finds that such denial does
                 not involve forfeiture of the lease or that the claim is unfounded. ....”
       15. The said provision can be vivisected as follows:
          (a)    A tenant shall not be evicted either in execution of a decree or otherwise
                 and he or she can be evicted either under the provisions of Section 10 or
                 under Sections 14 to 16 of this Act.
          (b)    The provisions of Section 10 of this Act are not applicable in a case, where
                 landlord is Government.
          (c)    If a tenant denies the alleged title of the landlord or claims right of
                 permanent tenancy, the only course open to the landlord is to file a petition
                 under this Section so as to get a finding to the effect as to whether such a
                 denial or claim is bona fide. If the Rent Controller gives a finding to that
                 effect, the next course open to the landlord is to file a suit for eviction in a
                 Civil Court and then only the Civil Court is competent to pass a decree for
                 eviction on any of the grounds mentioned in this section.
       16. With these legal backdrops, the Court has to further analyse the rival case of the
plaintiff and defendant.
       17. The learned counsel appearing for the appellant/defendant has laconically
contended that the specific case of the plaintiff is that the defendant has been enjoying the
suit property as his tenant on a monthly rental of Rs.75/- and the specific case of the
defendant is that the suit property has been given to her husband in a family arrangement
and he made improvements by way of spending Rs.20,000/- and after his demise, the
defendant and her family members are enjoying the suit property as of its rightful owners
and therefore, the defendant claims right of permanent tenancy and she also denies the
alleged title of the plaintiff. Under the said circumstances, the plaintiff ought to have filed a
petition under Section 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act,
1960. But the plaintiff has failed to invoke the said provision and directly filed the present
suit for the reliefs of declaration, recovery of possession and also for future mesne profits.
Under the said circumstances the Civil Court has no jurisdiction to entertain the present suit
and therefore, the concurrent Judgments and decrees passed by the Courts below are
totally illegal and also void. In support of his contention, he has drawn the attention of the
Court to the following decisions:
           (a)     In M/s. East India Corporation Ltd. v. Shree Meenakshi Mills Ltd., AIR 1991
                   SC 1094, the Honourable Apex Court has held as follows:
          “What is stated in the second provision is Section 10(1) is the sole circumstance in
          which the Civil Court is invested with jurisdiction in matters of eviction. But the
          jurisdiction cannot be invoked otherwise than as stipulated in the second proviso.
          This means that the condition precedent to the exercise of jurisdiction by a Civil
          Court is that the tenant should have denied the title of the landlord or claimed right
          of permanent tenancy and the Controller should, on such denial or claim by the
          tenant, reach a decision whether such denial or claim is bona fide. Upon such
          decision, the Controller must record a finding to that effect. In that event, the
          landlord is entitled to sue for eviction of the tenant in a Civil Court. Where these
          conditions are satisfied, the Civil Court will have jurisdiction to pass a decree for
          eviction on any of the grounds mentioned in Section 10 or Sections 14 to 16,
          notwithstanding that the Court has found that the tenant‟s denial of the landlord‟s
          title does not involve forfeiture of the lease, or, his claim of right of permanent
          tenancy is unfounded. Except to this limited extent, the jurisdiction of the Civil Court
          in matters of eviction of a tenant is completely barred and the jurisdiction in such
          matters is vested in the Tribunals set up under the statute.”
        Further it is held that “.... It is a fundamental principle well established that a decree
passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up
whenever and wherever it is sought to be enforced or relied upon, even at the stage of
execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary
or territorial, or whether it is in respect of the subject-matter of the action, strikes at the
very authority of the Court to pass any decree, and such a defect cannot be cured even by
consent of parties. If the question now under consideration fell to be determined only on
the application of general principles governing the matter, there can be no doubt that the
District Court of Monghyr was coram non judice, and that its Judgment and decree would be
nullities.”
        The Honourable Apex Court has vividly held that if the concerned tenant has denied
title of the landlord, or claims right of permanent tenancy, the concerned landlord ought to
have obtained a finding under Section 10(1) (second proviso) of the Tamil Nadu Buildings
(Lease and Rent Control) Act, 1960 and only after getting necessary finding, he can
institute a suit in a civil forum so as to evict the tenant under any of the grounds mentioned
in the said section. Further it is held that a decree passed by a Court without jurisdiction is
nothing but nullity and defect of jurisdiction whether it is pecuniary or territorial can be
raised even at the stage of execution or in collateral proceedings. Further the Court, which
passed a decree is nothing but coram non judice (before a Judge or Court that is not the
proper one, or that cannot take legal cognizance of the matter).
        18. In R.M.Sundaram @ Meenakshi Sundaram and another v. The Correspondent,
National Elementary School, Pundarigakulam, Vadakarai, Nagapattinam, 1998 (I) CTC 195,
this Court has held that “denial of title of landlord by tenant - Rent Controller has to give
finding that such denial of title is bona fide. Such finding is condition precedent for a Civil
Court to decide title and direct eviction”. Further this Court has held that “there are two
provisos to Section 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960
and the Second Proviso says that where the tenant denies the title of the landlord or claims
right of permanent tenancy, the Controller shall decide whether the denial or claim is bona
fide and if he records a finding to that effect, the landlord shall be entitled to sue for
eviction of the tenant in a Civil Court and the Court may pass a decree for eviction on any of
the grounds mentioned in the said Sections, notwithstanding that the Court finds that such
denial does not involve forfeiture of the lease or that the claim is unfounded.”
       19. In fact the decision reported in AIR 1991 SC 1094, M/s.East India Corporation
Ltd. v. Shree Meenakshi Mills Ltd., acts as a precursor of the judgment rendered by this
Court. From the conjoint reading of the decisions referred to supra, the ultimate corollary is
that if a tenant denies the alleged title of his or her landlord or claims right of permanent
tenancy, the next course open to the landlord is to file a petition under the second proviso
of Section 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and the
Rent Controller should give a necessary finding to the effect as to whether the denial or
claim is bona fide or not and after getting a finding to that effect, a civil suit can be filed for
eviction of the tenant on any of the grounds mentioned in the said section or under
Sections 14 to 16.
       20. In the instant case, as elucidated earlier, the defendant has clearly denied the
alleged title of the plaintiff and she also sets up a permanent tenancy over the suit
property. Since the defendant has clearly denied the title of the plaintiff and also sets up
permanent tenancy over the suit property, the plaintiff ought to have invoked the second
proviso of Section 10(1) of the said Act and only after getting a finding from the concerned
Rent Controller, he can file a suit for eviction. But the plaintiff has failed to follow the
aforesaid legal procedure. Since the plaintiff has failed to follow the aforesaid legal
procedure, it is needless to say that the trial Court as well as the first appellate Court are
nothing but corams non judice and the concurrent judgments passed by the Courts below
are also nothing but nullities.
       21. The additional substantial question of law formulated in the present second
appeal is as to whether the present suit is not legally maintainable in view of Section 10(1)
of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. It has already been
discussed in detail that without invoking the said provision, the present suit is not legally
main-tainable. Therefore, it is pellucid that the additional substantial question of law
formulated in the present second appeal is decided in favour of the appellant/defendant.
       22. Now the Court has to look into the fatuous exercises made on the side of the
respondent/plaintiff.
       23. The learned counsel appearing for the respondent/plaintiff has vehemently
contended that the respondent/plaintiff is the absolute owner of the suit property and the
appellant/defendant has been enjoying the same as a tenant and since the
appellant/defendant has denied the title of the respondent/plaintiff, the present suit has
been instituted and the same is legally maintainable and further the suit property is not
only a building but also a vacant site and on that ground also the present suit is legally
maintainable and the Courts below after considering the rival evidence adduced on either
side, have rightly rejected the contention urged on the side of the appellant/defendant and
therefore, the concurrent judgments passed by the Courts below do not warrant
interference.
       24. In fact, the learned counsel appearing for the respondent/plaintiff has accited
the following decisions in support of his contention. (a) In Subbiah Pannaiyar v.
Shanmugavelayudham and others, 1997 (1) MLJ 103, this Court has held that “in the
present case, the property scheduled in the plaint is not only a building but also the
property where it is situated, i.e., property of an extent of two and a quarter cents and the
hut situated therein. The suit was for a declaration of title in respect of the land and
building and the recovery is sought for in respect of the land also. The Civil Court is
competent to decide on the ownership over the suit property and ownership over the
building. That is not something which comes within the jurisdiction of the Rent Controller.
The scope of enquiry under the second proviso to Section 10(1) of the Rent Control Act is
confined to the status of landlord and tenant which has nothing to do with the title to the
property. Hence, so far as the ownership of the building and the title to the property is
concerned the second proviso to Section 10(1) of the Rent Control Act will not be a bar for
filing a civil suit. But the right of the plaintiffs to recover the building on the basis of the
rental arrangement will be barred. At the most, it can be held that the plaintiff will not be
entitled to get recovery of the building and to that extent, the relief cannot be granted.”
       25. From the close reading of the decision referred to supra, two things are made
clear.
         (a)      If a suit has been instituted in respect of a building as well as a vacant site,
                  relief can be granted in respect of vacant site.
         (b)      With regard to building, the relief claimed in the suit cannot be granted.
       26. In the instant case, in the plaint it is averred to the effect that the demised
building is situate in a portion of the suit property and the remaining portion is a vacant
site. But in the written statement, at paragraph-5 it has been clearly stated that the
measurements given to the demised building in the plaint are totally false. Therefore, a
primordial duty is cast upon the plaintiff to prove that the demised building is situate in a
portion of the suit property and the remaining portion of the suit property is a vacant site.
But the plaintiff has not proved the same. Even assuming without conceding that the denial
made in the written statement is not genuine, so far as the building mentioned in the plaint
is concerned, the present suit is not legally maintainable in view of the decision rendered by
this Court.
         (b)      In Sankarlal Jain v. R.Kalavathi Ammal and two others, 1990 (1) LW 97, this
                  Court has held that “as per exemption mentioned in Section 30 (ii) of the
                  Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, a civil suit is
                  legally maintainable”.
       27. Of course, it is true that as per Section 30 of the said Act, a Civil Suit is legally
maintainable, since exemption has been granted therein. The suit property does not come
within the purview of the said section and therefore, the said decision is not applicable to
the facts of the present case.
         (c)      In S. Jaganathan Rao and four others v. M.G.Vital Rao, 1997 (2) MLJ 461,
                  this Court has held that “when the defendants 2 to 5 had specifically denied
                  the title of the respondent herein, then, there is no question of the existence
                  of landlord and tenant relationship between the parties. Under the said
                  circumstances civil suit is maintainable.” In fact, the decision rendered by
                  the Honourable Apex Court reported in AIR 1991 SC 1094, M/s.East India
                  Corporation Ltd. v. Shree Meenakshi Mills Ltd., has not been brought to the
                  notice of this Court and under the said circumstances, this Court has held
                  that the civil suit is maintainable as stated above and therefore, the finding
                  given by this Court in the decision referred to supra cannot be followed.
         (d)      In Dhandapani (died) and others v. Karpakam and others, 2003 (2) MLJ 732,
                  this Court has held that “on the point of denial of title by the tenant, the civil
                  suit is maintainable, without resorting to the provisions of the Tamil Nadu
                 Buildings (Lease and Rent Control) Act, 1960”, wherein also the decision
                 rendered by the Honourable Apex Court in M/s. East India Corporation Ltd. v.
                 Shree Meenakshi Mills Ltd., AIR 1991 SC 1094, has not been brought to the
                 notice of the Court. Under the said circumstances, this Court has held as
                 stated supra and therefore, the dictum mentioned in the said decision
                 cannot be attuned in the present cast.
          (e)    In Ramesh Chand Ardawatiya v. Anil Panjwani, AIR 2003 SC 2508, the
                 Honourable Apex Court has held that “the concerned dispute does not come
                 within the ambit of Section 75 (1) or 75(2) of Rajasthan Act and therefore,
                 Civil Court‟s jurisdiction is not excluded.”
       28. In the instant case, as per second proviso of Section 10(1) of the Tamil Nadu
Buildings (Lease and Rent Control) Act, 1960, concerned Civil Court is having jurisdiction
only on the basis of finding given by the concerned Rent Controller and therefore, the
jurisdiction of Civil Court is impliedly ousted initially and it gets its jurisdiction only on the
basis of the finding given by the Rent Controller. Therefore, it is quite clear that the facts
and circumstances mentioned in the decision referred to supra are not suitable to the
present case.
           (f)   In Ramendra Kishore Biswas v. State of Tripura and others, AIR 1999 SC
                 294, the Honourable Apex Court has held that “the relevant Service Rules
                 neither expressly nor by implication have taken away jurisdiction of Civil
                 Court to deal with service matter”. Under the said circumstances, it is not
                 proper at the stage of second appeal to raise a question to the effect that
                 the Civil Court has no jurisdiction.
       29. In the instant case, even at the risk of jarring repetition the Court would like to
point out that as per second Proviso of Section 10(1) of the Tamil Nadu Buildings (Lease
and Rent Control) Act, 1960, jurisdiction of Civil Court is impliedly barred at initial stage and
it gets its jurisdiction only on the basis of finding given by the concerned Rent Controller
and therefore, it is needless to say that the facts and circumstances of the present case are
totally alien to the facts and circumstances of the case mentioned supra and due to that
the decision mentioned supra is not applicable to the present case.
      30. It has already been discussed in detail that the present suit is not legally
maintainable in view of the second proviso of Section 10(1) of the Tamil Nadu Buildings
(Lease and Rent Control) Act, 1960. Therefore, the entire argument advanced by the
learned counsel appearing for the respondent/plaintiff is totally sans merit.
       31. The present suit has been instituted for the reliefs of declaration, recovery of
possession and also for future mesne profits. The trial Court has granted a decree for the
reliefs of declaration and recovery of possession. The first appellate Court has also
confirmed the judgment and decree passed by the trial Court. It has already been discussed
in detail and ultimately found that the present suit is not legally maintainable. The only
remedy available to the respondent/plaintiff is to file a petition under the second proviso of
Section 10(1) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 so as to get a
finding and after getting the same, he has to touch competent civil forum so as to evict the
appellant/defendant under any one of the grounds mentioned in the said section or under
Sections 14 to 16. Therefore, viewing from any angle, the concurrent judgments passed by
the Courts below are liable to be set aside since they are nothing but nullities.
       32. The first substantial question of law formulated in the present second appeal is
as to whether the appellant/defendant is entitled to get the benefits of Section 51 of the
Transfer of Property Act. Since additional question of law has been discussed in extenso
and decided in favour of the appellant/defendant, the first substantial question of law
formulated in the present second appeal need not be decided.
       33. In fine, this second appeal is allowed without cost. The judgment and decree
passed in Original Suit No.7 of 1990 by the District Munsif Court, Ambasamudram, upheld
in Appeal Suit No.7 of 1994 by the Sub-Court, Ambasamudram are set aside. The suit filed
in Original Suit No.7 of 1990 on the file of the District Munsif Court, Ambasamudram is
dismissed without cost.
                                                                            Appeal allowed.



                                          [2010 (1) T.N.C.J. 491 (Mad)]
                                              MADRAS HIGH COURT
BEFORE:
              C.S. KARNAN, J.
                         ROYAL SUNDARAM ALLINNCE INSURANCE COMPANY LTD.                                       ...Appellant
                                                        Versus
                                         PALANIAMMAL AND ANOTHER                                          …Respondents
                        [C.M.A. No. 636 of 2005, decided on 5 January, 2010]th


        MotorVehiclesAct,1988—Section173—Motoraccident—Whenpetitionerwalkingwithherhusbandfirstrespondent‟smotorcycle
dashedagainstherasaresultshesustainedfractureofbonesinherrightlegandhospitalized—Petitionernotabletostandorwalkofsquat—She
wasaged45-50yearsandemployedasCoolieandearningRs.5,000/-p.m.—Tribunalassessing50%disabilitygrantedRs.1,55,920/-as
compensationwith9%interestp.a.—Appealagainst—Held,Tribunaladoptedmultipliermethodofcalculationwhichisnotpertinenttothiscase—
Hence,compensationreducedtoRs.1,30,000/-with9%interestp.a.withpermissiontowithdraw50%oftheawardamount.
                                                                                                        (Paras3,12,19and20)
        Counsel:—Mr. S. Manohar, for the appellant; Mr. S.S. Swaminathan, for respondent 1,
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 decree, dated 2.8.2004, made in
M.C.O.P.No.331 of 2003, on the file of the Motor Accident Claims Tribunal (Fast Track Court
No.4), Coimbatore at Tiruppur, awarding a compensation of Rs.1,55,920/- with 9% interest
per annum, from the date of filing petition till the date of payment of compensation.
        2. Aggrieved by the said award and decree, the appellant/second respondent, Royal
Sundaram Alliance Insurance Company Ltd., has filed the above appeal praying to set aside
the said award and decree.
        3. The short facts of the case are as follows:
        On 9.4.2003, at about 8.45 p.m. when the petitioner was walking with her husband
on the Palladam to Udumalpet Main Road and when they were nearing Periapallam Bridge,
the first respondent‟s motorcycle bearing registration No.TN37 R5474, driven by its rider at
a high speed and in a rash and negligent manner, dashed against the petitioner. As a
result, the petitioner sustained fracture of bones in her right leg and took treatment at
Palladam Government Hospital. The petitioner took further treatment at Coimbatore
Government Hospital. As a result of the accident, the petitioner is not able to stand or walk
or squat. The movements of her right leg have become restricted. She is unable to move
around without the help of the others. Before the accident, the petitioner was employed as
a Coolie and was earning a sum of Rs.5,000/- per month. After the accident, she is not
able to go to work. As such, the petitioner has sustained permanent disability, loss of
income, pain and suffering and medical expenses and loss of earning capacity. Hence, the
petitioner has claimed a compensation of Rs.5,00,000/- from the first respondent, the
owner of the said motorcycle and the second respondent, its insurer, at the time of the
accident, under Section 166(1)A of the Motor Vehicles Act.
        4. Regarding the said accident, a criminal case has been registered at the
Kamanaicken Palayam Police Station as Crime No.76/2003.
        5. The second respondent, in his counter has resisted the claim stating that the age,
income and occupation of the petitioner and nature of injuries sustained by the petitioner
has to be proved. It is also submitted that the accident did not happened due to high speed
and rash driving of the driver of motorcycle as alleged in the claim but happened only due
to the carelessness of the petitioners, who crossed the road suddenly, without noticing the
two wheeler.
        6. It has further been submitted that the rider of the said two wheeler TN37 R5474
was not holding a valid and effective driving licence to drive the vehicle, which was involved
in the accident. It has also been submitted that the claim is excessive and without merits.
        7. On the petitioner‟s side, three witnesses were examined and seven documents
were marked as Exs.P1 to P7. On the respondents‟ side no witnesses were examined and
no documents were marked.
        8. The Motor Accident Claims Tribunal framed two issues for the consideration
namely:
      (i)     Whether the accident was caused due to the negligence and rash driving by the
              driver of the first respondent‟s vehicle? Is the petitioner entitled to receive
              compensation?
     (ii)     What is the quantum of compensation, which the petitioner is entitled to get?
        9. The Tribunal heard the arguments advanced on either sides. The petitioner was
examined as P.W.1. P.W.1, in her evidence had deposed that on 9.4.2003, at about 8.45
p.m. when she and her husband were walking on the mud road on the extreme left of the
mud road on the Palladam to Udumalpet Main Road and her husband was walking along
side pushing a cycle, the Motorcycle bearing registration No.TN37 R5474, driven by its rider
at a high speed and in a rash and negligent manner, without adhering to traffic rules, had
dashed against them. Even during cross-examination, the evidence given by P.W.1 has not
been refuted. The husband of the petitioner was examined as P.W.2 and his evidence was
in consonance with that of P.W.1. Even during his cross-examination, his evidence has been
firm. From an examination of Ex.P1-FIR, the manner of the accident is seen and it is also
seen that a criminal case been filed against the driver of the first respondent‟s vehicle
under Sections 279 and 337 of I.P.C. As such the Tribunal considering that no witnesses
have been examined or docu-ments advanced by the respondents‟ side, and on the
evidence given by the P.W.1 and P.W.2 and scrutiny of Ex.P1-FIR held that the accident was
caused only due to the high speed at which the first respondent‟s rider had driven his
motorcycle and his negligence and hence held that the first and second respondents are
jointly and severally liable to pay compensation to the petitioner.
        10. On the scrutiny of Ex.P5-copy of Accident Register, the age of the petitioner has
been given as between 45 and 50 years. Though the petitioner had stated that she was
earning a sum of Rs.5,000/- per month doing Coolie work, no documentary proof had been
advanced by her in support of this contention. The Tribunal, therefore, on considering her
evidence, age and occupation held that the petitioner could have earned a sum of
Rs.2,100/- per month. It is seen, on examination of Ex.P2-Medical Treatment Record, that
the petitioner had received treatment at Palladam Government Hospital from 10.4.2003 to
7.5.2003. From an examination of Ex.P3-copy of Accident Register, it is seen that the
petitioner had received minor injuries on her left knee, left foot heel and grievous fracture
in her right thigh.
        11. The Doctor, who had given the Disability Certificate to the petitioner was
examined as P.W.3. The P.W.3, in his evidence has deposed that the petitioner still
experiences pain in her right leg due to the improper setting of the fracture bone in her right
thigh. He has also deposed that the size and strength of the muscles as well as sensitivity
of her right thigh is diminished. It is also evident from the X‟rays taken of her right thigh
that the fractured bone has not set properly. Due to this, the petitioner is not able to sit,
walk and do her routine work as she was doing before the accident and hence, the Doctor
had stated that the petitioner had sustained a permanent disability of 50% and marked
Ex.P6, the Disability Certificate and Ex.P7-X‟rays. He had further stated on cross-
examination, that the petitioner had taken “Maavukattu Treatment” for two months and
that he had not seen the X‟rays of her leg immediately after this treatment.
        12. The Tribunal on considering the facts and circumstances of the case and after
considering the Doctor‟s evidence, decided that the disability sustained by the petitioner
could only be taken as 45%. The Tribunal adopting a multiplier of 13, relevant to the
petitioner‟s age assessed the loss of income due to disability as Rs.2,100/- x 12 x 13 x
45%=Rs.1,47,420/-. The Tribunal granted an award of Rs.500/- towards transport,
Rs.1,500/- for nutrition and Rs.6,500/- for pain and suffering incurred by the petitioner.
Considering that the petitioner had taken treatment only at Government Hospital, the
Tribunal did not grant compensation for medical expenses. In total, the Tribunal awarded a
sum of Rs.1,55,920/- together with interest at the rate of 9% per annum from the date of
filing the petition till the date of payment of compensation and directed the respondents to
jointly and severally deposit the above said award with interest into the credit of the
M.C.O.P.No.331 of 2003, on the file of the Motor Accident Claims Tribunal (Fast Track Court
No.4), Coimbatore at Tiruppur, within a period of one month from the date of its order. The
Advocate fees was fixed at Rs.6,118/-. The respondents were directed to pay the costs of
the petition to the petitioner. Further, the Tribunal directed that after such deposit of the
award is made, it was to be invested in a Nationalised Bank as fixed deposit for three years
and the petitioner was permitted to receive interest on such deposit, once in a month,
directly from the bank. The petitioner was directed to pay the balance court fee on the
award amount before receive the copy of the decree passed by the Tribunal.
        13. The learned counsel for the appellant has contended in his appeal that the
learned Tribunal failed to appreciate that as per the claim petition and Ex.A2-Hospital
Summary Discharge, the first respondent has suffered fracture of left leg, whereas, P.W.3,
has assessed the disability to the claimant in her right leg.
        14. It has been contended that the learned Tribunal failed to appreciate that even
according to P.W.1 and P.W.3, the claimant suffered fracture in the left thigh as borne out
by Exs.A2 and A3, whereas P.W.1 and P.W.3 in their oral evidence did not refer to any injury
to the left leg but referred only to a fracture in right thigh, and so the learned Tribunal had
failed to appreciate that as per Government Hospital Records, there was no fracture in the
right leg of petitioner and therefore the evidence of Exs.P.W.1 and P.W.3 were false.
        15. As such, it has been contended that as the assessment made by the Doctor in
the right leg has no relevance to the accident injuries and the alleged injury or fracture to
the right thigh and disability of 50% due to such injury has no bearing to the accident
injuries.
        16. As such, it has been contended that the award of Rs.1,47,420/- granted by the
Tribunal for alleged loss of income is erroneous, when the alleged disability did not relate to
accident injuries. The learned counsel for the appellant has also contended that in the
absence of proof of disability and in the absence of proof of any diminishing income or
reduction in rank or loss of job, the learned Tribunal was wrong in awarding a huge
compensation of Rs.1,55,920/-.
        17. As such, it has been prayed by the learned counsel for the appellant to set aside
the award and decree passed by the Tribunal.
        18. The learned counsel for the respondent argued that the claimant had sustained
bone fracture injuries in her thigh of leg. The fractured bone has not set and she has
difficulty in doing work as a Coolie. Further, the injured petitioner could not regain her
normal strength after the accident. Hence, she is unable to do Coolie work. She is an
illiterate lady and she depends upon her physical strength to earn her livelihood. Now, she
is unable to do any physical work due to the said accident.
        19. Considering the facts and circumstances of the case and argu-ments advanced
by the learned counsels on either sides, and Medical Certificate issued by the Doctor and
evidence adduced by the claimant and Doctor, there is a dispute regarding which, leg of the
petitioner has been affected due to the said accident. This Court opines that both the
parties have admitted that there is a fracture in one of the legs of the petitioner. As such,
the claimant‟s petition cannot be rejected based on this technical error, this Court holds
that she is entitled to get compensation. The Tribunal had adopted the multiplier method of
calculation to assess compensation. The Court opines that this method is not pertinent to
this case. Hence, the Court awards the compensation to the claimant as follows:
      (i)    For 50% disability               :    Rs.1,00,000/-
                                                    (taking Rs.2,000/- for
                                                    1% disability, as
                                                    claimant is a Coolie)
    (ii)    For pain and suffering
            undergone by the claimant          :    Rs.15,000/-
    (iii)   For nutrition                      :    Rs. 5,000/-
    (iv)    For transportation charges         :    Rs. 5,000/-
     (v)    For medical expenses               :    Rs.5,000/-
                                                    Rs.1,30,000/-
       In total, this Court grants an award of Rs.1,30,000/- together with interest at the rate
of 9% per annum from the date of filing the petition till the date of payment of
compensation, as this is found to be fair and equitable in the circumstances of the case.
       20. This Court had directed the appellant on 3.3.2005 to deposit the entire
compensation award amount with interest and costs, into the credit of the M.C.O.P.No.331
of 2003, on the file of the Motor Accident Claims Tribunal (Fast Track Court No.4),
Coimbatore at Tiruppur. Further, the Court had permitted the respondent/claimant to
withdraw 50%of the award amount. The same was withdrawn by the claimant.
       21. It is open to the respondent/claimant to withdraw the balance amount (i.e., after
deducting earlier withdrawn amount from the award granted by this Court i.e., an award of
Rs.1,30,000/-) with interest, which has to be calculated as per the Tribunal order. The
excess compensation amount deposited by the appellant can be withdrawn by them, with
accrued interest on the excess amount paid by them, after observing necessary Court
formalities.
       22. In the result, the above Civil Miscellaneous Appeal is partly allowed.
Consequently, the award and decree passed by the Motor Accident Claims Tribunal (Fast
Track Court No.4), Coimbatore at Tiruppur, in M.C.O.P.No.331 of 2003, is modified. No
costs.
                                                                       Appeal partly allowed.