judgement:
ivil Appeal No. 5 (N) of 1982.
(From the Judgment and order dated the 14th September, 1981 of the High Court of Delhi at New Delhi in F.A. No. 29 of 1981) Soli J. Sorabjee, A. Minocha, Mrs. Veerna Minocha and Dr. Roxna Swamy, for the Appellant.
Rameshwar Nath for the Respondent.
The Judgment of the Court was delivered by 376 PATHAK, J.
I agree that the appeal must succeed.
The real question is whether the Explanation(l) to r. 13 of O. 9 of the Code of Civil Procedure bars the appeal filed by the respondent against the ex parte decree.
The Explanation was enacted by the Code of Civil Procedure (Amendment) Act, 1976 with effect from February 1, 1977.
Prior to its enactment, a defendant burdened by an ex parte decree could apply to the trial court under r. 13 of O. 9 for setting aside the decree.
He could also appeal under section 96 against the decree.
The mere filing of the appeal did not take away the jurisdiction of the trial court to entertain and dispose of the application for setting aside the ex parte decree.
It was where the appeal was disposed of, and the appellate decree, superseded the trial court decree by reversing, confirming or varying it that the trial court could not proceed to set aside its ex parte decree.
For the trial court decree was said to have merged with the appellate decree.
There are of course cases where the trial court decree does not merge with the appellate decree.
Such instances arise when the appeal is dismissed in default, or where it is dismissed as having abated by reason of the omission of the appellant to implead the legal representatives of a deceased respondent or where it is dismissed as barred by limitation.
So there a limited area where the trial court decree merges in the appellate decree and when that takes place an application before the trial court for setting aside the decree loses all meaning.
It was a limited area defined by the operation of the doctrine of merger.
From February 1, 1977 the area was extended enormously.
With the Explanation in operation, no application for setting aside an ex parte decree can lie where the defendant has filed an appeal and the appeal has been disposed of on any ground other than the ground that the appeal has been withdrawn by the appellant.
No doubt the provision described as an "Explanation", but as is well known it is not the rubric which decisively defines the true nature of a statutory provision.
Its true nature must be determined from the content of the provision, its import gathered from the language employed, and the language construed in the context in which the 377 provision has been enacted.
In the present .
case, the rule in Heydon 's case,(l) approval of and applied by this Court in Swantraj & Ors.
vs State of Maharashtra (2) and many other cases, is attracted.
What was the law before the amendment, what was the mischief and defect for which the law did not provide, what remedy has Parliament resolved and appointed to cure the mischief, and the true reason of the remedy.
It has been observed earlier that a defendant intending to avoid an ex parte decree could apply to the trial court for setting it aside and could 'also appeal to a superior court against it.
The courts were open to a duplication of proceedings, and although the immediate relief claimed in the two proceedings was not identical both ultimately aimed at a redecision on the merits.
Moreover, on the two proceedings initiated by the defendant, the application under r. 13 of O. 9 would subsequently become infructuous if the appeal resulted in a decree superseding the trial court decree.
It was also possible to envisage the appeal becoming infructuous if the trial court decree was set aside on the application under r. 13 of O. 9 before the appeal was disposed of.
The plaintiff was in the unfortunate position of being dragged through two courts in simultaneous proceedings.
Public time and private convenience and money was sought to be saved by enacting the Explanation.
The Code of Civil Procedure (Amendment) Act, 1976 was enacted with the avowed purpose of abridging and simplifying the procedural law.
By enacting the Explanation, Parliament left it open to the defendant to apply under r. 13 of O. 9 for setting aside an ex parte decree only if the defendant had opted Dot to appeal against the ex parte decree or, in the case where he had preferred an appeal, the appeal had been withdrawn by him.
The withdrawal of the appeal was tantamount to effacing it.
It obliged the defendant to decide whether he would prefer an adjudication by the appellate court on the merits of the decree or have the decree set aside by the trial court under r. 13 of O. 9.
The legislative attempt incorporated in the Explanation was to discourage a two pronged attack on the decree and to confine the defendant to a single course of action.
If he did not withdraw the appeal filed by him, but allowed the appeal to be disposed of on any other ground, he was denied the right to 378 apply under r. 13 of O.9.
The disposal of the appeal on any ground whatever, apart from its withdrawal, constituted sufficient reason for bringing the ban into operation.
In the present case, the appeal was dismissed as barred by limitation.
That it was an appeal even though barred by time is clear from M/s. Mela Ram & Sons vs Commissioner of Income tax,(1) where Venkataram Ayyar, J., speaking for the court, after referring to Nagendranath Dey vs Suresh Chandra Dey,(2) Raja Kulkarni and Ors.
vs The State of Bombay(3) and Promotho Nath Roy vs W.A. Lee(4) held that "an appeal presented out of time is an appeal, and an order dismissing it as time barred is one passed in appeal.
" There can be no dispute then that in law what the respondent did was to file an appeal and that the order dismissing it as time barred was one disposing of the appeal.
Accordingly, the appeal is allowed, the judgment and order passed by the High Court are set aside and the ex parte decree passed in favour of the appellant is restored.
There is no order as to costs.
AMARENDRA NATH SEN, J.
Whether the dismissal of an appeal against an ex parte decree on the ground that the appeal is barred by limitation attracts the provisions contained in the Explanation in O. 9. R.13 of the Code of Civil Procedure and creates a bar to the maintainability of an application under O. 9.
rule 13 of the Code of Civil Procedure for setting aside the ex parte decree, is the question which falls for determination in this appeal by special leave granted by this Court.
The question arises in the following circumstances: The appellant filed a petition against the respondent under section 13 of the Hindu Marriage Act for the dissolution of her marriage with respondent and for a decree of divorce.
The said petition was filed by the appellant on 1.9.79 and the appellant obtained an ex 379 parte decree on 6 12 1979.
It appears that on 10 11 79 the respondent husband had addressed a letter to the Court requesting the Court for an adjournment of the case fixed on 6 12 1979 on the ground that because of special assignment it would not be possible for him to be present in Court on that day.
The Court refused to grant an adjournment and on that date an ex parte decree for divorce was passed in favour of the appellant.
The respondent husband preferred an appeal against the ex parte decree in the High Court.
As the appeal had been filed in the High Court beyond time, the respondent husband also made an application under section 5 of the Limitation Act for condonation of delay in filing the appeal.
By its judgment and order dated 17 3 1981, the High Court dismissed the application tor condonation of delay, holding that no sufficient cause for condonation had been made out.
The High Court by the same order and Judgment also dismissed the appeal holding "the appeal being barred by time is dismissed".
The respondent moved an application before the Trial Court under O. 3, rule 13 of the Code of Civil Procedure for setting aside the ex parte decree.
The respondent had also moved an application under section 5 of the Limitation Act for condonation of delay in making the application under O.9, rule 13 of the C.P. Code.
The learned Trial Judge held that no sufficient cause had been made out for condonation of delay and in that view of the matter the learned Trial Judge dismissed both the applications.
Against the order of the Trial Judge, the respondent filed an appeal in the High Court.
The main contention of the husband, the appellant in the High Court, was that the Trial Court was in error in coming to the conclusion that no sufficient cause for condonation of delay had been made out and the Trial Court had also erred in not setting aside the ex parte decree as there was sufficient cause for non appearance of the husband on the date fixed for the hearing of the petition for divorce.
On behalf of the wife, the respondent in the appeal before the High Court, it was urged that the Trial Court was clearly right on merits in coming to the conclusion that no sufficient cause had been made out for condonation of delay and for setting aside the decree and it was further urged that in view of the provisions contained in the Explanation in order 9, rule 13 of the Code of Civil Procedure, the application for setting aside the ex parte decree was not maintainable, as the appeal preferred by the husband against the ex parte decree had already been dismissed by the High Court.
The High Court for reasons recorded in its Judgment dated 14.9.1981 380 came to the conclusion that sufficient cause bad been made out by the husband for condonation cf delay in presenting the application under O. 9, rule 13 beyond the prescribed time, that sufficient cause had been made out by the husband for his non appearance at the hearing of the petition on 6 12 1979 when the ex parte decree for divorce was passed and that the Explanation in order IX, rule 13 did not create any bar to the maintainability of the application under order 9, rule 13, as the appeal against the ex parte decree had been dismissed not on merits but on the ground of Limitation.
The High Court held: "Thus I am of the view that the disposal of an appeal against the ex parte decree means disposal on merits for debarring the defendant applicant from filing or continuing an application for setting aside the ex parte decree under order 9 rule 13 of the code.
If an application for condonation of delay in filing appeal has not been accepted it means no appeal was preferred in law and dismissal of appeal as barred by time would not be disposal of the appeal as contemplated under Explanation to order 9 rule 13 of the Code.
I, therefore, hold that the appellant 's application under order 9, rule 13 of the Code of Civil Procedure is maintainable".
Against the Judgment and order of the High Court this appeal has been preferred by the wife with special leave granted by this Court The main contention raised on behalf of the appellant is that on a true interpretation of the Explanation in order 9, rule 13 of the Code of Civil Procedure the application for setting aside the ex parte decree must be held to be incompetent and not maintainable.
It has been urged that the High Court erred in holding that the Explanation did not impose any bar to the maintainability of an application in a case where the appeal is not dismissed on merits.
The argument it that the said interpretation by the High Court is wrong and is clearly unwarranted by the plain language used in the said Section.
It is urged that it is not right to hold that when an appeal is filed beyond time and is dismissed on the ground of limitation, there is no appeal in the eye of law and therefore, no disposal, of an appeal as contemplated in the Explanation.
The learned counsel has submitted that the decisions of the Privy Council in the case of Chandri Abdul Majid vs Jawahar Lal (1) and of the Calcutta High (I) AIR 1914 P. C. 66.
381 Court in the case of Kalumuddin Ahmed vs Esabakuddin & ors (l) are of no assistance in interpreting the provisions contained in the Explanation in order 9, rule 13 of the Code of Civil Procedure.
The learned Counsel has further submitted that the High Court went wrong in interfering with the findings of the Trial Court that no sufficient cause had been made out for condonation of delay in filing an application under order 9, rule 13 of the Code and in any event there is no justifiable reason for non appearance of the respondent on the due date for the hearing of the matter.
On behalf of the respondent husband, it has been urged that on a true interpretation of the Explanation, the High Court has correctly held that the Explanation will not apply to a case where the appeal preferred against an ex parte decree is dismissed not on merits but on the ground of limitation.
It is the argument of the learned counsel that the Explanation will only apply when the appeal is dismissed on merits, as in such a case the decree of the Trial Court gets merged with the decree of the appellate Court and naturally the trial Court loses its competence to set aside the ex parte decree which was originally passed by the trial court, but has subsequently merged in the decree passed by the appellate court.
The learned counsel argues that the Explanation seeks to embody the principle that when a decree of the Trial Court gets merged in the decree of the appellate court, the Trial Court loses seisin over the matter and becomes incompetent to deal with a decree of the appellate court.
It is his argument that as in the instant case the appeal was dismissed on the ground of limitation and not on merits, there is no question of any merger of the decree P of the trial court with any decree of the appellate court.
He argues that an appeal preferred beyond time, unless delay in filing the appeal is condoned, becomes incompetent and is indeed no appeal in the eye of law.
He has placed reliance on the two decisions of the Privy Council in Chandri Abdul Majid (supra) and Kalimuddin Ahmed (supra), considered by the High Court in its judgment.
The learned counsel further argues that in the facts and circumstances of this case, the High Court was perfectly justified in holding that sufficient cause was made out for not making the appli 382 cation under order 9, rule 13 within the time prescribed and for condoning the delay in making the application, and the High Court was also clearly justified in coming to the conclusion that the respondent husband was prevented by sufficient cause for not being able to appear on the date fixed for hearing.
He submits that in any event this Court in this appeal should not interfere with these findings of the High Court in the larger interfere of the administration of justice and this Court should not deprive the husband of the opportunity of contesting the claim of the wife.
The principal question as to whether the application made by the husband for setting aside the ex parte decree is competent or not in view of the provisions contained in the Explanation in O. 9, rule 13 of the Code of Civil Procedure turns on a proper interpretation of the Explanation.
Order 9, rule 13 of the Code of Civil Procedure reads as follows: "In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set aside, and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for Proceeding with the suit; Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: Provided further that no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff 's claim.
383 Explanation: Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.
" Order 9, rule 13 makes provision for the setting aside of an ex parte decree against the defendant.
It lays down the conditions and also the procedure for the setting aside of an ex parte decree.
The Explanation was introduced into this provision by the Code of Civil Procedure (Amendment) Act, 1976 (Act 104 of 1976) and it has come into force from 1.2 1977.
The proceeding by the wife was initiated on 1.9.1979 and the ex parte decree of divorce in her favour was passed on 6.12.1979.
The application by the husband has been made for setting aside this ex parte decree.
The Explanation, therefore, operates; the real question being whether in the facts and circumstances of this case, the bar created by the Explanation to the setting aside of an ex parte decree is attracted to the present application.
A plain reading of the Explanation clearly indicates that if any appeal against an ex parte decree has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application for setting aside the ex parte decree under order 9, rule 13 of the Code will be entertained.
The words used in the Explanation are clear and unambiguous.
The language used in the explanation clearly suggests that where there has been an appeal against a decree passed ex parte and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under order 9, rule 13 of the Code for setting aside the ex parte decree.
An appeal may be disposed of on various grounds.
It may be disposed of after proper hearing on merits and this is usually the normal way of disposal of an appeal.
An appeal may be disposed of also for non prosecution thereof.
Though the dismissal of an appeal on the ground of non prosecution of the same is not disposal of the appeal on merits, yet the dismissal of the appeal for non prosecution results in the disposal thereof.
An appeal may also be dismissed on the ground of limitation, if condonation of delay in filing the appeal is not allowed by the Court.
An appeal may also be liable to be dismissed for non compliance with any condition relating to 384 the filing of the appeal and also for other reasons.
An appellant is also entitled to withdraw the appeal and the withdrawal of the appeal also results in the disposal of the appeal, though in such a case no merits of the appeal are adjudicated upon.
The language used in the Explanation makes it clear that the withdrawal of an appeal is considered to be disposal of the appeal, as contemplated in the Explanation.
It is significant to note that though an appeal may be disposed of on very many grounds the Legislature has thought it fit to provide in the Explanation that only when an appeal against an ex parte decree is disposed of on the ground that the appellant has withdrawn the appeal, the bar created to the maintainability of an application under order 9, rule 13 of the Code for setting aside the ex parte decree will not apply.
The Legislature must be presumed to know that there are various ways of disposal of an appeal.
The Legislature has, however, thought it fit to provide that when an appeal has been preferred against an ex parte decree, the disposal of the appeal on any ground excepting the solitary ground of disposal of the appeal by withdrawal of the same by the appellant, will create a bar to the maintainability of an application under Order 9, rule 13 of the Code of Civil Procedure.
By specifically providing in the Explanation that the disposal of any appeal from the ex parte decree on any ground other than the solitary ground of withdrawal of the appeal by the appellant, the legislative intent is made manifestly clear that in all other cases of the disposal of the appeal on any other ground than the ground of withdrawal of the appeal, there will be a bar to the maintainability of the application under order 9, rule 13 and no application will lie under order 9, rule 13 for the setting aside of an ex parte decree.
Withdrawal of an appeal by an appellant does not result in any adjudication on merits.
Even then, the withdrawal of an appeal is still considered to be a disposal of the appeal; and the disposal of an appeal only on this ground of withdrawal of the appeal by the appellant, it is made clear in the Explanation, will not create any bar to the maintainability of the application under order 9, rule 13 of the Code of Civil Procedure.
On a proper interpretation of the explanation we are of the opinion that where there has been an appeal against an ex parte decree and the appeal has not been withdrawn by the appellant and has been disposed of on any ground, the application under order 9, rule 13 of the Code of Civil Procedure will not lie and cannot be entertained.
385 In the instant case, an appeal had admittedly been filed against the ex parte decree.
The appeal was beyond time.
The appellant had not withdrawn the appeal.
The appellant had filed an application for condonation of delay in preferring the appeal.
The application for condonation of delay had been rejected by the Court and the appeal had been dismissed an the ground of limitation.
The dismissal of the appeal on the ground of limitation resulted in disposal of the appeal though not on merits.
The appeal filed against the ex parte decree was, therefore, disposed of on grounds other than the ground that the appellant had withdrawn the appeal.
The application under order 9, rule 13 after the disposal of the appeal, therefore, became incompetent in view of the provisions contained in the Explanation and could not therefore be entertained by the Court.
The view expressed by the High Court must, therefore.
be held to be erroneous.
In support of the view taken by the High Court, the High Court referred to and relied on the decision of the Privy Council in the case of Chandri Abdul Majid (supra).
The decision of the Privy Council, in our opinion, has no material bearing on the question involved in the present appeal.
In the case before the Privy.
Council, the Judicial Committee was concerned with the question as to the commencement of the period of limitation in respect of a decree passed by the Trial Court, affirmed by the High Court on appeal and a further appeal therefrom to the Privy Council was dismissed by the Privy Council for non prosecution of the appeal.
The appellant before the Privy Council was in the position of a mortgagor and the Respondents of mortgagees under a mortgage dated 3rd September, 1868.
In 1889 a suit was commenced before the Subordinate Judge of Allahabad to enforce that mortgage and on the 12th May, 1890, a decree was passed by him for the sale of the property unless payment was made on or before the 12th August, 1890.
An appeal was brought from that decree to the High Court and on the 8th April, 1893 that appeal was dismissed and the decree of the Subordinate Judge was confirmed.
The mortgagor obtained leave to appeal to the Judicial Committee but did not prosecute his appeal; and on the 13th May, 1901, the appeal was dismissed for want of prosecution.
The Mortgagor decree holder made an application to the Subordinate Judge on the 11th June, 1909 for an order absolute to sell the mortgaged properties; it appears that an 386 order had been 'made on the said application for execution in favour of the decree holder and ultimately the validity of the execution proceedings went to the Privy Council for consideration.
The main argument before the Privy Council was that the decree which was sought to be enforced had been constructively turned into a decree of the Privy Council by virtue of the dismissal of the appeal by the Privy Council on 13.5.1901 for non prosecution of the appeal and the period of limitation, therefore, was 12 years from 13.5.1901.
The Judicial Committee rejected this contention holding that the order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from.
The Judicial Committee held that as there was no decree by the Judicial Committee adopting or confirming the decision appealed from, and as there was never any stay of the decree passed by the High Court affirming the decree of the Subordinate Judge, the period of limitation will run from the date of the passing of the decree by the High Court and the period will be three years from the date of the decree! passed by the High Court.
The Privy Council allowed the appeal holding that the application dated 11.6.1909 for sale of the mortgaged properties was barred by limitation.
While considering the question whether the period of limitation should be effective from the date of the dismissal of the appeal by the Judicial Committee for non prosecution thereof, the Judicial Committee had made the following observations: "The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from.
It merely recognised authoritatively that the appellant had not complied with the conditions under which the appeal was open to him, and that therefore he was in the same position as if he had not appealed at all.
" This position was made abundantly clear by the Judicial Committee by the observations immediately following: "To put it shortly, the only decree for sale that exists is the decree, dated 8th April, 1893, and that is a decree of the High Court of Allahabad." 387 In the case of Kalimuddin Ahamed vs Esabakuddin and ors the material facts were: A partition suit was instituted on 20.12.1918 against several defendants, among whom the appellant before the High Court was No. 4.
Two of the defendants contested the suit and on 22.9.1919 a preliminary decree from partition was made on contest against two of the defendants and ex parte against the others.
The appellant did not appear at all in the first Court and he was one of the defendants against whom the decree was made ex parte.
On 17.12.1919 the first defendant alone preferred an appeal against the decree to the High Court and on 20.12.1919 the appellant presented an application to the Trial Court under order 9, rule 13 of the Code of Civil Procedure.
This application was kept pending until after the disposal of the appeal preferred by the first defendant.
One of the respondents in the appeal filed by the first defendant died and as the appellant did not take proper steps to bring the heirs on the record, the appeal was dismissed as against them and then against the others it was held that in the absence of the heirs of the deceased respondent the appeal could not proceed and the appeal was accordingly dismissed on 5th January 1922.
Thereafter the application of the appellant under 9, rule 13 of Code of Civil Procedure came up for hearing and on 8th April 1922 a petition of compromise between the plaintiff and the appellant was presented and in accordance therewith the Court ordered that the suit should be restored to its original number as against the applicant who was defendant No. 4 in the suit in regard to three only of the plots mentioned in the plaint.
In making this order, the Court proceeded on the compromise alone without any enquiry as to the causes which prevented defendant No. 4 from appearing at the trial.
In July.
1922, a different Judge was presiding over the Court and on 5th July, 1922, he expressed doubt as to the legality of the order passed by his predecessor on 8th April, 1922 and after hearing the arguments he delivered his judgment on 7th July, 1922 holding that the order passed by his predecessor on 8th April, 1922 was made without jurisdiction because there was no longer any ex parte decree over which the Court had control and the said order was a nullity and utterly void so that no proceeding to set it aside were necessary and the fact of the order being made on consent as against the plaintiff could not convert it into a valid order.
Against this judgement, an appeal was filed in the High Court.
A division Bench of 388 the Calcutta High Court treated the appeal as a revision petition under section 115 and set aside the order, holding that when an ex parte decree was appealed against and also an application to set aside was made but the appeal was dismissed for not bringing the representatives of the deceased respondent on record, the ex parte decree did not merge in the appellate decree and an order passed on consent on the application to set aside the decree was not without jurisdiction.
The decision of the Judicial Committee in Abdul Majid 's case was also considered in this case.
Walmsley, J. held at p1832 as follows : "The order of this Court may be a decree, without being such a decree as to supersede the decree of the lower Court.
All that this Court decided was that having regard to the nature of the appeal, a certain defendant was a necessary party, and that in the absence of that defendant, . or on her death her representatives, the appeal could not proceed.
On the merits of the appeal in other respects there was no adjudication, but on the contrary an express refusal to adjudicate.
Consequently it is of no importance whether the order did or did not amount to a decree.
What .
is of importance is that it was not a decree in which that of the lower Court was merged:" Mukherjee, J., the other learned Judge on the Bench observed at p. 834 : "Now the consideration of the question as to whether the learned Subordinate Judge had jurisdiction to pass the order of the 8th April, 1922 involves a consideration of the following questions (a) whether the order of this Court passed on the 5th January 1922, amounted to a decree or not, (b) if it was a decree, whether the ex parte decree can be held to have a merged into it, (c) whether the learned Subordinate Judge had jurisdiction to set aside the ex parte decree and restore the suit, and (d) whether his successor could declare or was right in declaring the aforesaid order a nullity.
As to (a): The definition of the word 'decree ' in the Code of Civil Procedure, in so far as it purports to be a 389 definition at all, lays down the following essential and distinguishing elements viz., that the decision must have been expressed in a suit, that the decision must have been passed on the rights of the parties with regard lo all or any of the matters in controversy in the suit, that the decision must be one which conclusively determines those rights.
Then certain orders which may or may not satisfy the above requirements are either expressly included in or excluded from the definition.
The whole object of defining a 'decree ' in the said Code appears to be to classify orders in order to determine whether an appeal or in certain cases a second appeal lies therefrom.
Apart from that object .
this definition is of no value.
I am not prepared to accept the contention of the respondent that because an order rejecting a plaint is a decree, an order dismissed an appeal on the ground that it was improperly constituted is by mere analogy to be treated as a decree.
I am unable to reconcile either in principle or in theory why an order rejecting a plaint should stand on a different footing from orders of dismissal for default, and yet one is a decree and the other is not.
It is true that an order of rejection of a plaint has been expressly included in the definition of a 'decree ' but the legislature has included it and no analogy can be drawn therefrom.
The question whether an adjudication is an order or decree is to be tested not by general principles, but by the expressions of the Code, and those words are to be construed in their plain and obvious sense." The learned Judge further held at p. 835: "Here the position was that the plaintiff had got a decree as against the defendants in respect of a certain share; one of the defendants viz., the defendant No. 1, had preferred the appeal; excepting the question as to whether the appeal was maintainable in the absence of the minors, the heirs of the defendants No. 6, no other question was gone into, and in fact none could be litigated, and that is more important is what the rights of the defendant 390 No. 4 were as against the plaintiff or whether the ex parte decree passed against him was a good or valid one, or whether it should stand at all, could scarcely be determined in that appeal.
There is no authority for the proposition that under circumstances such as these, the ex parte decree can possibly be said to have merged in the decree by passed the appellate Court.
" It may be noticed that in neither of these two decisions there was or could be any occasion for interpreting the Explanation which came to be incorporated years later and these two decisions have mainly proceeded on the basis of merger of the decree passed by the Trial Court with the decree of the Appellate Court.
The words used in Explanation make it abundantly clear that disposal of the appeal as contemplated in the Explanation is not intended to mean or imply disposal on merits resulting in the merger of the decree of the Trial Court with the decree, if any, of the Appellate Court on the disposal of the appeal.
The Explanation speaks of "the appeal has been disposed of on any ground other then the ground that the appellant has withdrawn the appeal" and these words make it abundantly clear that disposal of the appeal may be on any ground and the withdrawal of on appeal by the appellant is also considered to be the disposal of the appeal on the ground of withdrawal, and, the disposal of the appeal from the ex parte decree on the ground of withdrawal of the appeal by the appellant has only been exempted from the operation of the Explanation.
If the intention was that the Explanation would not be attracted and there would be no disposal of an appeal within the meaning of the Explanation unless the appeal was disposed of on merits resulting in the merger of the decree of the Trial Court with the decree of the Appellate Court, it would not have been necessary to provide specifically that the disposal of an appeal on the ground of withdrawal would be exempt, because the disposal of an appeal on the ground of withdrawal would not be disposal of the appeal within the meaning of the Explanation, as on the withdrawal of an appeal there is no decision on merits and there is no merger of the decree with any decree of the Appellate Court.
The legisla 391 ture could also have simply provided in the Explanation for the disposal of an appeal on merits and it would not have been necessary to use the other words, "on the disposal of an appeal on any ground other than the ground that the appellant has withdrawn the appeal.
The words used, "disposal of the appeal on any ground other than the ground that the appellant has withdrawn the appeal" will undoubtedly attract within its ambit the disposal of an appeal on the ground of the same being dismissed for non prosecution, Though in the case of such disposal of the appeal there will be no effective adjudication of the appeal on merits and the disposal of the appeal may not have the effect of the decree of the Trial Court appealed against being merged with any decree of the Appellate Court on the disposal of the appeal.
The disposal of an appeal on the ground of limitation may or may not be adjudication on the merits of the appeal, depending on the particular facts and circumstances of the case and may or may not result in the merger of the decree of the Trial Court with the decree, if any, of the appellate Court; but there cannot be any manner of doubt that when an ' appeal from the ex parte decree is dismissed on the ground of limitation, the appeal is disposed of on any ground other than the ground that the appellant has withdrawn the appeal.
As the dismissal of the appeal on the ground of limitation results in the disposal of the appeal on any ground other than the ground of the withdrawal of the appeal by the appellant, the explanation is attracted, and the application for setting aside the ex parte decree becomes in competent after the disposal of the appeal and cannot be entertained.
As in our view, the application for setting aside the ex parte decree does not lie and cannot be entertained, in view of the provisions contained in the Explanation, it does not become necessary for us to go into the merits of the application to consider whether sufficient cause had been shown by the respondent for his nonappearance at the hearing at the date fixed and also for not preferring the application with n the time prescribed.
The appeal, therefore, succeeds.
The judgment and order passed by the High Court are set aside and the ex parte decree 392 passed in favour of the appellant OD 6.12.1979 is restored.
In the facts and circumstances of this case, we do not propose to make any order for costs.
S.R. Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant wife filed on 1.9.1979, a petition under section 13 of the Hindu Marriage Act, against the respondent for dissolution of her marriage with him and for a decree for divorce.
The next date of hearing was fixed for 6.12.1979.
On 10.11.1979, the respondent husband had addressed a letter to the court requesting the court for an adjournment of the case fixed for 6.12.1979 on the ground that because of special assignment it would not be possible for hi to be present in Court on that day.
On that date, the court refused to grant the adjournment and passed an ex parte decree in favour of the appellant.
The respondent husband, thereafter preferred an appeal under section 96 of the Civil Procedure Code before the High Court with an application under section 5 of the Limitation Act to condone the delay in filing.
The High Court dismissed the condonation application as well as the appeal.
Thereafter the respondent husband moved the Trial Court with an application under Rule 13 of order IX with an application under section 5 of the Limitation Act.
Both the applications were dismissed.
The respondent husband moved the High Court against the said orders of dismissal which was accepted rejecting the contention of the appellant wife that the newly added Explanation to Rule 13 of order IX C.P.C. is a bar to the maintainability of the application itself filed by the respondent husband under that Rule.
Hence the appeal by the appellant wife, after obtaining special leave of the Court.
Allowing the appeal the Court, ^ HELD: Per Pathak, J. (Concurring with A.N. Sen, J.) 1.
No doubt the provision is described as an 'Explanation ', but it is not the rubric which decisively defines the true nature of a statutory provision.
Its true 373 nature must be determined from the content of the provision, its import gathered from the language employed, and the language construed in the context in which the provision has been enacted.
What was the law before the amendment; what was the mischief and defect for which the law did not provide, what remedy has Parliament resolved and appointed to cure the mischief, and the true reason of the remedy.
[376 E G, 377 A B] Rule in Heydon 's case, 76 English Reports 637; Swantraj & Ors.
vs State of Maharashtra ; , followed.
The Code of Civil Procedure (Amendment) Act, 1976 was enacted with the avowed purpose of abridging and simplifying the procedural law.
Prior to it a defendant burdened by an ex parte decree could apply to the trial court under Rule 13 of order IX C.P.C. for setting aside the decree.
He could also appeal under section 96 against the decree.
The mere filing of the appeal did not take away the jurisdiction of the trial court to entertain and dispose of application for setting aside the ex parte decree.
It was where the appeal was disposed of, and the appellate decree superseded the trial court decree by reversing, confirming or varying it that the trial court could not proceed to set aside its ex parte decree.
For the trial court decree was said to have merged with the appellate decree.
Prior to the Amendment Act, the courts were open to a duplication of proceedings, and although the immediate relief claimed in the two proceedings was not identical both ultimately aimed at a redecision on the merits.
The earlier disposal of either resulted in the other becoming infructuous.
The plaintiff, therefore, was in the unfortunate position of being dragged through two courts in simultaneous proceedings.
[376 A C, 377 C D] 2:2.
Public time and private convenience and money was sought to be saved by enacting the Explanation.
By enacting the Explanation, Parliament left it open to the defendant to apply under Rule 13 of order IX for setting aside an ex parte decree only if the defendant had opted not to appeal against the ex parte decree or, in the case where he had preferred an appeal, the appeal had been withdrawn by him.
The withdrawal of the appeal was tantamount to effacing it.
It obliged the defendent to decide whether he would prefer an adjudication by the appellate court on the merits of the decree or have the decree set aside by the trial court under Rule 13 of order IX.
The legislative attempt incorporated in the Explanation was to discourage a two pronged attack on the decree and to confine the defendant to a single course of action.
If he did not withdraw the appeal filed by him, but allowed the appeal to be disposed of on any other ground, he was denied the right to apply under r. 13 of order IX.
The disposal of the appeal on any ground whatever, apart from the withdrawal, constituted sufficient reason for bringing the ban into operation.
[377 D G, 378 A] 2:3.
In the present case, the appeal was dismissed as barred by limitation and the order was one disposing of the appeal on any other ground.
[378 A] M/s. Mela Ram & Dons vs Commissioner of lncome tax; , , followed.
374 Per Amarendra Nath Sen, J. 1:1.
A proper interpretation of the Explanation, makes it clear that where there has been an appeal against an ex parte decree and the appeal has not been withdrawn by the appellant and has been disposed of any ground, the application under Rule 13 of order IX of the Code of Civil Procedure will not lie and cannot be entertained.
[384 G H] 2:2.
The words used in the Explanation are clear and unambiguous.
The language used in the Explanation makes it clear that the withdrawal of the appeal is considered to be disposal of the appeal, as contemplated by the Explanation.
Though an appeal may be disposed of on very many grounds, the Legislature has thought it fit to provide in the Explanation that only when an appeal against an ex parte decree is disposed of on the ground that the appellant has withdrawn the appeal, the bar created to the maintainability of an application under order IX, Rule 13 of the Code for setting aside the ex parte decree will not apply.
The Legislature must be presumed to know that there are various ways of disposal of an appeal and that in all other cases of the disposal of the appeal on any other ground than the ground of withdrawal of the appeal, there will be a bar to the maintainability of the application under order IX, Rule 13 and no application will lie for setting aside the ex parte decree.
Withdrawal of appeal by an appellant does not result in any adjudication on merits.
Even, then, the withdrawal of an appeal is still considered to be a disposal of the appeal, but not creating a bar for the maintainability of the application under order IX Rule 13 [383 E, 384 B G] 1:3.
In the instant case, the appellant had not withdrawn the appeal.
His application for condonation of delay was rejected by the High Court and therefore, the appeal was dismissed on the ground of limitation.
The appeal filed against the ex parte decree was, therefore, disposed of on grounds other than the ground of withdrawal of the appeal.
The application under order IX, Rule 13, after the disposal of the appeal, therefore, became incompetent.
[385A B] 2:1.
The words used in the Explanation make it abundantly clear that disposal of the appeal as contemplated in the Explanation is not intended to mean or imply disposal in merits resulting in the merger of the decree of the Trial Court with the decree, if any, of the Appellate Court on the disposal of the appeal.
The Explanation speaks of "the appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the appeal" and these words make it abundantly clear that disposal of the appeal by the appellant is also considered to be the disposal of the appeal on the ground of withdrawal; and, the disposal of the appeal from the ex parte decree on the ground of withdrawal of the appeal by the appellant has only been exempted from the operation of the Explanation.
If the intention was that the Explanation would not be attracted and there would be no disposal of an appeal within the meaning of the Explanation unless the appeal was disposed of on merits resulting in the merger of the decrees of the Trial Court with the decree of the 375 the Appellate Court, it would not have been necessary to provide specifically that the disposal of an appeal on the ground of withdrawal would be exempt, because the disposal of an appeal on the ground of withdrawal would not be disposal of the appeal within the meaning of the Explanation, as on the withdrawal of an appeal there is no decision on merits and there is no merger of the decree with any decree of the Appellate Court.
The legislature could also have simply provided in the Explanation for the disposal of an appeal on merits and it would not have been necessary to use the other words, "on the disposal of an appeal on any ground other than the ground that the appellant has withdrawn the appeal.
The words used, "disposal of the appeal on any ground other than the ground that the appellant has withdrawn the appeal" will undoubtedly attract within its ambit the disposal of an appeal on the ground of the same being dismissed for non prosecution, though in the case of such disposal of the appeal there will be no effective adjudication of the appeal on merits and the disposal of the appeal may not have the effect of the decree of the trial court appealed against being merged with any decree of the Appellate Court on the disposal of the appeal.
[390D H, 391 A C] 2:2.
The disposal of an appeal on the ground of limitation may or may not be adjudication on the merits of the appeal, depending on the particular facts and circumstances of the case and may or may not result in the merger of the decree of the Trial Court with the decree, if any, of the appellate Court; but there cannot be any manner of doubt that when an appeal from the ex parte decree is dismissed on the ground of limitation, the appeal is disposed of on any ground other than the ground that the appellant has withdrawn the appeal.
As the dismissal of the appeal on the ground of limitation results in the disposal of the appeal on any ground other than the ground of the withdrawal of the appeal by the appellant, the Explanation is attracted, and the application for setting aside the ex parte decree becomes incompetent after the disposal of the appeal and cannot be entertained.
[391 C F] Ckandri Abdul Majid vs Jawahar Lal, A.l.
R. 1914 P.C. 66: Kalumuddin Ahmad vs Esabakuddin & Ors.
, A.I.R. 1924 Cal. 830; discussed and held inapplicable.


judgement:
: Special Leave Petition (Criminal) No. 432 of 1981.
From the Judgment and order dated the 25th September, 1980 of the High Court of Andhra Pradesh at Hyderabad in Criminal Revision Case No. 461 of 1980.
P. Ram Reddy and G.N. Rao for the Petitioner.
The order of the Court was delivered by CHINNAPPA REDDY.
The respondent was charged with an offence under Section 34 (a) of the Andhra Pradesh Excise Act on the allegation that he was found in possession of a quantity of eight litres of illicitly distilled arrack, an intoxicant, in contravention of the provisions of the Act and the Rules made under the Act.
The learned Judicial First Class Magistrate convicted him and sentenced .
him to suffer rigorous imprisonment for a period of two years, which was the minimum sentence that could be awarded for an offence under Section 34 (a) of the A.P. Excise Act.
On an appeal preferred by the respondent, the Sessions Judge, Anantapur con firmed the conviction and sentence.
The respondent preferred a revision petition before the High Court.
The learned Single Judge who heard the revision confirmed the conviction.
But, on the question of sentence, he observed: 497 "Mr. T. Ramulu, appearing for the petitioner who has A filed this revision through jail, has submitted that the petitioner is aged 30 years and is a first offender and he has already served a sentence of about IN months and that the sentence may be appropriately modified.
It is true that under the A.P. Excise Act, a statutory minimum sentence is prescribed.
But having regard to the submissions made above, I feel the interest of justice will be satisfied if the sentence of imprisonment imposed against the petitioner is reduced to the period already undergone and if the fine of Rs. 5O/ , imposed is set aside.
The revision is dismissed subject to the modification as stated above.
" We are unable to understand why the High Court reduced the sentence.
The statute prescribes a minimum sentence.
It does not provide for any exceptions and does not vest the Court with any discretion to award a sentence below the prescribed minimum under any special circumstances.
The learned judge has himself noticed that the sentence imposed is the statutory minimum.
Having noticed that the statute prescribes a minimum sentence for the offence, the High Court has ununderstably reduced the sentence of imprisonment to less than the minimum permissible.
The High Court was clearly in error in doing so.
We think we have said enough to correct the error.
It is unnecessary to pursue the matter further by granting special leave.
The petition is dismissed with the above observations.
P.B.R. Petition dismissed.

summary:
Where the statute prescribes minimum sentence and does not provide for any exceptions or vest the Court with any discretion to award a sentence below the prescribed minimum under any special circumstances, a Court cannot reduce the sentence to less than the minimum permissible.
[497 D E]


judgement:
: Criminal Appeal No. 45 of 1980 From the Judgment and Order dated the 17th October, 1979 of the High Court of Rajasthan in S.B. Criminal Appeal No. 39 of 1977.
Frank Anthony and S.K. Jain, for the Appellant.
Badri Dass Sharma for the Respondent.
The Judgment of the Court was delivered by DESAI, J.
Appellant Kishan Chand Mangal was convicted by the learned Special Judge (A.C.D. Cases), Jaipur, Rajasthan, for 571 having committed offences under section 161, Indian Penal Code and section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947, and was sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 200/ , in default to suffer further rigorous imprisonment for one month on each count with a further direction that both the sentences will run concurrently.
After an unsuccessful appeal to the High Court of Rajasthan, he has preferred this appeal by special leave.
Appellant at the relevant time was serving as Factory Inspector, Ajmer and in that capacity he accompanied by his friend paid a visit on November 20, 1974, to the factory named 'Krishna Industries ' whose proprietor was one Rajendra Dutt.
Appellant said that his visit being after a lapse of one and a half year, the proprietor should pay him pocket money.
Rajendra Dutt replied that his establishment was not covered by the Factories Act and showed disinclination to grease the palms of the appellant.
However, appellant persisted in his demand and told Rajendra Dutt if he did not pay Rs. 150/ he was likely to be entangled in some legal proceedings.
So saying appellant and his companion left.
Rajendra Dutt was not inclined to give the bribe demanded from him and, therefore, on November 22, 1974, he contacted Dy.
S.P., A.C.D., Ajmer, P.W. 7, Mahavir Prasad and gave a written complaint Ext.
P 12 complaining about the demand of illegal gratification by the appellant requesting for taking suitable action in the matter.
He also produced 15 currency notes each of the denomination of Rs.10/ .
P.W. 7 Dy.
S.P. Mahavir Prasad directed P.W. 3 Prahlad Narayan to bring two persons to witness the search and accordingly P.W. 1 Ram Babu and P.W. 2 Keshar Mal were requested to join the raiding party.
15 currency notes produced by the complainant were smeared with phenolphthalein powder and a memorandum of the same was prepared.
The raiding party led by P.W. 7 Dy.
S.P. Mahavir Prasad and including the complainant Rajendra Dutt, two motbirs P.W. 1 Ram Babu and P.W. 2 Keshar Mal, P.W. 3 Prahlad Narayan, a clerk in the Office of the Anti Corruption Department, started by a jeep driven by P.W. 6 Bajrang Singh to go to the residence of the appellant.
Office and residence of the appellant are situated in the same building.
Complainant Rajendra Dutt and the two motbirs Ram Babu and Keshar Mal proceeded ahead and entered into the room used as residential portion of the building.
Ram Babu and Keshar Mal stopped in the verandah and the complainant Rajendra Dutt went inside.
Appellant was seen sitting on a cot.
On inquiry by complainant Rajendra Dutt appellant replied that he was not well 572 and that he was suffering from cold Appellant then inquired whether complainant Rajendra Dutt had brought the money and the complainant replied that he had brought the money and handed over marked currency notes 15 in number each of the demonination of Rs. 10/ which the appellant accepted and put the same under his pillow.
Rajendra Dutt came out in the verandah and as instructed, gave the agreed signal whereupon Dy.
S.P. Mahavir Prasad, the two motbirs and others entered the room.
Mahavir Prasad introduced himself as Dy.
S.P. ACD, and asked the appellant whether he had accepted Rs. 150/ as and by way of bribe from complainant Rajendra Dutt.
Appellant denied having accepted any bribe or any money from Rajendra Dutt whereupon a search of his person was taken.
When the search of the person of the accused was being taken motbirs Ram Babu and Keshar Mal pointed towards the pillow indicating that the bribe taken by the appellant was kept underneath the pillow.
P.W. 6 Driver Bajrang Singh was asked to lift the currency notes and the numbers were tallied with the memorandum prepared earlier.
Hands of the accused were dipped in the solution of sodium carbonate which turned pink.
After the memorandum was completed recording all these facts and after completing investigation sanction was obtained and the appellant was prosecuted for the aforementioned offences.
By the time the case came up for trial complainant Rajendra Dutt was dead and his evidence was not available.
Prosecution examined the two motbirs Ram Babu and Keshar Mal, Dy.
SP, ACD Mahavir Prasad, Clerk Prahlad Narayan, Driver Bajrang Singh and two others.
Statement of the accused was recorded under section 313 of the Code of Criminal Procedure and he offered himself as a witness in his defence.
In his evidence he stated that on the date of occurrence around 4.30 p.m. when he was sitting in his cot complainant Rajendra Dutt came and took a seat in the chair placed nearby.
Appellant enquired why he had come and whether he had brought any written complaint against Clerk Mr. Singhal.
According to him, the complainant replied that action be taken against Singhal by recording his statement whereupon the appellant said that if the complainant has any grievance he should come with a written complaint.
Appellant further stated that thereafter he went to the bath room for spitting cough and he came out and sat on the cot.
Complainant Rajendra Dutt enquired whether he can drink water from a jug which was lying there.
Thereafter Rajendra Dutt went 573 out of the room and soon thereafter 8 persons including Rajendra Dutt entered the room.
He stated that two of the members of the raiding party caught his hands and when he tried to get himself released from the grip of those persons the grip tightened.
One of the members of the raiding party then told him that he was Dy.
SP, ACD, Ajmer and called upon him to produce Rs. 150/ he had taken from Rajendra Dutt.
Appellant stated that he immediately told the Dy.
SP that he had not accepted any money from Rajendra Dutt whereupon the Dy.
SP came near him and put his hand in the pocket of the garment put on by the appellant.
Appellant objected to any search being taken and insisted on keeping two respectable persons present.
He further stated that Dy.
SP quarrelled with him and then he sent a telephone message to S.P, Ajmer that a Factory Inspector has quarrelled with him and he should be provided with extra police help.
Thereafter his hands were dipped in a solution but the colour of the solution did not change and remained white.
Appellant then told the Dy.
SP that Rajendra Dutt had come to complain against one Singhal, a Clerk and in support of this he produced Ext.
D 2 marked collectively in respect of five letters.
At this stage the Dy.
SP according to the appellant asked Rajendra Dutt why he had given a false signal whereupon the complainant Rajendra Dutt informed the Dy SP that the bribe money was lying under the pillow whereupon the Dy SP removed the pillow and collected the currency notes.
He further stated that he has been involved in this false case at the instance of K.C. Sogani, Factory Manager of Krishna Mills, Beawar.
This was broadly the defence of the appellant as collected from his evidence.
The learned special Judge noted the fact that the complainant Rajendra Dutt was not available and, therefore, the first demand at the Factory of Rajendra Dutt on November 20, 1974, has not been proved.
The learned Judge, however, held that the evidence of two motbirs Ram Babu and Keshar Mal was reliable and was amply corroborated by the recovery of currency notes as well as the presence of phenolphthalein powder on the hands of the accused.
The learned Judge rejected the defence version that the currency notes were planted when the appellant had gone into the bath room.
The learned Judge accordingly convicted and sentenced the appellant as mentioned hereinbefore.
The appellant having unsuccessfully appealed to the Rajasthan High Court, has filed this appeal by special leave.
574 Mr. Frank Anthony, learned counsel for the appellant contended that there are certain features of this case which would convincingly show that the prosecution case cannot be accepted.
He enumerated the circumstances as: (i) absence of name of the appellant in the F.I.R. Ext.
P 12; (ii) absence of evidence of demand as on November 20, 1974; (iii) absence of any prior arrangement where and when the complainant was to meet the appellant and, therefore, the trap could not be successfully arranged which might permit an inference that the whole story of acceptance of bribe money is concocted; (iv) further two motbirs P.W. 1 Ram Babu and P.W. 2 Keshar Mal were petty clerks specially selected by P.W. 3 Prahlad Narayan; (v) in their evidence they have tried to improve upon the prosecution version which shows their unconcealed interest in the success of the trap which would render them partisan witnesses; (vi) there are certain omissions in the evidence of the prosecution witnesses which may indicate that the defence version of planting the currency notes when the appellant had gone to bath room is probabilised; (vii) that no inference be drawn from the fact that when hands of the appellant were dipped in the sodium carbonate solution it turned pink because admittedly when hands of the accused were caught by the members of the raiding party one or the other of them may have transmitted phenolphthalein powder to the hands of the appellant.
Complainant Rajendra Dutt on whose complaint a trap was arranged was dead by the time the case came up for trial and his evidence was not available to the prosecution.
However, the complaint Ext.
P 12 filed by him was admitted in evidence because P.W. 7 Mahavir Prasad, the Dy SP who recorded the same gave evidence about the same.
The averments in the complaint even in the background of these facts would not provide substantive evidence and the only use to which it can be put is that a complaint of this nature was filed which tends to explain the subsequent actions taken by the Dy SP.
High Court has examined the evidence of two motbirs P.W. 1 Ram Babu and P.W. 2 Keshar Mal, and also the evidence of P.W. 7 Mahavir Prasad and agreed with the findings recorded by the trial court.
We need not examine the evidence afresh but limit our examination to specific contentions raised by Mr. Anthony.
The first contention is that the name of the appellant Kishan Chand Mangal is not to be found in Ext.
That is true, but 575 what is stated in Ext.
P 12 is that a Factory Inspector accompanied by his friend visited the factory of the appellant and demanded a bribe.
Now, the appellant in his evidence as DW 1 has stated that complainant Rajendra Dutt did come to his house on November 22, 1974, around 4.30 p.m.
Appellant further proceeds to say that Rajendra Dutt had some grievance against a clerk Singhal and appellant insisted upon giving a written complaint at the time of the visit of Rajendra Dutt.
If Rajendra Dutt as is now contended wanted to falsely implicate the accused there is no reason why he would not mention the name of the appellant in Ext.
On the contrary the absence of the name of the appellant in Ext.
P 12 would indicate that probably the appellant had visited the factory of Rajendra Dutt after a long time and that is what transpires from Ext.
P 12 that the visit of the appellant was after a year and half.
It is reasonable to infer that Rajendra Dutt did not know the name of the appellant but knew him by the designation of his office as Factory Inspector.
Therefore, the absence of name of Kishan Chand Mangal in Ext.
P 12 is hardly of any significance.
It was next contended that once Rajendra Dutt is not available for evidence there is no evidence as to the demand of bribe on November 20, 1974, and it is not open to the Court to spell out the demand from the contents of Ext.
It is undoubtedly true that Rajendra Dutt was dead before the commencement of trial.
It is equally true that the F.I.R. lodged by him on November 22, 1974, cannot be used as substantive evidence nor the contents of the report can be said to furnish testimony against the appellant.
Such an F.I.R. would not be covered by any of the clauses of sections 32 and 33 of the Evidence Act and would not be admissible as substantive evidence.
The question still remains whether there is any evidence of demand of bribe on November 20, 1974, in this case.
A fact may be proved either by direct testimony or by circumstantial evidence If appellant did not visit the Factory of Rajendra Dutt on November 20, 1974, and made no overtures demanding the bribe, on what rational hypothesis can one explain the visit of Rajendra Dutt to the office of Dy.
SP, ACD on November 22, 1974, his producing currency notes worth Rs. 150; a superior officer like the Dy SP, ACD, making all arrangements for the trap and the raiding party going to the house of the accused on November 22, 1974.
The visit of Rajendra Dutt soon followed by the raiding party at the house of the accused on November 22, 1974, is admitted.
Coupled with this, the fact that Keshar Mal, P.W. 2 in his evidence stated that after Rajendra Dutt entered the room in which appellant was sitting, Rajendra Dutt on 576 entering the room asked the appellant, 'Hallo, how do you do '.
He further stated that the appellant replied, 'I am sick and suffering from cold '.
He deposed that thereafter the appellant asked, 'Have you brought the money ', whereupon complainant Rajendra Dutt replied, Yes, I have brought the money '.
He further stated that thereafter Rajendra Dutt took out the amount of currency notes from his diary and gave the same to the appellant who took the amount and kept it under the pillow on the cot.
If there was no prior demand the subsequent events remain unexplained as also the demand as deposed to by P.W. 2 Keshar Mal.
But Mr. Anthony urged that this part of the evidence of Keshar Mal cannot be accepted because he has not stated this fact in his statement recorded in the course of investigation.
Simultaneously it was pointed out that the other motbir Ram Babu is totally silent in his evidence about this conversation between the appellant and the complainant.
Undoubtedly, the omission in the police statement of Keshar Mal and non mentioning all these facts by the co motbir would raise some doubt in the mind of the court about this conversation but as pointed out earlier there are tell tale circumstances which do indicate that there must have been a demand and, therefore, these circumstances as herein before set out will render support to the statement of Keshar Mal that the demand at the time of visit of Rajendra Dutt must be pursuant to earlier demand by the appellant.
Therefore, it is not proper to say that there is no evidence of the demand of bribe as on November 20, 1974.
It was next contended that if a bribe is demanded and agreed to be paid and if the complainant was contemplating not to pay the bribe but was thinking of initiating action against the officer demanding the bribe, obviously for the success of the trap to be arranged the time and place of meeting would be arranged and if it be so it would be mentioned in the F.I.R. It was said that the very absence of it would show that there was neither a demand of bribe nor any action was contemplated on November 20, 1974, as is now sought to be made out and, therefore, the court should not accept any evidence with regard to the trap.
In view of the admission of the appellant in his evidence that Rajendra Dutt followed by a raiding party came to his house also used as residence cum office around 4.30 p.m. on November 22, 1974, omission to mention about the time and place of future meeting in the F.I.R. Ext.
P 12 loses all significance.
It is equally possible that on the very day when the appellant visited the factory of Rajendra Dutt and demanded bribe, Rajendra Dutt may 577 not have immediately planned to rush to the Anti Corruption Department.
He had declined to give the bribe.
In his view his factory was not covered by the Factories Act.
These are the averments in Ext.
They are not being relied upon as substantive evidence but are used to explain the conduct of Rajendra Dutt which has evidentiary value.
If Rajendra Dutt did not negotiate giving the bribe and did not agree to give the bribe though the appellant persisted in the demand and threatened to involve him in court cases the question of any arrangement for any time and place for giving the bribe does not arise and obviously it could not have found its place in the F.I.R. Such things find mention in a F.I.R. only when the victim agrees to grease the palms of the officer.
Absence in such a situation of such averments in Ext.
P 12 in this case is both natural and obvious.
The next contention is that once Rajendra Dutt is not available to give evidence not only of the first demand but also the payment of bribe pursuant to the demand, the evidence of two motbirs assumes considerable importance.
It was urged that both the motbirs are some petty clerks and it would be both unwise and dangerous to place implicit reliance on their testimony to convict the Government servant.
Factually it is not correct to say that both the motbirs are petty clerks.
Ram Babu was serving as a clerk in the Central Bank of India and Keshar Mal was serving as a teacher in Middle School at the relevant time.
It is unfortunate that thirty five years after independence and in this age of common man, there is still not the eclipse of the high brow.
Sanctity of word made dependent upon the office held or wealth acquired is a nauseating phenomenon.
Truth is neither the monopoly nor the preserve of the affluent or of highly placed persons.
In a country where renunciation is worshipped and the grandeur and wild display of wealth frowned upon, it would be the travesty of truth if persons coming from humble origin and belonging to officewise, wealthwise lower strata of society are to be disbelieved or rejected as unworthy of belief solely on the ground of their humble position in society.
The converse unfortunately appears to be true.
The submission was sought to be buttressed by reference to Khairati Lal vs The State(1).
A learned single judge of the High Court rejected the testimony in that case of P.W. 2 Brij Nandan and P.W. 3 Krishan Kumar observing that they are petty clerks and cannot be styled as independent witnesses.
We have moved far away in seventeen years and this 578 approach does not commend to us.
We say no more.
Therefore, without further discussing this aspect, we are utterly disinclined to reject the testimony of the two motbirs accepted as wholly reliable by the learned Special Judge and the High Court on the sole ground that they are petty clerks as if that by itself is sufficient to reject their testimony.
That is a wholly irrelevant consideration.
As a second string to the bow it was urged that Ram Babu was serving at the relevant time as a Clerk in the Central Bank of India and Keshar Mal was a teacher in the middle school at Ajmer and both of them were, therefore, by virtue of their service, likely to be under the police influence.
It is difficult to appreciate this contention.
Undoubtedly Ram Babu was a Clerk in a nationalised bank and it may be that officers of Anti Corruption Department may have jurisdiction to investigate lapses on the part of clerks in nationalised banks.
It is not clear whether Keshar Mal who was serving in a Middle School was a Government employee or the school itself was a Government School.
It may be that the school may be receiving grant but if all institutions which receive grant from Government and are, therefore, styled as Government Departments, and have to be treated under the police influence then the net will have to be spread so wide not to exclude any one as independent of police influence.
We find no justification in the submission that the two motbirs were persons not likely to be independent of police influence.
Both of them have been accepted as independent witnesses and they do satisfy the test of witnesses independent of police influence.
Reference in this connection was made to Raghbir Singh vs State of Punjab(1), wherein this Court adversely commented upon selecting one Makhan, a sweeper in the whole time employment of police, as a witness in a trap case observing that the Anti Corruption Department should insist on observing the safeguard of selecting independent persons as witnesses as scrupulously as possible for the protection of the public servants against whom a trap may have to be laid.
Makhan, a sweeper in the whole time employment of police can obviously not be said to be independent of police influence but how does he compare with a clerk in a nationalised bank and a teacher in a middle school ? It, therefore, cannot be said that the two motbirs could not be styled as independent witnesses.
In passing it was submitted that Rajendra Dutt and Ram Babu must have intimately known each other because Rajendra Dutt had an account in the same branch in which Ram Babu was working as 579 clerk.
If a Bank Clerk is supposed to be intimately connected with each account holder in the bank, banking service would receive encomiums from the society.
But it is difficult to accept the submission that on this account Ram Babu could not be said to be independent witness and let it be recalled that by the time Ram Babu came to give evidence Rajendra Dutt was already dead.
The next contention is that even if Ram Babu and Keshar Mal are independent witnesses there are certain inherent infirmities in their evidence which would render their evidence untrustworthy of belief.
Before we examine this submission in detail let it be reiterated that the learned special judge who tried the case and had seen both these witnesses giving evidence has observed that P.W. 1 Ram Babu and P.W. 2 Keshar Mal are independent witnesses and there is nothing in their testimony which may induce any distrust about the facts stated by them and their evidence was relied upon.
The learned judge of the High Court observed that both the witnesses are independent witnesses and there is no reason why their evidence should not be relied upon.
It is now time to briefly refer to some of the omissions and contradictions brought to our notice with a view to persuading us to reject the testimony of both these witnesses.
It was pointed out that according to Ram Babu both he and Keshar Mal told the Dy SP that the currency notes were under the pillow while according to Keshar Mal it was Ram Babu who pointed out that the currency notes were under the pillow.
We find no contradiction in this statement because if plural used by Ram Babu was to be relied upon as a contradiction, cross examination ought to have been directed on this point.
It is necessary to point out that the cross examination of both the witnesses is scrappy, jumpy and not pursuant to any set theory of defence.
It is worthwhile to note that there is not the slightest challenge to the statement of both these witnesses that while waiting in the lobby outside the room both of them saw Rajendra Dutt giving marked currency notes to the appellant and appellant accepting the same and keeping them underneath the pillow.
It was also urged that both the witnesses in their respective statements in the course of investigation have not referred that they pointed out that the currency notes were kept under the pillow.
A further omission was pointed out that while Mahavir Prasad has stated that accused started quarrelling with him which necessitated summoning additional police help, both the witnesses while referring to the 580 quarrel picked up by the appellant so as to support the evidence of Mahavir Prasad have failed to refer to this aspect in their statements in the course investigation.
These are omissions of trivial details and have hardly any bearing on the main part of the prosecution case.
Along with this the earlier omission in the statement of Keshar Mal already discussed was reiterated.
In our opinion the so called inner variations between the evidence of these two witnesses and omissions of trivial details would not cause any dent in the testimony of these two witnesses.
Mr. Anthony after referring to Darshan Lal vs Delhi Administration(1), urged that if Mahavir Prasad took search of the appellant for recovering the bribe it would show that neither Ram Babu nor Keshar Mal had seen appellant keeping marked currency notes under the pillow.
Such an inference cannot be drawn.
Ordinarily the police officer would start searching the person of appellant and while he was doing that act, he was told where the currency notes were kept by the appellant.
Therefore, no such inference is permissible.
It was lastly urged that the court should not be influenced by the fact that when the hands of the appellant were dipped in a solution of sodium carbonate it turned pink which would affirmatively show the presence of phenolphthalein powder on the tips of fingers of the hands of the appellant.
The fact remains that the solution did turn pink when the hands of the appellant were dipped in it.
The explanation of the appellant is that both his hands were caught by the members of the raiding party and it is possible that the members of the raiding party whose hands must have already been soiled with the phenolphthalein powder when the arrangements were being made for laying the trap they must have transmitted the same to the hands of the accused.
This contention stands belied by the evidence on record.
Mahavir Prasad has deposed that he asked one Ganga Singh to demonstrate the phenolphthalein powder test.
After that he was directed to wash his hands.
No other member of the raiding party touched the phenolphthalein powder at the time of demonstration.
Ganga Singh was a member of the raiding party but when the hands of the accused were sought to be dipped in the solution this task was assigned to SI Satya Narain.
Undoubtedly there is nothing to show that his hands were soiled with phenolphthalein powder.
The hands of Rajendra Dutt must have been soiled with 581 phenalphthalein powder because he took out the currency notes from his diary and passed them on to the appellant.
But it is not suggested that Rajendra Dutt caught the hands of the appellant.
Therefore, it is not possible to accept the submission that when the hands of the appellant were caught in the ensuing quarrel between him and the Dy SP Mahavir Prasad, phenolphthalein powder must have been transmitted by persons holding the hands of the appellant.
This tell tale circumstance would lend ample independent corroboration if there be any need to the evidence of Ram Babu and Keshar Mal that they saw Rajendra Dutt giving marked currency notes to the appellant and the appellant accepting the same and putting them underneath the pillow.
Mr. Anthony urged that there are certain tell tale circumstances in the case which would render the defence plausible.
It was urged that the appellant did not disclose any guilty syndrome when the raiding party entered his room and at the first question he denied having accepted any bribe from Rajendra Dutt.
How would these two circumstances be sufficient to reject the otherwise reliable testimony ? A person with a strong will would not be upset and may remain cool and collected.
The appellant did pick up a quarrel with the Dy SP.
Why ? His suggestion that he insisted on two independent witnesses being kept present appears to be an afterthought.
The fact that the appellant picked up a quarrel is borne out from the evidence of the persons present there and by the action of the Dy SP in summoning additional police help.
Therefore, we find no circumstances which would impinge upon the prosecution case.
We read the entire evidence of two motbirs Ram Babu and Keshar Mal, evidence of Dy SP Mahavir Prasad, Ext.
P 12, the F.I.R., and we are in agreement with the High Court that the case has been proved beyond a shadow of reasonable doubt.
The evidence of appellant himself does not raise a plausible defence and has been rightly negatived.
Mr. Anthony further urged that the appellant did not demand bribe because there is no such evidence and that even if Rajendra Dutt appears to have given some currency notes the appellant was an unwilling victim and the court must frown upon such attempts of the police to make government servants commit offence.
He relied 582 upon the oft quoted passage in Brannan vs Peek(1).
In that case the finding was that when the second time the police constable attempted to give a bet the accused showed his reluctance to accept the same.
That was also the finding of the justices.
The Court frowned upon the police officers in the absence of an Act of Parliament going to the place of the accused so as to induce him to commit an offence.
We fail to see how this observation has any relevance in the facts of this case.
Once the suggestion that there was a demand of bribe is accepted the appellant could not be said to be an unwilling victim nor a fence sitter who was induced to fall a victim to the trap.
Lastly it was urged that the court would not be justifiedni raising a presumption under section 4 (1) of the Prevention of Corruption Act, 1947.
In the facts of this case and in the absence of presumption even if Rajendra Dutt gave some money to the appellant that by itself would not establish the offence and the case must fail.
Reliance was placed on Bansi Lal Yadav vs State of Bihar(2).
In that case the defence of the accused was that currency notes were thrust in his pocket.
Taking cue from this statement, the court held that the acceptance of an amount other than legal remuneration having been admitted the presumption would arise under section 4(1) and the burden would shift to the accused.
It is in this context that this court held that where the accused says that involuntarily the amount was thrust in his pocket he could not be said to have accepted or obtained for himself any gratification other than legal remuneration which alone permits the presumption to be raised.
Facts in this case being a demand and voluntarily acceptance, the presumption would squarely arise and has been rightly raised.
Reliance was also placed on the decision of this Court in Sultan Singh vs State of Rajasthan(3).
In that case the explanation of the appellant was that Rs. 100 was paid to him towards the arrears of revenue and in the absence of reliable evidence to the contrary the explanation was held acceptable.
This is a decision on the facts of that case and would be hardly of any assistance in dealing with the points raised in this case.
583 Therefore, the charge is brought home to the accused and he has been rightly convicted and the sentence awarded being the minimum, no case is made out for interfering with the same.
Accordingly this appeal fails and is dismissed.
The bail bond of the appellant is cancelled and he must surrender to serve out the sentence.
H.L.C. Appeal dismissed.

summary:
The appellant, a Factory Inspector, visited the complainant 's factory and demanded an illegal gratification of Rs. 150/ on the threat of entangling him in some legal proceedings.
The complainant, who was not inclined to give the bribe, made a written complaint to the Deputy Superintendent of Police, Anti Corruption Department (Dy SP) requesting for suitable action.
A trap was arranged by smearing 15 currency notes of the denomination of Rs. 10/ each with phenolphthalein powder and, on the direction of the Dy SP, two motbirs were requested to accompany the raiding party and to watch what happens.
The motbirs went along with the complainant to the residence of the appellant and witnessed the acceptance of the money given to him by the complainant, the subsequent search for the recovery of the currency notes from the appellant, the dipping of his hands in sodium carbonate solution and the consequent change in the colour of the hands into pink.
By the time the case came up for trial, the complainant was dead.
In the absence of the evidence of the complainant, the trial Judge noted that the first demand of the bribe at the factory of the complainant had not been proved.
He, however, held that the evidence of the two motbirs was reliable and was amply corroborated by the recovery of the currency notes as well as the presence of phenolphthalein powder on the hands of the appellant.
The trial Judge convicted and sentenced the appellant under section 161, I.P.C. and section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947.
The High Court which examined the evidence of the motbirs agreed with the findings recorded by the trial Court and dismissed the appeal filed by the appellant.
One of the contentions urged on behalf of the appellant was that once the complainant was not available to give evidence not only of the first demand but also on the payment of bribe pursuant to the demand, the evidence of the two motbirs had assumed considerable importance and it was unwise and dangerous to place implicit reliance on their testimony to convict the appellant 570 as (i) both the motbirs were petty clerks and (ii) by virtue of their service, they were likely to be under police influence.
Dismissing the appeal, ^ HELD: Truth is neither the monopoly nor the preserve of the affluent or of highly placed persons.
In a country where renunciation is worshipped and the grandeur and wild display of wealth frowned upon, it would be the travesty of truth if persons coming from humble origin and belonging to office wise, wealth wise lower strata of society are to be disbelieved or rejected as unworthy of belief solely on the ground of their humble position in society.
[577 F] Khairati Lal vs The State, (1965) 1 Delhi Law Times, 362 overruled.
In the instant case it is factually not correct to say that both the motbirs are petty clerks: one was serving as a clerk in a nationalised bank and the other was a teacher in a middle school.
The testimony of the motbirs which had been accepted as wholly reliable by the trial Judge and the High Court cannot be rejected on the sole ground that they are petty clerks.
[577 E: 578 A B] It may be that officers of Anti Corruption Department have jurisdiction to investigate lapses on the part of clerks in nationalised banks.
It is not clear whether the motbir who was a teacher was a government employee or the school itself was a government school.
It may be that the school was receiving grant but if all institutions which receive grant from government are styled as government departments and have to be treated as falling under the police influence then the net will have to be spread so wide as not to exclude anyone as independent of police influence.
There is no justification in the submission that the two motbirs were persons not likely to be independent of police influence.
[578 D E] Raghbir Singh vs State of Punjab, AIR 1976 S.C. 91, distinguished.