judgement:
Civil Appeal No. 1653 of 1979.
Appeal by special leave from the Judgment and Order dated 23.5.1979 of the Delhi High Court in E.F.A. No. 8/76.
Madan Bhatia and Sushil Kumar for the Appellant.
S N. Kacker, S.K.Mehta, P.N. Puri, E.M.S. Anam and M.K. Dua for the Respondents.
The Judgment of the Court was delivered by A.N. SEN J.
The principal question which falls for determination in this appeal by Special Leave granted by this Court, is whether Gyan Chand Jain, the Respondent No. 1 in this appeal, who purchased a two and half storeyed Bungalow at No. 5 C/96, W.E.A. Karol Bagh, New Delhi, at an auction sale held pursuant to the terms of the compromise decree between the morgagor and the morgagee, is entitled to recover actual physical possession of the portions in the occupation of the appellants as lessees, the leases in respect of which were created after the decree in the mortgage suit by consent between the parties had been passed, in an application made by the auction purchaser Gyan Chand Jain under O.XXI, rules 95 & 96 of the Code of Civil Procedure.
There is no serious dispute with regard to the facts material for the purpose of appeal.
Des Raj Agarwal, the sole proprietor of M/s. 178 Raj Kumar & Co., mortgaged the 2/1/2 storeyed bungalow No.5 C/96, WEA.
Karol Bagh, New Delhi (herein after referred to as the premises) along with various other properties with Oriental Bank of Commerce (hereinafter referred as the Bank) on 28.6.1960 by deposit of title deeds.
The Bank filed a suit to recover its dues on the mortgage on 6.11.1962.
On 3.9.1963, a decree was passed by consent of the parties in favour of the plaintiff mortgagee for the sum of Rs. 479177.49 with costs and future interest at 6% till realisation of the decretal amount.
The other relevant terms of the consent decree which are contained in clauses 8 and 9 of the compromise are to the following effects: "8.
If the judgment debtor pay Rs. 479177.49 less costs and interest as after March, 1961 within two years of the decree, then whole of the decree shall stand satisfied.
If full amount of the decree with costs and interest is not paid as agreed above, within two years of the decree, then the decree holder shall be free to enforce the decree against the property mortgaged which shall be sold in execution of the same and the decree holder shall be entitled to proceed against other property and person of the judgment debtor in the case of the proceeds of the property not being sufficient to satisfy the decree".
After the decree had been passed on 3.9.1963, it appears that the judgement debtor leased out different portions of the premises to Dev Raj Dogra, Ish Kumar Khosla and Balwant Singh, the appellants herein, 1966, 1967 and 1970 respectively.
The judgment debtor failed to make payment of the decreetal dues in terms of the provisions contained in the consent decree and the premises in question resold by public auction on 28.10.1971.
Gyan Chand Jain whose bid was the highest, was declared to be the purchaser of the premises and the sale in his favour was confirmed on 6.8.1973.
On 25.10.76 an application was made on behalf on Gyan Chand Jain, the auction purchaser, in the Delhi High Court under O. XXI rules 95 and 96 and also S.151 of the Code of Civil Procedure for the following reliefs: (i) Warrants of possession with the direction that vacant physical possession of the entire property be delivered to the applicant, be issued and vacant physical possession of the entire property be got delivered to the applicant; 179 (ii) in case the Hon 'ble Court comes to a conclusion that the applicant is not entitled to vacate physical possession of any part of the property symbolic possession of that part of the property be granted to him; (iii) notices be issued to the persons mentioned in para 9 above to show cause why vacant physical possession of the portion of the property in their occupation be not delivered to the applicant.
The three tenant who were in possession of the respective portions leased out to them and on whom notices had been served, contested the said application.
A learned Single Judge of the Delhi High Court passed an order of physical possession of the said portions in the respective occupation of the tenants, the appellants before us, to be made over to the auction purchaser Gyan Chand Jain.
The Learned Judge held that the tenancies in favour of the tenants had been created after institution of the suit by the Bank and after the passing of the compromise decree in the said suit; and, the said tenancies would have no effect on the rights acquired by the auction purchaser, in view of the provisions contained in section 52 of the Transfer of property Act.
The Learned Judge had relied on the judgment of a Division Bench of the Bombay High Court in the case of Ramdas Popat Patil vs Fakira Pandu Patil and Ors.(1) and also on decision of Division Bench of the Gujarat High Court in case Jagjiwandas a Firm vs Lakhiram Haridasmal and Ors.(2) The tenants preferred an appeal against the said order of the learned Judge.
Before the Division Bench of the Delhi High Court, it was urged on behalf of the tenants that the decision of the Division Bench relied on by the learned Single Judge had been subsequently over ruled by a decision of the Full Bench of the Bombay High Court in case of Anaji Thamaji Patil vs Ragho Bhivraj Patil and Anr.(3) and the correctness of the decision of the Gujarat High Court had also been questioned in this Full Bench judgment.
Various other arguments were also advanced before the Division Bench on behalf of the tenants and the said arguments have been noted in the judgment of the Division Bench.
The Division Bench however, dismissed the appeal, accepting the contention put forward on behalf of the respondent auction purchaser that the decision of this Court in the case of M/s Supreme General Films Exchange Ltd. vs His Highness Maharaja Sir Brijnath Singhji.
180 Deo of Maihar and Ors., concludes the controversy.
The Division Bench also referred to the decision of this Court in case Jayaram Mudaliar vs Avva Swami and Ors.(2) Against the judgment and decision of the Delhi High Court the tenants have preferred this appeal after obtaining special leave from this Court.
Mr. Bhatia, learned counsel appearing on behalf of the tenants the appellants before us, has urged that section 52 of the has no application to the facts and circumstances of this case, as the conditions laid down in the said Section for the applicability of the said section are not satisfied.
It is the argument of Mr. Bhatia that the requirements of the said Section are (1) there must be a suit or proceeding which is not a collusive one and any right to immovable property must be directly and specifically in question in the said suit or proceeding and (2) transfer or otherwise dealing with the property by any party to the suit or proceeding must affect the right of any other party thereto under any decree or order which may be passed therein.
Mr. Bhatia has contended that in the instant case the right that the mortgagee had was only to put the property to sale in the event of the mortgagor failing to pay the decreetal amount in terms of the provisions of the compromise decree.
It is his contention that the right to put the property to sale cannot be said to be a right to immovable property directly and specifically in question in the suit.
He also referred to section 65A of the which empowers the mortgagor while lawfully in possession of the mortgaged property to grant lease in terms of the provisions contained in the said Section.
He has submitted that section 65A should be read along with section 52 and both these sections have been incorporated with the object of preserving the interest of the mortgagee by making suitable provisions so that the security of the mortgagee might not in any way be affected by any act done by the mortgagor after the creation of the mortgage and also after the institution of any suit for enforcement of the mortgage.
It is his submission that in section 65A of the the Legislature has made it manifestly clear that the mortgagor will be entitled to grant a lease of the property in conformity with the provisions of the said Section and he submits that when a mortgagor grants a lease of the mortgaged property in terms of the provisions of Section 65 A of the , it cannot be said that the granting of any such lease affects the right of the mortgagee.
Mr. Bhatia has next contended that in any event S.52 makes provisions for the 181 parties to the suit or proceeding and can have no application to any outside auction purchaser who is not a party to the suit or proceeding and who only acquires his right after the sale in execution of the decree has been confirmed.
Mr. Bhatia argues that the judgment of the learned Single Judge of the Delhi High Court must be held to be wrong, as the learned Single Judge came to his decision relying on the decision of the Division Bench of the Bombay High Court in the case of Ramdas Popat Patil vs Fakira Pandu Patil and Ors.
(supra) and the decision of the Gujarat High Court in the case of Jagjiwandas a Firm vs Lakhiram Haridasmal and Ors.
(supra) and the decision of the Division Bench of the Bombay High Court in Ramdas Popat Patil 's case has been over ruled by the Ful Bench decision of the Bombay High Court in Anaji Thamaji Patil vs Ragho Bhivraj Patil and Anr.
(supra) in which the correctness of the decision of the Gujarat High Court has also been questioned.
Mr. Bhatia has commented that the decisions of this Court in the case of M/s. Supreme General Films Exchange Ltd. vs His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and Ors.
(supra) and in the case of Jayaram Mudaliar vs Ayya Swami and Ors.
(supra) do not conclude the question involved in the instant case.
He has submitted that the rights of a third party auction purchaser to get physical possession of the property purchased at the auction sale was not considered by the Supreme Court in any of these two decisions; and he has further submitted that in these two cases the Supreme Court had indeed proceeded on the assumption that section 52 of the was applicable without considering whether the requirements of the said Section had been complied with or not, as these aspects were not argued before the Supreme Court in these two cases.
Mr. Bhatia has drawn our attention to O.XXI, rule 95 and also to rule 96 of the Code of Civil Procedure and has submitted that the rights of an auction purchaser are governed by the provisions contained therein.
It is the argument of Mr. Bhatia that in view of the provisions contained therein, the auction purchaser cannot claim physical possession of the portions in the occupation of the appellants, even though the appellants might have been inducted as tenants after the compromise decree in the suit had been passed.
Mr. Kakkar, learned counsel appearing on behalf of the auction purchaser, has submitted that as the tenants in the instant case were inducted not only after the institution of the suit for enforcement of the mortgage but also after the compromise decree had been passed, therein section 52 of the must be held to be applicable and it must be held that the tenancies were illegal and were created in breach of the provisions contained in section 52 of the 182 .
Mr. Kakkar has argued that section 65 A of the does not, in any way, control section 52 of the said Act.
It is his argument that section 65 A makes provisions with regard to the powers of the mortgagor to grant leases of the mortgaged property after the creation of the mortgage but before the institution of suit, while, on the other hand section 52 makes provisions for cases of transfer or otherwise dealing with any property after the institution of a suit or proceeding and section 52 imposes a complete ban on the transfer of any kind or dealing with immovable property except with the authority of the Court during the pendency of the suit or proceeding in which any right to immovable property is directly or specifically in question so that the rights of any party may not be affected when any decree or order is passed in the suit or in the proceeding.
Mr. Kakkar has referred to S.58 of the in support of his contention that in case of a mortgage, there is a transfer of an interest in specific immovable property for the purpose of securing of the payment of money advanced or to be advanced by way of loan.
He has argued that in a suit for the enforcement of mortgage it must, therefore, be held that the right to immovable property is directly and specifically in question; and he has further argued that after the decree for sale is passed in a mortgage suit the mortgagor loses even his right to redeem the property.
He has submitted that in the instant case tenancies have been created long after the compromise decree in which provision for sale of the mortgaged property had been made and the right of the mortgagee decree holder to put up the mortgaged property to sale had also arisen for failure on the part of the mortgagor judgment debtor to pay the decretal dues in terms of the compromise decree and the tenancies created by the mortgagor must be held to be illegal and void as they are clearly in contravention of the provisions contained in section 52 of the .
He submits that there cannot be any manner of doubt, that the creation of a tenancy affects the value of the property and to that extent affects the security, even though it may be said that the Legislature in its wisdom has thought it fit to permit the mortgagor to grant leases of the mortgaged property in terms of the provisions contained in section 65 A of the .
It is his argument that the Legislature has thought it fit not to impose any kind of absolute prohibition in respect of the dealing with any property by the mortgagor after the creation of a mortgage and has imposed only such restrictions which the Legislature thought would not prejudicially effect the security of the mortgagee; but the Legislature, however, in section 52 of the Act has thought fit to impose complete ban on the transfer 183 of or otherwise dealing with any property after the institution of a suit or proceeding in which the right to property is directly or specifically in question, so that the rights of any party thereto may not be affected under a decree or order which may be made in the suit or proceeding.
Mr. Kakkar has next submitted that the auction purchaser at the Court sale acquires all the right, title and interest of the mortgagor and also of the mortagee as a result of the purchase and the auction purchaser, therefore, steps into the shoes of the mortgagee and becomes entitled to obtain physical possession of the property purchased in the same manner as the mortgagee himself would have been able to do.
Mr. Kakkar in this connection has referred to the decision of this Court in the case Mangru Mahto and Ors.
vs Shri Thakur Taraknath Tarakeshwar Math and Ors.(1); and also to the decision of the Supreme Court in M/s. Supreme General Films Exchange Ltd. vs His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and Ors.
(supra) It is the submission of Mr. Kakkar that the decisions of this Court in the case of M/s. Supreme General Films Exchange Ltd. (supra) and also in the case of Jayaram Mudaliar (supra) conclude the question involved in the present appeal and the Division Bench rightly dismissed the appeal relying on the said decisions.
Before we proceed to deal with the respective contentions of the parties, it will be convenient to consider the material provisions of the relevant statutes to which we were referred in the course of submissions made from the bar.
Section 52 of the reads as follows: "During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
[Explanation For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institu 184 tion of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order, and complete satisfaction or discharge of such decree or order has been obtained, or has be come unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.]" Material provisions of section 58 (a) and (b) of the said Act are in the following terms: "(a) A Mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.
The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage money, and the instrument (if any) by which the transfer is effected is called a mortgage deed.
(b) Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied so far as may be necessary, in payment of the mortgage money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee." section 65A which was subsequently introduced into the Act by section 30 of the Transfer of Property (Amendment) Act, 1929 provides: "(1) Subject to the provisions of sub section (2), a mortgagor, while lawfully in possession of the mortgaged property, shall have power to make leases thereof which shall be binding on the mortgagee.
(2) (a) Every such lease shall be such as would be made in the ordinary course of management of the property concerned, and in accordance with any local law, custom or usage.
185 (b) Every such lease shall reserve the best rent that can reasonably be obtained, and no premium shall be paid or promised and no rent shall be payable in advance.
(c) No such lease shall contain a covenant for renewal.
(d) Every such lease shall take effect from a date not later than six months from the date on which it is made.
(e) In the case of a lease of buildings, whether leased with or without the land on which they stand, the duration of the lease shall in no case exceed three years.
and the lease shall contain a covenant for payment of the rent and a condition of re entry on the rent not being paid within a time therein specified.
(3) The provisions of sub section (1) apply only if and as far as a contrary intention is not expressed in the mortgagedeed; and the provision of sub section (2) may be varied or extended by the mortgage deed and, as so varied and extended shall, as far as may be, operate in like manner and with all like incidents, effects and consequences, as if such variations or extensions were contained in that sub section.
Rules 95 and 96 of O.XXI of the Code of Civil Procedure under which the auction purchaser in the instant case had made the application for possession are in the following effect: "95.
Where the immovable property sold is in the occupancy of the judgment debtor or of some person on his behalf or of some person claiming under a title created by the judgment debtor subsequently to the attachment of such property and a certificate in respect thereof has been granted under rule 94, the Court shall, on the application of the purchaser, order delivery to be made by putting such purchaser or any person whom he may appoint to receive delivery on his behalf in possession of the property, and, if need be, by removing any person who refuses to vacate the same.
Where the property sold is in the occupancy of a tenant or other person entitled to occupy the same and a certificate in respect thereof has been granted under rule 94, the Court shall, on the application of the purchaser, order delivery to be made by affixing a copy of the certificate of sale in 186 some conspicuous place on the property and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place, that the interest of the judgment debtor has been transferred to the purchaser.
An analysis of section 52 of the indicates that for application of the said section the following conditions have be satisfied: 1.
A suit or a proceeding in which any right to immovable property must be directly and specifically in question, must be pending; 2.
The suit or the proceeding shall not be a collusive one; 3.
Such property during the pendency of such a suit or proceeding cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the right of any other party thereto under any decree or order which may be passed therein except under the authority of Court.
In other words, any transfer of such property or any dealing with such property during the pendency of the suit is prohibited except under the authority of Court, if such transfer or otherwise dealing with the property by any party to the suit or proceeding affects the right of any other party to the suit or proceeding under any order or decree which may be passed in the said suit or proceeding.
It has to be noted that this section imposes a prohibition on transfer or otherwise dealing with any property during the pendency of a suit provided the conditions laid down in the section are satisfied.
section 58 makes it clear that in case of a mortgage there is a transfer of an interest in the specific immovable property mortgaged for the purpose of securing the payment of money advanced or to be advanced by way of a loan, an existing or future debt, or the performance of an engagement which may gives rise to pecuniary liability.
It further confers, in case of a simple mortgage where, without delivering the possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage money, a right on the mortgagee to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary in payment of the mortgage debt, 187 section 65A which as we noticed earlier, was introduced by the Amending Act, 1929 in recognition of the mortgagor 's powers exercised bona fide to grant lease of the mortgage property in the usual course of management, makes provision with regard to the exercise of such powers by the mortgagor, while the mortgage subsists and the mortgagor is in lawful possession of the mortgaged property.
This section further makes it clear that any lease granted by the mortgagor in accordance with the provisions of this section would be binding on the mortgagee.
Rules 95 and 96 of O.XXI of the Code of Civil Procedure makes provisions for enabling a purchaser of immovable property in a Court sale after obtaining the necessary certificate from the Court in terms of the provisions contained in rule 94 of the Code to apply for delivery of possession of the immovable property purchased by him at the Court sale.
Rule 95 provides for actual physical possession and rule 96 provides for symbolic possession.
A plain reading of rule 95 which we have earlier set out, clearly establishes, that the purchaser will be entitled to physical possession of property purchased and the Court will direct delivery of actual possession of the property sold to him by removing any person who refuses to vacate the same, if need be, if the following conditions are satisfied: 1.
The property sold must be in the occupation of the judgment debtor; 2.
The property sold must be in the occupancy of some person on behalf of the judgement debtor: 3.
The property sold must be in the occupation of some person claiming under a title created by the judgment debtor subsequently to the attachment of the property.
Rule 96 on the other hand makes it clear that where the property sold is in the occupancy of a tenant or other person entitled to occupy the same, symbolic possession of the property in the manner provided in the said rule is to be made over to the purchaser after the purchaser has obtained the necessary certificate under rule 94 of the Code.
We shall now proceed to consider the decision of this Court in the case of M/s. Supreme General Films Exchange Ltd. vs His Highness Maharaja Sir Brijnath Singh Deo of Maihar and Ors.
(supra) and also the decision of this Court in Jayaram Mudaliar vs Ayya Swami and Ors (supra).
In the case of M/s. Supreme General Films Exchange 188 Ltd., the plaintiff respondent who were the mortgagee of a cinema theatre of which the appellant Supreme General Films Exchange Ltd. claimed to be a lessee in occupation, had filed a suit against the mortgagor and a decree by compromise had been passed in the said suit on 7th May, 1960.
By the said compromise decree it was agreed that the amounts due to the mortgagee decree holder would be realised by the sale of the theatre.
The Central Bank of India, another creditor of the mortgagor, assigned its rights under the decree to the plaintiff decree holder.
The theatre was attached in the course of execution of the decree.
The original lease of 1940 on the basis of which the appellant, the Supreme General Films Exchange Ltd. had entered into possession, expired in 1946 but thereafter the Company had continued in possession as a tenant holding over until the impugned lease deed of 1946 in favour of the company was executed.
The company filed a suit in 1954 for specific performance of the agreement to lease and the lease deed of 1956 was executed in compliance with the terms of the compromise decree passed in the said suit filed by the appellant company.
In the said suit for specific performance by the appellant company, the plaintiff mortgagee was not impleaded as a party.
The plaintiff mortgagee thereafter filed a suit claiming that the lease of 1956 was void as the same came within the mischief of Ss. 52 and 65A of the and also section 64 of the Code of Civil Procedure.
The appellant company contested the said suit contending inter alia that the suit of this nature filed by the plaintiff mortgagee did not lie as it fell outside the purview of section 42 of the Specific Relief Act.
The trial Court decreed the said suit of the plaintiff mortgagee and granted the declaration asked for.
The appellant company preferred an appeal against the decree of the trial Court to the High Court which dismissed the said appeal.
Thereafter the appellant company filed a further appeal to this Court by special leave granted by this Court.
This Court for reasons recorded in the judgment held that the plaintiff was entitled to the declaration asked for on proper construction of section 42 of the Specific Relief Act.
One of the contentions which was raised on behalf of the appellant in this Court was that section 52 of the was not attracted to the lease in question.
Dealing with contention this Court observed at pp.
243 244 as follows: "The contention that the case fell outside the purview of section 52 of the as the lease was executed in purported satisfaction of an antecedent claim rests upon the terms of an agreement of 1948, embodied in a letter, on the strength of which the defendant appellant had 189 filed his suit for specific performance.
We find that the terms of the compromise decree in that suit and lease deed of 1956 purported to confer upon the defendant appellant new rights.
Indeed, there are good grounds for suspecting that the compromise in the suit for specific performance was adopted as a device to get round legal difficulties in the execution of the lease of 1956 in favour of the defendant company.
We are unable to accept the argument, sought to be supported by the citation of Bishan Singh and Ors.
vs Khazan Singh and Anr.
(AIR that the lease was merely an enforcement of an antecedent or pre existing right.
We think that it purported to create entirely new rights pendent lite.
It was, therefore struck by the doctrine of lis pendens, as explained by this Court in Jayaram Mudaliar vs Ayyaswami and ors.
[1973 SCR. 139] embodied in Section 52 of the .
An alternative argument of the appellant was that a case falling within section 65A (2) (a) of the , confining the duration of a lease by a mortgagor to three years, being a special provision, displaces the provisions of section 52 of the .
This argument overlooks the special object of the doctrine of lis pendens which applies to a case in which litigation relating to property in which rights are sought to be created pendente lite by acts of parties, is peening.
Moreover, for the purposes of this argument, the defendant appellant assumes that the provisions of Section 65A(2) (e) are applicable.
If that was so, it would make no substantial difference to the rights of the defendant appellant, which would vanish before the suit was filed if Section 65A applies.
We, however, think that, as the special doctrine of lis pendens, is applicable here, the purported lease of 1956 was invalid from the outset.
In this view of the matter, it is not necessary to consider the applicability of Section 65A (2) (e), which the defendant appellant denies, to the facts of this case." This Court further held agreeing with the concurrent findings of the Trial Court and the High Court that the lease of 1956 was also struck by the provisions of section 64 of the Civil Procedure Code, as the property continued to remain under attachment at the time of the grant of the lease in 1956.
190 It may be noted that in the case the validity of the lease had been questioned by the mortgagee decree holder in a suit for appropriate declaration.
The claim was not for possession by a third party auction purchaser in a proceeding under rr. 95 and 96 of O.XXI of the Code of Civil Procedure and the merits of an application under the said provisions of the Code and the scope and effect thereof did not come up for consideration, In the case of Mangru Mahto and Ors.
vs Shri Thakur Taraknath Tarakeshwar Math and Ors.
(supra), the mortgagor had granted lease of the mortgaged property to certain persons.
In execution of the mortgage decree, the mortgagee himself purchased the property at the auction.
The lessees of the mortgaged property had allowed the property to be sold and had not applied for being added as a party.
The mortgagee had also obtained the money decree against one of the lessees and in execution of the decree had attached the mortgaged land.
The lessees filed claim petitions objecting to the attachment under O.XXI, rule 58 of the Code of Civil Procedure.
The claim petitions filed by the lessees were allowed and the executing court held that the leases were genuine.
The mortgagee auction purchaser did not file any suit under Order XXI, rule 63 but latter filed a suit against the mortgagor and the lessees for recovery of possession of the lands, alleging that the leases were collusive transactions and were otherwise not binding on him.
The Trial Court dismissed the suit holding that the leases were genuine; but the High Court decreed the suit holding that the leases were sham transactions and were made in contravention of section 65A of the .
The lessees thereafter preferred and appeal to this Court under certificate granted by the High Court.
One of the contentions raised before this Court was that as the mortgagee did not file a suit under o. XXI, rule 63 of the Code of Civil Procedure after the claim petitions of the lessees under O.XXI rule 58 of the Code of Civil Procedure had been allowed and the mortgagee was not entitled to maintain the suit for recovery of possession of the mortgaged land and for mense profits on the allegation that the leases were collusive transactions and were otherwise not binding on him.
This contention was negatived by this Court for reasons recorded in the judgment.
This Court further held that the validity of the leases granted by the mortgagor was not affected by section 65A of the as the leases were granted before the enactment of section 65 A.
As these aspects do not have any material bearing on the question involved in the present appeal, it does not become necessary for us to pursue these two aspects any further.
This Court, however, held that the leases in question were not granted by the mortgagor in the ordinary 191 course of management as the agent or bailiff of the mortgagee and were not binding on the mortgagee and in that view of the matter this Court dismissed the appeal.
This Court observed at p. 132 as follows: "A lease granted by the mortgagor, out of the ordinary course of management, though not binding on the mortgagee is binding as between the mortgagor and the lessee.
Such a lessee acquires an interest in the right of redemption and is entitled to redeem.
If such a lease is created before the institution of a suit relating to the mortgage, the lessee must be joined as a party to the suit under O. 34, r. 1, C.P.C.; otherwise he will not be bound by the decree passed in the suit and will continue to retain his right of redemption.
But in view of section 52 of the , if the mortgagor grants such a lease during the pendency of a suit for sale by the mortgagee, the lessee is bound by the result of the litigation.
If the property is sold in execution of the decree passed in the suit, the lessee cannot resist a claim for possession by the auction purchaser.
The lessee could apply for being joined as a party to the suit and ask for an opportunity to redeem the property.
But if he allows the property to be sold in execution of the mortgage decree and they have now lost the present case, the lessees allowed the suit lands to be sold in execution of the mortgage decree and they have now lost the right of redemption.
They cannot resist the claim of the auction purchaser of recovery of possession of the lands.
" It may be noted that the Court immediately after the aforesaid observations has further observed as follows: "If a mortgagor in possession of the mortgaged property executes a lease of the property in the ordinary course of management as the agent or bailiff of the mortgagee during the pendency of a suit by the mortgagee to enforce the mortgage, a question may arise whether such a lease is in the eye of the law a lease granted by the mortgagee through his agent and therefore binding on him.
But in the present case, that question does not arise as the leases were not granted by the mortgagor in the ordinary course of management as the bailiff or agent of the mortgagor.
" It is to be noticed that this decision arose out of the suit instituted by the mortgagee auction purchaser for recovery of possession of 192 mortgaged property sold in execution of the mortgage decree and purchased by the mortgagee himself and the decision in the case rested mainly on the basis that the lease was not granted by the mortgagor in the usual course of business.
This case was also not concerned with an application by an outside auction purchaser for physical possession of the property purchased by him in an application made under O.XXI, rr. 95 and 96 of the Code of Civil Procedure, and the Court did not have to consider this scope and effect of a proceeding under O.XXI, rr. 95 and 96 of the Code of Civil procedure.
In our opinion, it cannot, therefore, be said that these two decisions of this Court conclude the question involved in the present appeal before us.
It may be true that section 52 and section 65 A of the operate in different spheres.
S.65 A, as we have earlier noticed deals with the powers of the mortgagor to grant a lease of the mortgaged property., while the mortgagor remains in lawful possession of the same.
section 52 deals with cases of transfer of or otherwise dealing with any immovable property after any suit or proceeding in which any right to the said immovable property is directly and specifically in question, has been filed.
It is also to be noted that section 65 A which came to be inserted by the Amending Act 1929, is neither made 'subject to ' nor 'not withstanding the provisions ' contained in section 52 of the Act.
section 52 will, however, be only applicable, if the requirements of the said section are satisfied.
We have earlier noticed what the requirements of the said section are.
In the instant case, it does not become necessary for us to consider whether the grant of any lease by a mortgagor in conformity with the provisions of section 65 A of the during the pendency of a suit by the mortgagee to enforce the mortgage will attract the provisions of section 52 of the Act or will be outside the mischief of the provisions of the said section on the ground that the creation of such a lease may not affect the rights of the mortgagee under any decree or order which may be passed in the suit.
We have earlier quoted the observations of this Court in the case of Mangru Mahto (supra) and it will be noticed that the Supreme Court in the said case did not decide this question and left this question open.
In the instant case an outside auction purchaser is seeking recovery of the physical possession of the property purchased by him at the auction from the appellants who are in possession of different portions of the said premises as tenants of the said por 193 tions.
The auction purchaser in the instant case was not the mortgagee and he was no party to the suit in which the compromise decree was passed.
section 52 in clear terms speaks of the rights of the parties to the suit or proceeding.
In this connection it may be noted that this Court in the case of Jayaram Mudaliar (supra) held at p. 153 as follows: "It is evident that the doctrine, as stated in section 52, applies not merely to actual transfers of rights which are subject matter of litigation but to other dealings with it by any party to the suit or proceeding, so as to affect the right of any other party thereto.
Hence it could be urged that where it is not a party to the litigation but an outside agency such as the tax collecting authorities of the Government, which proceeds against the subject matter of litigation, without anything done by a litigating party, the resulting transaction will not be hit by section 52.
Again, where all the parties which could be affected by a pending litigation are themselves parties to a transfer or dealings with property in such a way that they cannot resile from or disown the transaction impugned before the Court dealing with the litigation the Court may bind them to their own acts.
All these are matters which the Court could have properly considered.
The purpose of Section 52 of the is not to defeat any just and equitable claim but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward.
" The auction purchaser derives his right to obtain possession only after the sale in his favour has become absolute and sale certificate has been obtained by him.
The mode and manner of obtaining such possession are regulated by rr. 95 and 96 of the Code of Civil Procedure.
It is of interest to note that in the instant case, the auction purchaser had applied for obtaining possession under r. 95 which provides for actual possession and also under r. 96 which provides for symbolic possession.
We have earlier set out the provisions of these two rules.
In the facts and circumstances of this case, the auction purchaser, in view of the provisions contained in rule 95 which regulates the rights of the auction purchaser to obtain physical possession of the property purchased, is not entitled to recover the physical possession of the portions in the occupation of the appellants as tenants.
The appellants are not the judgment debtors.
They are not in occupation of the property on behalf of the judgment debtor.
They are also not claiming to be in occupation under 194 a title created by the judgment debtor subsequently to any attachment of the property.
There has been no question of any attachment in the instant case.
The appellants are in the occupation of the respective portions as tenants and they claim to occupy the same as such.
The question of validity or otherwise of the tenancy may have to be considered and determined in an appropriate proceeding.
In the present proceeding, the auction purchaser who is an outsider and was not a party to the suit resulting in the compromise decree in execution of which the property was put up for sale, is not entitled to recover physical possession from the appellants in view of the provisions contained in O. XXI, rule 95, and the auction purchaser must be held to be entitled to symbolic possession in terms of the provisions contained in O.XXI, rule 96 in respect of the portions in occupation of the appellants.
We, accordingly, allow this appeal.
We set aside the judgment and order passed by the High Court directing physical possession of the portions in the occupation of the appellants to be made over to the auction purchaser Gian Chand Jain, We direct that symbolic possession of the portions in occupation of the appellants is to be made over to the auction purchaser Gian Chand Jain.
In the facts and circumstances of this case, we make no order as to costs.
N.V.K. Appeal allowed.

dataset_name: IN-Abs

summary:
Order XXI Rules 95 and 96 of the Code of Civil Procedure enable a purchaser of immovable property in a Court sale, to apply for delivery of possession.
Rule 95 provides for actual physical possession and rule 96 provides for symbolic possession.
A purchaser will be entitled to physical possession of the property purchased if the property sold is in the occupation of the judgment debtor, of some person on behalf of the judgment debtor or some person claiming under a title created by the judgment debtor subsequent to the attachment of the property.
If the property sold is in the possession of a tenant or other person entitled to occupy the same, symbolic possession is to be made over to the purchaser under Rule 96.
The first respondent was an auction purchaser of property, of which the three appellants were tenants occupying different portions.
The property was mortgaged by its owner with a Bank.
As the amount due was not paid, the Bank instituted a suit for its recovery.
A decree was passed by consent of the parties which provided that if the amount was not paid within two years, the Bank could enforce the decree by sale of the property.
After the compromise decree was passed, the owner leased out different portions of the property to the appellants.
As the owner failed to make payment of the decreetal dues, the property was sold by Court auction and the first respondent, whose bid was the highest, was declared to be the purchaser of the premises, and the sale in his favour was confirmed.
The first respondent/auction purchaser filed an application under Order XXI, Rules 95 and 96 read with Section 151 of the Code of Civil Procedure in the High Court, for delivery of vacant physical possession of the entire property and prayed that if it was not possible to grant vacant physical possession of any part of the property, symbolic possession of that part may be granted.
This application was contested by the three appellants/tenants.
A Single Judge of the High Court holding that the tenancies in favour of the appellants having been created after the institution of the suit by the Bank and after the passing of the compromise decree in the said suit, and the said tenancies would have no effect on the rights acquired by the auction purchaser in view of Section 52 of the , and relying on the Division Bench Judgments of the Bombay High Court in Ramdas Popat Patil vs Fakira Patil and Ors.
AIR 1959 Bom 19 and of the Gujarat High Court in Jagjiwandas a Firm vs 175 Lakhiram Haridasmal and Ors.
AIR 1968 Guj 193 passed an order for delivery of physical possession of the portions in the respective occupation of the appellants.
In appeal it was contended that the Full Bench decision of the Bombay High Court in Anaji Thamaji Patil vs Ragho Bhivraj Patil and Anr.
AIR 1973 Bom 75, over ruled the Bombay Division Bench decision and doubted the correctness of the Gujarat decision, but the Division Bench of the High Court dismissed the appeal accepting the contention put forward on behalf of the respondent purchaser that the decision of this Court in M/s Supreme General Films Exchange Ltd. vs His Highness Maharaja Sir Brijnath ; concluded the controversy.
In the appeal to this Court, it was contend on behalf of the appellants that: (1) Section 52 of the has no application to the facts and circumstances of this case as the conditions laid down therein for its applicability are not satisfied.
(ii) The right that the mortgagee had was only to put the property to sale in the event of the mortgagor failing to pay the decreetal amount in terms of the provisions of the compromise decree, and this right cannot be said to be a right to immovable property directly and specifically in question in the suit.
(iii) Section 65A of the should be read alongwith Section 52 and both these sections have been incorporated with the object of preserving the interest of the mortgagee by making suitable provisions so that the security of the mortgagee might not in any way be affected by any act done by the mortgagor after the creation of the mortgage and also after the institution of any suit for enforcement of the mortgage.
(iv) Section 52 makes provisions for the parties to the suit or proceeding and can have no application to any auction purchaser who is not a party to the suit or proceeding and who only acquires his right after the sale in execution of the decree has been confirmed.
(v) The right of the third party auction purchaser to get physical possession of the property purchased at the auction sale was not considered by the Supreme Court in M/s Supreme General Films Exchange Ltd. vs His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and Ors.
and Jayaram Mudaliar vs Ayya Swami and Ors.
AIR (vi) Order XXI, Rule 95 and Rule 96 of the Code of Civil Procedure provides that the rights of an auction purchaser are governed by the provisions contained therein and that the auction purchaser cannot claim physical possession of the portions in the occupation of the appellants even though they might have been inducted as tenants after the compromise decree in the suit had been passed.
On behalf of the first respondent auction purchaser it was submitted that (1) as the tenants were inducted not only after the institution of the suit for enforcement of the mortgage but also after the compromise decree that has been passed therein, Section 52 of the must be held to be applicable 176 and it must be held that the tenancies were illegal and were created in breach of these provisions.
S.(2) 65A the does not in any way control section 52.
S 65A makes provisions with regard to the powers of the mortgagor to grant leases of the mortgaged property after the creation of the mortgage but before the institution of suit, while section 32 makes provisions for cases of transfer or otherwise dealing with any property after the institution of a suit or proceeding and section 52 imposes a complete ban on the transfer of any kind or dealing with immovable property except with the authority of the Court during the pendency of the suit or proceeding so that the rights of any part may not be affected when any decree or order is passed.
Section 58 of the provides that a mortgage is a transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan.
In a suit for the enforcement of a mortgage, the right to immovable property is directly and specifically in question and after the decree for sale is passed, the mortgagor loses even his right to redeem the property.
The tenancies in the instant case having been created long after the compromise decree, are illegal and void and in contravention of section 52 of the Act.
The decisions of this Court in M/s Supreme General Films Exchange Ltd. Manager Mahto and Ors.
and Jayaram Mudaliar conclude the question involved in the appeal.
On the question whether the 1st Respondent as auction purchaser in an application under Or.
XXI, rules 95 and 96, of the Code of Civil Procedure is entitled to recover actual physical possession of the portions in the occupation of the appellants as lessees, the lease in respect of which were created after the decree in the mortgage suit by consent between the parties had been passed.
Allowing the appeal ^ HELD 1.
The Judgment and Order passed by the High Court directing physical possession of the portions in the occupation of the appellants to be made over to the auction purchaser Respondent No. 1 is set aside.
Symbolic possession of the portions in occupation of the appellants to be made over to the auction purchaser respondent.
[194 D] 2.
In the case of M/s Supreme General Films Exchange Ltd., the validity of the lease had been questioned by the mortgagee decree holder in a suit for declaration.
The claim was not for possession by a third party auction purchaser in a proceeding, under rules 95 and 96 of order XXI of the Code of Civil Procedure and the merits of such an application and the scope and effect of the said provisions of the Code did not come up for consideration.
In Mangru Matho and Ors.
vs Shri Thakur Taraknath Tarakeshwar Math and Ors.
a suit was instituted by the mortgagee auction purchaser for recovery of possession of mortgaged property sold in execution of the mortgage decree and purchased by the mortgagee himself and the decision rested mainly on the basis that the lease was not granted by the mortgagor in the usual course of business.
This case was also not concerned with an application by an outsider auction purchaser for physical possession of the property purchased by him in an application made under order XXI Rules 95 and 96 of the Code of Civil Procedure.
These two decisions do not therefore conclude the question involved in the present appeal.[190 A B, 191 H 192 C] 177 3.
The auction purchaser derives his right to obtain possession only after the sale in his favour has become absolute and sale certificate has been obtained by him.
The mode and manner of obtaining such possession are regulated by Rules 95 and 96 of the Code of Civil Procedure.[193 F] In the instant case a third party auction purchaser is seeking recovery of the physical possession of the property purchased by him at the auction from the appellants who are in possession of different portions of the said premises as tenants of the said portions.
The auction purchaser was not the mortgagee and he was no party to the suit in which the compromise decree was passed.
The auction purchaser in view of the provisions contained in Rule 95 which regulate the rights of the auction purchaser to obtain physical possession of the property, is not entitled to the recover the physical possession of the portions in the occupation of the appellants as tenants.
The appellants are not the judgment debtors.
They are not in occupation of the property on behalf of the judgment debt or.
They are also not claiming to be in occupation under a title created by the judgment debtors subsequent to any attachment of the property.
There is no question of any attachment in the case.
The appellants are in the occupation of their respective portions as tenants and they claim to occupy the same as such.
The auction purchaser must therefore be held to be entitled to only symbolic possession in terms of the provisions contained in Or XXI rule 96 in respect of the portions in occupation of the appellants.
[192 H 193 A, 193 H 194 A, C]


judgement:
: Criminal Appeal No. 91 of 1976.
Appeal by Special Leave from the Judgment and Order dated 29.7.1975 of the Karnataka High Court in Criminal Appeal No. 364 of 1975.
N. Nettar for the Appellant.
A.K. Sen, S.K. Bisaria and V.P. Gupta for the Respondents.
The Judgment of the Court was delivered by BAHARUL ISLAM, J.
This appeal by special leave has been preferred by the State of Karnataka.
The three respondents being the partners of the firm, M/s. Mafatlal and Co., and the firm itself were charged for offences under Sections 18(c), 18(a) (ii) and 18A of the read with Section 27(a) (ii), 27(a) (i) and Section 28 of the Drugs Control Act, (hereinafter, the Act).
The defence was a plea of "Not Guilty".
The Chief Metropolitan Magistrate found respondents 1 and 3, that is, one of the partners and the firm, guilty under Section 18(a) (ii) and Section 18(c) of the and sentenced respondent No. 1 to suffer rigorous imprisonment for one year under section 18(a) (ii) and to pay a fine of Rs. 500.
in default, to suffer simple imprisonment for one month, and sentenced respondents 1 and 3 to pay a fine of Rs. 1,000 each, under section 18(c), in default, to suffer simple imprisonment for three months.
The respondent No. 2 was acquitted of these two offences as the Magistrate found that it was respondent No. 1 and not respondent No. 2 who was in charge of the business of the firm.
All the respondents were acquitted of the offence under section 18A. 3.
The appellant preferred an appeal before the High Court of Karnataka from the order of acquittal of respondent No. 2 of the 202 offence under Section 18(a) (ii) and 18(c) and of all the respondents under section 18A of the Act.
The High Court summarily dismissed the appeal.
Section 18A of the Act requires that every person who has acquired drug or cosmetic, if required, shall disclose to the inspector the name, address and other particulars of the persons from whom the drug or cosmetic was acquired.
The respondents pleaded that they did disclose to the Drugs Inspector, the name, address and other particulars of the person from whom the drugs were acquired, by section 18A of the Act and in support of their defence they rely on Exhibit P. 20, a letter dated 17.7.1971 addressed to the Drugs Controller.
The learned Chief Metropolitan Magistrate has found that Exhibit P.20 contained the name, address and other particulars of the person from whom the drugs were claimed to have been acquired as M/s. Mangilal Jayantilal & Company, 65 Princess Street, Second Floor, Bombay, which name and address, according to the prosecution, were fictitious.
P.W.3, the Assistant Commissioner, Food and Drug Administration, Bombay North Circle, has deposed that he got it verified by his Inspector who submitted a report that the above name and address were fictitious.
But the Inspector has not been examined, nor his report proved.
Obviously, therefore, the defence version remained unrebutted and violation of section 18A remained unestablished.
Regarding the acquittal of the 2nd respondent of the offence under section 18 (a) (ii) and section 18(c), the learned counsel for the State of Karnataka submitted that under section 34 of the the firm, as well as its partners were liable to be convicted.
Section 34 may be extracted here: "section 34.
(1) Where an offence under this Act has been committed by a company every person who at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in the sub section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without 203 his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.
For the purpose of this section (a) "company" means a body corporate, and includes a firm or other association of individuals; and (b) "director" in relation to a firm means a partner in the firm.
" It is seen that the partner of a firm is also liable to be convicted for an offence committed by the firm if he was in charge of, and was responsible to, the firm for the conduct of the business of the firm or if it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of the partner concerned.
In the present case the second respondent was sought to be made liable on the ground that he alongwith the first respondent was in charge of the conduct of the business of the firm.
Section 23 C of the Foreign Exchange Regulation Act 1947 which was identically the same as section 34 of the came up for interpretation in G. L. Gupta vs D. N. Mehta it was observed as follows: "What then does the expression "a person in charge and responsible for the conduct of the affairs of a company mean"? It will be noticed that the word 'company ' includes a firm or other association and the same test must apply to a director in charge and a partner of a firm incharge of a business.
It seems to us that in the context a person 'in charge ' must mean that the person should be in over all control of the day to day 204 business of the company or firm.
This inference follows from the wording of section 23C(2).
It mentions director, who may be a party to the policy being followed by a company and yet not be in charge of the business of the company.
Further it mentions manager, who usually is in charge of the business but not in over all charge.
Similarly the other officers may be in charge of only some part of business.
" The evidence in the present case shows that it was respondent No. 1 and not respondent No. 2 who was in over all control of the day to day business of the firm.
The second respondent is not liable to be convicted merely because he had the right to participate in the business of the firm under the terms of the Partnership Deed.
This appeal has no merit and is dismissed.
P.B.R. Appeals dismissed.

summary:
All the three respondents (respondents nos.
1 and 2 partners and respondent No. 3, the firm) were prosecuted for the alleged contravention of section 18A, in that when asked by the Drugs Inspector to disclose the name, address and other particulars of the person from whom a certain drug was acquired by them, they gave a fictitious address and that, therefore, they were liable to be convicted under section 18(a) (ii) read with section 18(c) of the Act.
The Metropolitan Magistrate convicted respondent No. 1 (the partner incharge of the business of the firm) and respondent No. 3 (the firm) but acquitted respondent No. 2 on the ground that it was respondent No. 1 who was incharge of the firm and sentenced them variously.
The High Court summarily dismissed the State 's appeal against the acquittal of respondent No. 2 and of all the respondents under section 18A. Dismissing the appeal, ^ HELD: Violation of the provisions of section 18A remained unestablished and the defence version remained unrebutted.
[202E] The Assistant Commissioner, Food and Drug Administration Bombay, North Circle, deposed that the particulars given by the respondents as to the person from whom the drugs were purported to have been acquired were verified by an Inspector who in his report stated that the name and address given by the respondents were fictitious; but the Inspector has not been examined nor was his report proved.
The defence version, therefore, remained unrebutted.
[202 D E] The second respondent was not liable to be convicted merely because he had the right to participate in the business of the firm under the terms of the partnership deed.
The term "person incharge" referred to in section 34 must mean that the person should be in overall control of the day to day business of the firm.
A person may be a party to the policy being followed by a firm and yet not be incharge of its business or a person may be incharge of a business but not in overall charge or may be incharge or only some part of the business.
In short, a partner of a firm is liable to be convicted for an offence if he was in 201 charge of and was responsible to the firm for the conduct of its business or if it is proved that the offence was committed with the consent or connivance of or was attributable to any neglect on the part of the partner concerned.
[204A B] G.L. Gupta vs D.N. Mehta ; applied.
In the instant case respondent No. 2 was not in overall control of the business.
It was respondent No. 1, who was in that position.
[204 C]


judgement:
ition Nos. 5931 and 5932 of 1980.
(Under Article 32 of the Constitution.) N. M. Ghatate and section V. Deshpande for the Petitioners.
M. K. Banerjee Addl.
Genl., R. N. Poddar and Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by KOSHAL, J.
By this order we shall dispose of Criminal Writ Petitions Nos. 5931 and 5932 of 1980 in each of which the contention raised by the learned counsel for the petitioners is the same.
In Criminal Writ Petition No. 5931 of 1980, the petitioner is one Surjeet Singh while the other petition has been filed by a person named Kulwant Singh.
206 3.
Each of the petitioners was detained on the 13th October, 1980 under the provisions of the National Security Ordinance which now stands replaced by the National Security Act.
They were arrested on that date and on each of them a police officer served an order of detention along with the grounds on which it was based, both the documents being in English.
It is the case of the State and the same has not been controverted before us, that the police officer effecting the service of the two documents explained to the concerned detenu in Hindi what their contents were.
Dr. N. M. Ghatate, learned counsel for the petitioners has challenged the detention of the two petitioners with the contention that English was not a language which either of them understood, that this factor rendered it necessary for the grounds of detention to be served on them in Hindi which was their mother tongue and that the same having not been done, there was in law no communication of such grounds to either of them.
After hearing learned counsel for the parties, we have no hesitation in holding that the challenge to the detention is well founded in view of the dicta of this Court in Harikisan vs The State of Madarashtra & Others, Hadibandhu Das vs District Magistrate, Cuttak & Anr., and Nainmal Partap Mal Shah vs Union of India and Others.
In the first of these cases an order under the Preventive Detention Act (Central Act IV of 1950) was under challenge.
The grounds of detention had been provided to the detenu in English and a request by him for a translation of the same was turned down.
The High Court was of the opinion that so long as English continued to be the official language of the State, the communication of the grounds of detention in that language was enough compliance with the requirements of the Constitution.
This opinion did not find favour with Sinha, C.J., who delivered the judgment of this Court and observed: If the detained person is conversant with the English language, he will naturally be in a position to understand the gravamen of the charge against him and the facts and circumstances on which the order of detention is based.
But to a 207 person who is not so conversant with the English language, in order to satisfy the requirements of the Constitution, the detenu must be given the grounds in a language which he can understand, and in a script which he can read, if he is a literate person.
The Constitution has guaranteed freedom of movement throughout the territory of India and has laid down detailed rules as to arrest and detention.
It has also, by way of limitations upon the freedom of personal liberty, recognised the right of the State to legislate for preventive detention, subject to certain safeguards in favour of the detained person, as laid down in clauses (4) and (5) of article 22.
One of those safeguards is that the detained person has the right to be communicated the grounds on which the order of detention has been made against him, in order that he may be able to make the representation against the order of detention.
In our opinion, in the circumstances of this case, it has not been shown that the appellant had the opportunity, which the law contemplates in his favour, of making an effective representation against his detention.
On this ground alone we declare his detention illegal, and set aside the order of the High Court and the Order of Detention passed against him." In Hadibandhu 's case (supra) also an order under the Preventive Detention Act was impugned with the contention that the grounds of detention had not been supplied to the detenu in the language and script which he understood.
The order was struck down by this Court for the reasons appearing in the following passage : "The grounds in support of the order served on the appellant ran into fourteen typed pages and referred to his activities over a period of thirteen years, beside referring to a large number of court proceedings concerning him and other persons who were alleged to be his associates.
Mere oral explanation of a complicated order of the nature made against the appellant without supplying him the translation in script and language which he understood would, in our judgment amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making a representation against the order.
" 208 In Nainmal 's case, Fazal Ali, J., who followed Hadibandhu 's case, held that the communication of the grounds of detention in a language understood by the detenu was an essential requirement for the validity of a detention order which, in the absence of such requirement being fulfilled, would be repugnant to the provisions of article 22(5) of the Constitution and would thus stand vitiated.
And that is a view which has been consistently held by this Court.
The facts with which we are here concerned, in so far as they are relevant to the decision of the point canvassed before us, are on all fours with those of the three cases cited above.
As already pointed out, the grounds of detention were supplied to the two petitioners in the English language a language with which they were not conversant.
The service of the grounds on them in that manner could not be considered under the circumstances to be effective communication to them thereof so as to afford to them a real opportunity of making a representation against the order of detention.
It is true, as pointed out by the learned Additional Solicitor General, that in Hadibandhu 's case (supra) the grounds of detention covered numerous pages and related to a long period of time and, according to this Court, contained "a complicated order".
The complicated nature or the length of the document, however, was only mentioned incidentally by this Court and was not meant to be a sine qua non for the fulfilment of the requirement that the grounds must be supplied to the detenu in a language which he understood before the service on him of such grounds could be considered a communication thereof to him for the purposes of the Preventive Detention Act.
In the result both the petitions succeed and are accepted.
The detention of each of the petitioners is held to be repugnant to the provisions of article 22(5) of the Constitution and is struck down on that account.
Both of them are directed to be set at liberty forthwith, in so far as these petitions are concerned.
V.D.K. Petitions allowed.

summary:
Allowing the petitions, the Court ^ HELD: The supply to the detenus of the grounds of detention in the English language with which they were not conversant could not be considered to be effective communication to them so as to afford to them a real opportunity of making a representation against the order of detention.
Their detention is repugnant to the provisions of Article 22 (5) of the Constitution.
The complicated nature or the length of the document, is not a sine qua non for the fulfilment of the requirement that the grounds must be supplied to the detenu in a language which he understood before the service on him of such grounds could be considered a communication thereof to him.
[206C D, 208E G] Harikisan vs The State of Maharashtra & Ors.
[1962] Suppl.
2 SCR 918; Habibandhu Das vs District Magistrate, Cuttack and Anr, ; ; Nainmal Pratap Mal Shah vs Union of India and Ors. , followed.


judgement:
N: Criminal Appeal No. 362 of 1979.
Appeal by Special Leave from the Judgment and Order dated 28.2.79 of the Allahabad High Court at Allahabad in Crl.
Appeal No. 3500/78 and murder reference No. 33/78.
section K. Bisaria for the Appellant.
H. R. Bhardwaj and R. K. Bhatt for the Respondent.
The Judgment of the Court was delivered by CHANDRACHUD, C. J.
The appellant 's land was auctioned on December 26, 1976 in a revenue sale held to recover arrears of land revenue.
On the same day, the land of one Mool Chand was also sold for a similar reason.
The deceased Bhagwan Singh, who was 269 an Amin, acted as an officer of the Court in effecting the aforesaid sales.
After the sale proceedings were over, Bhagwan Singh was returning home on a bicycle, with his peon Shripat, who is examined in the case as P.W.4 The appellant, Mool Chand and the latter 's son Daya Ram lay in wait for the deceased and while he was passing along on his bicycle, Daya Ram fired three shots at him; two out of these hit Bhagwan Singh, as a result of which he fell down.
A split second thereafter, the appellant emerged with a sword and chopped off the neck of Bhagwan Singh.
Daya Ram is still absconding but the appellant was convicted by the Sessions Court under section 302 read with section 34 of the Penal Code and was sentenced to death.
He was also convicted under section 307 of the Penal Code.
The sentence of death having been confirmed by the High Court, the appellant has filed this appeal by special leave.
The leave is limited to the question of sentence.
We see no reason for commuting the sentence of death imposed upon the appellant to the lesser sentence of imprisonment for life.
The fact that Daya Ram is absconding does not reduce the gravity of the offence committed by the appellant.
Bhagwan Singh had but performed his ministerial duty as an Amin in putting the appellant 's land to sale.
He bore no personal grudge against the appellant nor had he anything to gain for himself by selling the lands of the appellant and of Daya Ram.
Such crimes committed against public servants for reasons arising out of the performance by them of their public duties must be discouraged and put down with a firm hand.
We, therefore, confirm the sentence of death passed on the appellant and dismiss the appeal.
P.B.R. Appeal dismissed.

summary:
The deceased Bhagwan Singh who was working as an Amin put the appellant 's lands to sale for recovering certain arrears.
The appellant and his two companions Mool Chand and Daya Ram lay in wait for the deceased while he was on his way back home.
Daya Ram first fired three shots at the deceased as a result of which he fell down.
Immediately thereafter the appellant emerged with a sword and chopped off the head of Bhagwan Singh.
The appellant was convicted under section 302 read with section 34, I.P.C. and sentenced to death.
The second accused was still absconding.
On the question of sentence ^ HELD: There is no reason for commuting the sentence of death to the lesser sentence of imprisonment for life.
The deceased had to perform his ministerial duties as an amin in putting the land to sale.
He bore no personal grudge against the appellant nor had he anything to gain for himself by selling the appellant 's lands.
Such crimes against public servants for reasons arising out of the performance by them of their public duties must be put down with a firm hand.
[269E] The fact that the second accused was absconding does not reduce the gravity of the appellant 's offence.
[269D]


judgement:
Civil Appeal No. 1678 of 1973.
From the Judgment and Order dated 4.7.1973 of the Bombay High Court in Appeal No. 142/72.
F. section Nariman, Y. section Chitale, O. C. Mathur, K.J. John, Sri Narain, Narayan B. Shetya and M. Mudgal for the Appellant.
F. D. Damania, B. R. Agarwala and P. G. Gokhale for Respondents 1 2.
M. K. Ramamurthy and Jatinder Sharma for Respondent 3.
Janardhan Sharma for the Interveners.
The Judgment of the Court was delivered by MISRA, J.
The present appeal by certificate is directed against the judgment dated 4th of July, 1973 of the High Court of Bombay in a Letters Patent Appeal arising out of a petition under Article 226 of the Constitution.
The facts leading up to this appeal lie in a narrow compass.
The appellant the Ahmedabad Manufacturing and Calico Printing Co. Ltd. (hereinafter called the Company) is predominantly a textile manufacturer but has also factories in Bombay manufacturing 215 heavy chemicals and engages about 750 workmen in three such factories.
A dispute arose between the Company and the said workmen in respect of seventeen demands raised by them through their union.
The dispute was referred to the Industrial Tribunal under section 10(2) of the .
Out of the demands of the workmen the Tribunal took up for consideration only four demands, that is, demands Nos. 1, 2, 15 and 16 respectively for basic wages and adjustment, dearness allowance, gratuity and retrospective effect of the demands.
The Tribunal gave its award on 30th of November 1971 and sent a copy thereof to the parties.
The award was published on 20th of January, 1972 in the Maharashtra Government Gazette.
Under the rules it was to be effective after one month of its publication in the Gazette.
The Company, feeling aggrieved by the award, filed with this Court a petition for special leave to appeal under Article 136 of the Constitution (the leave petition, for short).
Pursuant to a notice, the respondent union put in appearance and filed a counter affidavit.
It appears that after some arguments the appellant chose to withdraw the leave petition.
As much turns upon the order of this Court dated 21st of August, 1972 permitting withdrawal, it would be appropriate to quote the same: "Upon hearing counsel the Court allowed the special leave petition to be withdrawn.
" Four days thereafter the Company filed a petition under Article 226 of the Constitution before the High Court challenging the award.
That petition was virtually based on the same facts and grounds as were taken in the leave petition before this Court.
The respondent union appeared and filed a counter affidavit urging that the petition be dismissed in limine.
A rejoinder affidavit was filed on behalf of the Company.
On the date of hearing three preliminary objections were raised on behalf of the union respondent.
In the present appeal we are, however, concerned only with one of them, namely, that the High Court should not exercise discretion in granting relief to the Company under Article 226 of the Constitution, after the withdrawal of the leave position unconditionally.
This objection prevailed with the High Court.
The learned Single Judge determined the circumstances on the basis of the respective affidavits filed by the parties, in which the Company 216 unconditionally withdrew its leave petition and in view of those circumstances he equated the withdrawal of the leave petition with the dismissal of the same.
Relying on Vasant Vithal Palse and Ors.
vs The Indian Hume Pipe Co. Ltd. and Anr.
he held that it was not a fit case for exercise of the Court 's discretionary power to admit the writ petition and accordingly dismissed the same in limine.
The Company filed a Letters Patent Appeal but the Division Bench dismissed the same and confirmed the order of the learned Single Judge.
The preliminary objection which weighed with the High Court was repeated on behalf of the union respondent before the Division Bench in appeal with two contentions: (1) the unconditional withdrawal by the company of its leave petition in the circumstances found by the learned Single Judge is a bar to the competence of the Court to entertain the petition under Article 226 of the Constitution.
In other words, the High Court has no jurisdiction to grant rule nisi under Article 226 in view of the withdrawal of the petition under Article 136 of the Constitution; (2) The learned Single Judge has rightly dismissed the petition in limine under Article 226 of the Constitution in the exercise of his discretion on the ground that the leave petition based on the same contention was unconditionally withdrawn.
Although the Division Bench discussed the first contention but refused to decide it as it was taken for the first time before it in appeal.
The second contention was, however, accepted by the Division Bench.
The High Court did not consider the other cases cited on behalf of the Company as it thought that the point in question was concluded by a Division Bench of that Court in Vasant Vithal Palse 's case (supra).
The Company thereafter moved a petition under Article 133 of the Constitution for a certificate of fitness to appeal to the Supreme Court which was granted by the High Court and this is how the present appeal comes before us.
Two questions arise for consideration in this appeal :(1) Whether unconditional withdrawal of the leave petition would amount to its dismissal ? (2) If so, what would be its impact on the petition under article 226 of the Constitution ? It was contended for the appellant that the order of this Court permitting the appellant to withdraw the leave petition should be read as it is and that so read the order only means that 217 the Company had withdrawn the leave petition.
It was urged that the mere fact that the appellant chose to withdraw the leave petition after some arguments will not alter the nature of the order and that by no stretch of imagination can it be said that the leave petition had been dismissed by this Court.
It may be, it was argued that the Company chose to withdraw the leave petition on the ground that this Court was not favourably inclined to grant it or that the Company chose to avail of a better remedy before the High Court under Article 226 of the Constitution, which had a wider scope.
The High Court perused the affidavits filed by the parties to know the circumstances under which the leave petition was withdrawn, but in our opinion that is not a correct approach.
The order of a Court has to be read as it is.
If this Court intended to dismiss the petition at the threshold, it could have said so explicitly.
In the absence of any indication in the order itself, it will not be proper to enter into the arena of conjecture and to come to a conclusion on the basis of extraneous evidence that this Court intended to reject the leave petition.
If the Order of this Court is read as it is there is not the slightest doubt that this Court had allowed the Company to withdraw the leave petition, and if that be so, it would be idle to argue that the leave petition had been dismissed at the threshold.
Reliance was placed on behalf of the appellant on Workmen of Cochin Port Trust vs Board of Trustees of the Cochin Port Trust & Anr.
In that case a special leave petition had been dismissed in limine with a non speaking order.
This Court dealing with the impact of that order observed as follows: "If by any judgment or order any matter in issue has been directly and explicitly decided the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceeding between the same parties.
The principle of res judicata also comes into play when by the judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implication; then also the principle of res judicata on that issue is directly applicable.
" 218 Then the Court proceeded to consider whether the matter in issue has been either explicitly or implicitly decided.
Dealing with that aspect of the matter the Court further observed: "Indisputably nothing was expressly decided.
The effect of a non speaking order of dismissal without anything more indicating the grounds or reasons of its dismissal must by necessary implication, be taken to have decided that it was not a fit case where special leave should be granted.
It may be due to several reasons.
It may be one or more.
It may also be that the merits of the award were taken into consideration and this Court felt that it did not require any interference.
But since the order is not a speaking order, one finds it difficult to accept the argument put forward on behalf of the appellants that it must be deemed to have necessarily decided implicitly all the questions in relation to the merits of the award.
A writ proceeding is a different proceeding.
Whatever can be held to have been decided expressly, implicitly or even constructively while dismissing the special leave petition cannot be re opened.
But the technical rule of res judicata, although a wholesome rule based on public policy, cannot be stretched too far to bar the trial of identical issues in a separate proceeding merely on an uncertain assumption that the issues must have been decided.
It is not safe to extend the principle of res judicata to such an extent so as to found it on mere guesswork.
If the writ petition is dismissed by a speaking order either at the threshold or after contest, say, only on the ground of laches or the availability of an alternative remedy, then another remedy open in law either by way of suit or any other proceeding obviously will not be barred on the principle of res judicata.
Of course, a second writ petition on the same cause of action either filed in the same High Court or in another will not be maintainable because the dismissal of one petition will operate as a bar in the entertainment of another writ petition.
Similarly even if one writ petition is dismissed in limine by a non speaking order 'dismissed ', another writ petition would not be maintainable because even the one word order, as we have indicated above, must necessarily be taken to have decided impliedly that the case is not a fit one for exercise of the writ jurisdiction of the High Court.
Another writ petition from the same order or decision will not lie.
But the position is substantially different when a writ petition is dismissed either at the threshold or 219 after contest without expressing any opinion on the merits of the matter; then no merit can be deemed to have been necessarily and impliedly decided and any other remedy of suit or other proceeding will not be barred on the principle of res judicata.
" If a non speaking order of dismissal cannot operate as res judicata, an order permitting the withdrawal of the leave petition for the same reason cannot so operate.
The case in hand stands on a still better footing than the case of Workmen of Cochin Port Trust (supra).
Next reliance was placed on Punjab Beverages Pvt. Ltd. vs Suresh Chand & Anr.
In that case one of the contentions raised was that no application for approval was made by the appellant to the Industrial Tribunal and that there was thus contravention of section 33 (2) (b) of the .
An application for approval was in fact made under section 33 (2) (b), but that was withdrawn and the argument advanced was that the withdrawal was tantamount to refusal of approval, that the ban imposed by section 33 (2) (b), therefore, continued to operate and that the order of dismissal passed by the appellant was void and inoperative.
The contention was, however, repelled and this Court observed: "Where, however, the application for approval under section 33 (2) (b) is withdrawn by the employer and there is no decision on it on merits, it is difficult to see how it can be said that the approval has been refused by the Tribunal.
The Tribunal having had no occasion to consider the application on merits there can be no question of the Tribunal refusing approval to the employer.
It cannot be said that where the application for approval is withdrawn, there is a decision by the Tribunal to refuse to lift the ban.
The withdrawal of the application for approval stands on the same footing as if no application under section 33 (2) (b) has been made at all." In Hoshnak Singh vs Union of India & Ors. an earlier petition was dismissed by a non speaking one word order 'dismissed '.
A second petition after pursuing the alternative remedy was filed.
A question arose whether the same would be barred by the principles analogous to res judicata.
This Court held that the second petition would not be so barred because the cause of action was entirely 220 different and the dismissal could not stand in the way of the petitioner invoking the jurisdiction of the High Court under Article 226 of the Constitution.
Reliance was next placed on Daryao & Ors.
vs The State of U.P. & Ors.
In that case the previous petition for a writ filed by the petitioner before the High Court was withdrawn.
The High Court, therefore, dismissed the said petition with the express observation that the merits had not been considered by the High Court in dismissing it and that, therefore, no order as to costs was passed.
It was held by this Court that the order dismissing the writ petition as withdrawn could not constitute a bar of res judicata.
Counsel for the respondent union has contended that the order of rejection may be either explicit or implicit and that it can be shown from the circumstances of the present case that the leave petition was withdrawn only after full arguments when the appellant found that this Court was not favourably inclined to grant it.
In these circumstances it is argued that the order of withdrawal would amount to the dismissal of the leave petition and that in this view of the matter the High Court in the sound exercise of its discretion was justified in dismissing the writ petition in limine.
In support of this contention the learned counsel relied upon Shankar Ramchandra Abhyankar vs Krishnaji Dattatreya Bapat.
In that case the respondent first filed a revision under section 115 of the Code of Civil Procedure.
The revision was, however, dismissed.
Thereupon the respondent moved a petition under Articles 226 and 227 of the Constitution challenging the same order of the appellate court.
The High Court held that in spite of the dismissal of the revision petition, it could interfere under Articles 226 and 227 of the Constitution on a proper case being made out.
This Court, however, reversed the order of the High Court holding that even on the assumption that the order of the appellate court had not merged in the order of the Single Judge who had disposed of the revision petition, a writ petition ought not to have been entertained by the High Court when the respondent had already chosen the remedy under section 115 of the Code of Civil Procedure and that if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of 221 the same order of the subordinate court.
The facts of that case are materially different from those of the case in hand and that case is not of much assistance in solving the problem before us.
In Vasant Vithal Palse 's case (supra) the trade union filed an application for special leave to appeal to this Court and the same was rejected.
Thereafter the individual workmen filed a petition under Article 226 of the Constitution challenging the award without disclosing the fact that application for special leave made to the Supreme Court by the trade union had been rejected.
The writ petition was dismissed on the grounds: (1) that the material facts had been concealed, and (2) that the leave petition filed by the trade union had been dismissed by the Supreme Court.
That case is also distinguishable on facts, firstly because there is no concealment of facts in the present case, and, secondly, the Supreme Court in that case had dismissed the application for special leave.
In the case in hand the petition has only been permitted to be withdrawn.
It is on the basis of that decision that the High Court had dismissed the petition in limine.
Next, reliance was placed on A. M. Allison vs B. L. Sen.
This Court dealing with the writ of certiorari observed as follows: "A writ of certiorari cannot be issued as a matter of course.
The High Court is entitled to refuse the writ if it is satisfied that there was no failure of justice.
The Supreme Court declines to interfere, in appeal, with the discretion of the High Court unless it is satisfied that the justice of the case requires such interference.
" There is no quarrel with the proposition that a writ of certiorari is not issued as a matter of course and that the petitioner has to satisfy the Court that his rights have been infringed so that there has been failure of justice.
In the instant case the appellant chose to file a petition for leave to appeal to the Supreme Court but eventually withdrew the petition and thereafter invoked the jurisdiction of the High Court under Article 226 of the Constitution and the High Court in its discretion chose to dismiss the writ petition in limine only on the ground that the petitioner had moved an application for special leave before the Supreme Court and withdrew the same unconditionally.
In view of the law laid down by this Court in a recent decision in the case of Workmen of Cochin Port Trust (supra) the decision in Allison 's case has lost its efficacy.
222 In the Management of Western India Match Co. Ltd., Madras vs The Industrial Tribunal, Madras & Anr., the Supreme Court had declined to exercise its discretion in favour of the petitioner by granting leave under Article 136 of the Constitution against an award of the Industrial Tribunal without giving any reasons.
The Madras High Court held that in the circumstances of the case it would not be a proper exercise of its discretion in admitting the writ petition despite the evidence that the Industrial Tribunal failed to give opportunity to the petitioner to produce evidence and thus violated a principle of natural justice, when the Supreme Court had dismissed the leave petition against the award.
In that case the Supreme Court had dismissed the leave petition.
The facts were thus materially different from the facts of the present appeal.
Besides, this Court has taken a different view in the recent case of Workmen of Cochin Port Trust (supra), After having analysed the various cases cited, we are of the view that permission to withdraw a leave petition cannot be equated with an order of its dismissal.
We also come to the conclusion that in the circumstances of the case the High Court has not exercised a proper and sound discretion in dismissing the writ petition in limine on the sole ground that the application for special leave on the same facts and grounds had been withdrawn unconditionally.
We accordingly allow the appeal and set aside the impugned order and the order of the learned Single Judge dated 9th November, 1972 in writ petition No. 583 of 1972 and send the case back to him for considering the writ petition on merits.
There is, however, no order as to costs.
S.R. Appeal allowed.

summary:
The Industrial Tribunal, Ahmedabad, on a dispute referred to it under section 10(2) of the took up for consideration four demands for basic wages and adjustment, dearness allowance, gratuity and retrospectivity of the demands of the workmen.
The Tribunal gave its award on 30th of November 1971 which was published on 20th January, 1972 in the Maharashtra Government Gazette.
The appellant company, feeling aggrieved by the award, filed in the Supreme Court a petition for special leave to appeal under Article 136 of the Constitution.
Pursuant to a notice, the respondent workmen put in appearance and filed a counter affidavit.
After some arguments the appellant Company at its request was permitted to withdraw the leave petition as per the order of the Court dated 21st of August, 1972 which reads: "Upon hearing counsel the Court allowed the special leave petition to be withdrawn".
Four days thereafter the company filed a petition under Article 226 of the Constitution before the High Court challenging the award.
The petition was virtually based on the same facts and grounds as were taken in the special leave petition before the Supreme Court.
The learned single Judge who heard the petition determined the circumstances on the basis of the respective affidavits filed by the parties in which the company unconditionally withdrew its special leave petition and in view of those circumstances equated the withdrawal of the leave petition with the dismissal of the same.
Relying on Vasant Vithal Palse and Ors.
vs The Indian Hume Pipe Co. Ltd. and Anr. , a decision of that court, the learned Judge dismissed the writ petition in limine.
A Letters Patent Appeal against the said order of dismissal also met the same fate.
However, a petition under Article 133 of the Constitution for a certificate of fitness to appeal to the Supreme Court was accepted by the said Division Bench and a certificate was granted and hence the appeal.
Allowing the appeal, the Court ^ HELD: 1. Permission to withdraw a special leave petition cannot be equated with an order of dismissal.
If a non speaking order of dismissal cannot operate as res judicata for entertaining a fresh writ petition on the same facts and grounds taken in the special leave petition, an order permitting the withdrawal of the writ petition for the same reason cannot so operate.
[219B,222C D] 214 Workmen of Cochin Port Trust vs Board of Trustees of Cochin Port Trust and Anr., ; , followed.
Punjab Beverages Pvt. Ltd. vs Suresh Chand and Anr.
, ; ; Hoshnak Singh vs Union of India and Ors., ; ; Daryao and Ors.
vs The State of U.P. and Ors., ; , discussed.
Vasant Vithal Palse and Ors, v The Indian Hume Pipe Co. Ltd. and Anr.
, ; Management of Western India Match Co. Ltd., Madras vs The Industrial Tribunul, Madras and Anr.
A.I.R. 1958 Mad. 398, distinguished.
The order of a court has to be read as it is.
If the Supreme Court intended to dismiss the petition at the threshold.
it could have said so explicitly.
In the absence of any indication in the order itself, it will not be proper to enter into the arena of conjecture and to come to a conclusion on the basis of extraneous evidence that the Supreme Court intended to reject the leave petition.
If the Order of the Supreme Court is read as it is there is not the slightest doubt that the Supreme Court had allowed the company to withdraw the leave petition, in the instant case.
The approach of the High Court in having perused the affidavits filed by the parties to know the circumstances under which the leave petition was withdrawn is not correct.
[217 C D]