judgement:
: Criminal Appeal No. 3 18 of 1989.
From the Judgment and Order dated 15.6.88 of the Kerala High Court in Original Petition No. 3299 of 1988.
R. Sasiprabhu and P.K. Manohar for the Appellant.
B. Dutta, Additional Solicitor General, P. Parmeshwaran, Pramod Swarup and T.T. Kunhikannan for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
This appeal under Article 136 of the Constitution of India is preferred by the appellant, Abdul Rahman questioning the validity and correctness of the order of detention passed by the first Respondent on 7.10.1987, in exercise of the powers conferred by section 3(1)(iii) and 3(1)(iv) of the Conservation of Foreign Ex change and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974) (hereinafter referred to as the 'Act ') whereby detaining the appellant 's brother Sri T.A. Sirajudeen @ Siraj (the detenu herein) with a view to pre venting the detenu from engaging in transporting or conceal ing or keeping smuggled gold or dealing in smuggled gold otherwise than by engaging in transporting or concealing or keeping smuggled gold.
Though the impugned order was passed on 7.10.1987, the detenu 949 was arrested on 18.1.1988 and detained in the Central pris on, Trivandrum from 19.1.1988 onwards.
The detenu was fur nished with copies of the grounds of detention and other connected material documents on 21.1.1988.
The detenu made a representation to the third Respondent praying for revoca tion of the detention order on 25.1.1988 which was rejected on 11.4.1988.
Meanwhile on 11.2.1988 a declaration by the third Respondent under Section 9(1) of the Act was made, whereby the detenu was ordered to be detained for a contin ued detention for a further period of 6 months over one year.
The first Respondent made a reference under section 8 of the Act on 5.5. 1988 to the Advisory Board which has reported that there is in its opinion sufficient cause for the detention of the detenu.
The material facts which neces sitated the passing of the detention order can be briefly stated thus: On 30.11.1986, Superintendent of Central Excise, Manjeri Range and party searched the permanent residence of the detenu in his presence which did not result in the seizure of any contraband goods or the recovery of any incriminating documents.
But on questioning by the officer, the detenu confessed that he had buried eleven gold biscuits in the backyard of his house.
He dug up the spot and produced the relavent gold biscuits which were kept concealed under the ground.
Each of the gold biscuits was found wrapped in black carbon paper bearing foreign markings and weighing 10 tolas each with the purity of 24 carats.
The total weight of the eleven gold biscuits was 1282.600 gms.
, the market value of which as on that date was Rs.3,14,237.
The contraband goods were seized under a Mahazar.
On 30.11.1986 a statement was recorded from the detenu by the Superintendent of the Cen tral Excise under section 108 of the Customs Act in which the detenu had given a detailed note of his involvement in the smuggling activities.
On 9.12.1986 also the Superintend ent of Central Excise searched the residence of the detenu in the reasonable belief that there was concealment of more smuggled gold in the said house.
During this search, the detenu pointed out to the Superintendent one packet which had been placed in the thatched roofing of his house.
The Superintendent took out the packet and it was found contain ing four gold ingots bearing foreign markings weighing 466.400 gms.
with 24 carat purity, all to the value of Rs. 1,14,268.
The detaining authority taking into consideration of the seizure effected on two occasions and the statement of the detenu admitting his involvement in the prejudicial activities mentioned in the grounds of detention reached its subjective satisfaction of the necessity of passing the impugned order and passed the same on 7.10.1987.
The appel lant filed a Writ Petition under Article 950 226 of the Constitution of India for quashing the impugned order of detention, but was not successful.
Hence this appeal.
Of the several grounds urged in the Special Leave Peti tion, the learned counsel appearing on behalf of the appel lant stressed only the following two contentions seeking to set aside the order of detention.
(1) As there is no proximity in time to provide a rational nexus between the alleged prejudicial activity, that is the seizure of the gold biscuits on 30.11.1986 and the pass ing of the impugned order of detention after 11 months i.e. on 7.10.1987 and as there is no reasonable and satisfactory explanation given by the first Respondent for this undue and unreasonable delay, the order is liable to be quashed on the ground that the credible chain between the grounds of the alleged criminal activities and the purpose of detention is snapped.
Further the unreasonable and unex plained delay between the date of the order of detention on 7.10.87 and the date of arrest of the detenu after a lapse of 3 months on 18.1.1988 throws considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to an infer ence that there was no real and genuine sub jective satisfaction as regards the necessity to detain the detenu with a view to preventing him from acting in prejudicial manner.
(2) The representation submitted by the detenu to the third Respondent on 25.1.1988 challenging the impugned order clamped upon him had been disposed of by a delay of 72 days i.e. on 11.4.1988 and this long and avoid able delay vitiates the order of detention as being violative of Article 22(5) of the Con stitution of India.
We shall now deal with the first contention which is referred under ground Nos.
II & III of the Grounds in the Special Leave Petition which read thus: "For that the High Court ought to have seen that the petitioner was detained on the basis of a alleged solitary incident occurred on 30.11.1986 and the detention order was passed after lapse of 11 months, i.e. on 7.10.1987, and the petitioner was arrested and detained on 19.1.1988." "For that the High Court ought to have seen that there was 951 no proximity between the alleged incident and subsequent detention.
The time factor has not been considered by the detaining authority and he has mechanically passed the detention order without paying any attention to the loose grounds and quick sands in the reports of the sponsoring officer.
" The above two contentions are sought to be answered by the first Respondent in his counter stating that the inves tigating officer had to question a number of persons and to conduct extensive search of various premises in different places in connection with the information gathered during interrogation and the Superintendent issued summons to the brothers of the detenu, namely, Haneefa and Abdul Rahman for appearance on 10.3.87 and 3.3.87 respectively, but Abdul Rahman was absconding and that on 10.2.87, the statement of C.K. Madhavan referred to in the statement of the detenu was recorded and that on 18.5.1987 show cause notices were issued to persons connected with this case and immediately after completion of the investigation the Customs authori ties sponsored the proposal for detention of the detenu by their letter dated 26.8.1987 and that the proposal was screened by the Screening Committee on 11.9.1987 and there after the detention order was passed on 7.10.1987.
Coming to the delay in securing the detenu by arrest the explanation is given as follows: "The detention order was forwarded to the Malappuram Superintendent of Police for its execution by letter dated 9.10.
The Police executed the order on 18.1.
From the above facts it is clear that there is no delay in passing or executing the order of detention as alleged in the petition for Special Leave to Appeal.
" There is no denying the fact that the impugned order has been passed after lapse of 11 months from the date of sei zure of the eleven gold biscuits from the back courtyard of the house of the detenu.
As repeatedly pointed out by this court that there is no hard and fast rule that merely be cause there is a time lag between the offending acts and the date of order of detention, the causal link must be taken to be snapped and the satisfaction reached by the detaining authority should be regarded as unreal, but it all depends upon the facts and circumstances of each case and the nature of the explanation offered by the detaining authority for the delay that had occurred in passing the 952 order.
There is a catena of decisions on this point, but we feel that it is not necessary to recapitulate all those decisions except a salient few.
This court in Golam Hussain alias Garna vs Commnr.
of Police of Calcutta & Ors.
, ; wherein there was a time lag of 6 months between the incident and the date of order of detention while an swering a similar contention, laid down the ratio of proxim ity as follows: "No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because long ago the detenu had done something evil.
To rule other wise is to sanction a simulacrum of a statuto ry requirement.
But no mechanical test by counting the months of the interval is sound.
It all depends on the nature of the acts relied on, grave and determined or less seri ous and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation.
We have to inves tigate whether the causal connection has been broken in the circumstances of each case.
Gora vs State of West Bengal, ; has held thus: There is, therefore, no hard and fast rule that merely because there is a time lag of about six months between the 'offending acts ' and the date of the order of detention, the causal link must be taken to be broken and the satisfaction claimed to have been arrived at by the District Magistrate must be regarded as sham or unreal.
Whether the acts of the detenu forming the basis for arriving at a subjective satisfaction are too remote in point of time to induce any reasonable person to reach such subjective satisfaction must depend on the facts and circumstances of each case.
The test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the 'offending acts ' and the order of deten tion.
It is a subsidiary test evolved by the court for the purpose of determining the main question whether the past activities of the detenu is such that from it a reasonable prognosis can be made as to the future conduct of the detenu and its utility, therefore, lies only in so far as it subserves that purpose and it cannot be allowed to dominate or drawn it.
The prejudicial act of the detenu may in a given case be of such a character as to sug gest that it is a part of an organised opera tion of a complex of agencies collaborating 953 to clandestinely and secretly carry on such activities and in such a case the detaining authority may reasonably feel satisfied that the prejudicial act of the detenu which has come to light cannot be a solitary or isolated act, but must be part of a course of conduct of such or similar activities clandestinely or secretly carried on by the detenu and it is, therefore, necessary to detain him with a view to preventing him from indulging in such activities in the future.
" In Hemlata Kantilal Shah vs State of Maharashtra ; , this Court held: "Delay ipso facto in passing an order of detention is not fatal to the detention of a person, for, in certain cases delay may be unavoidable and reasonable.
What is required by law is that the delay must be satisfactori ly examined by the detaining authority.
" See also SK Serajul vs State of West Bengal, ; Rekhaben Virendra Karadia vs State of Gujarat & Ors., ; ; Harnek Singh vs State of Punjab, ; Shiv Ratan Makin vs Union of India and Others, ; Smt.
K. Aruna Kumari vs Government of Andhra Pradesh and Ors., ; and Rajendra Kumar Natvarlal Shah vs State of Gujarat and Others, ; In a recent decision in Yogendra Murari vs State of U.P. and Others ; , this Court has reiterated the earlier view consistently taken by this Court observing: ". . it is not right to assume that an order of detention has to be mechanically struck down if passed after some delay . .
It is necessary to con sider the circumstances in each individual case to find out whether the delay has been satisfactorily explained or not." The conspectus of the above decisions can be summarised thus: The question whether the prejudicial activities of a person necessitating to pass an order of detention is proxi mate to the time when the order is made or the live link between the prejudicial activities and the purpose of deten tion is snapped depends on the facts and circumstances of each case.
No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive 954 guidelines can be laid down in that behalf.
It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention.
However, when there is undue and long delay between the prejudicial activities and the pass ing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the causal connection has been broken in the circumstances of each case.
Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legiti mate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detain ing the detenu with a view to preventing him from acting in a prejudicial manner.
In the light of the above proposition of law, we shall now examine the first contention which has been raised for the first time before this Court.
From the reading of the counter affidavit filed on behalf of the first Respondent, it is seen that the detaining authority has attempted to explain the laxity that has occasioned in passing the im pugned order, but miserably failed in explaining the delay of three months in securing the arrest of the detenu from the date of the passing of the order, and keeps stunned silence on that score.
The learned counsel appearing for the first respondent when queried by this Court whether he could give any reason for this undue delay in arresting the detenu on 18.1.1988 in pursuance of the impugned order of detention made on 7.10.1987, he has frankly admitted that he could not do so rightly so in our view in the absence of any expla nation in the counter affidavit.
The Superintendent of Police, Malapurram to whom the detention order was forwarded for execution has not filed any supporting affidavit ex plaining the delay in securing the arrest of the detenu.
Under these circumstances, we hold that leaving apart the question of delay in passing the order of detention from the date of the seizure of the gold, the fact remains that the detaining authority has failed to explain the long delay in securing the arrest of the detenu after three months from the date of the passing of the detention order and this non explanation in our view throws a considerable doubt on the genuineness of the subjective satisfaction of the de taining authority 955 vitiating the validity of the order of detention.
The next contention stressed by the learned counsel for the appellant is with regard to the delay of 72 days in the disposal of the representation made by the appellant to the third respondent on 25.1.
This contention is raised in ground Nos.
VIII and IX of the Grounds in the Special Leave Petition.
This is resisted by the third respondent in para graph 8 of his counter stating that a representation dated 2.2.1988 was received in the COFEPOSA Section of Ministry of Finance on 16.2.1988 with a letter dated 5.2.1988 from the Government of Kerala; that as certain information was not available with the Central Government, the Collector of Customs, was asked to get a copy of the representation from the State Government and to send his comments; that Collec tor of Customs, informed the Central Government by a telex message dated 1.3.1988 which was received in the COFEPOSA Section on 8.3.1988 informing that the representation was not available with the Home Department; that thereafter a copy of the representation was forwarded to the Collector of Customs by post on 8.3.1988; that the comments of the Col lector were received back on 28.3.1988; that then the repre sentation along with the comments were placed before the Joint Secretary, COFEPOSA Section on 30.3.88, who forwarded the same to the Minister of State for Revenue on the same day and on 4.4.88 the Minister of State forwarded his com ments to the Finance Minister who considered and rejected the representation on 8.4.88.
According to the third Re spondent, the representation was considered expeditiously and as such there is no violation of Article 22(5) of the Constitution of India.
The learned counsel for the appellant has explained that the representation was submitted originally on 25.1.1988, but was got back and resubmitted on 2.2.1988.
According to him, it is surprising that the said representation was received by the third respondent only on 16.2.1988 after a considerable delay of two weeks and thenceforth there was a considerable delay from 16.2.88 to 28.3.88 in receiving the comments of the Collector of Customs, and again there was a delay of 7 days in forwarding the representation to the Minister of State for Revenue with the comments of the Joint Secretary, COFEPOSA Section.
The long interval in receipt of the representation and the comments of the Collector of Customs, Cochin indicate the casual and indifferent attitude displayed by the authorities concerned dealing with the representation.
In our opinion, the manner in which the representation has been 956 dealt with reveals a sorry state of affair in the matter of consideration of the representation made by the detenu.
Further we fail to understand why such a long delay from 16.2.88 to 28.3.88 had occasioned in getting the comments from the Collector of Customs.
The only futile explanation now offered by the third respondent is that this delay had occasioned because the Collector of Customs was not able to get a copy of the representation from the Home Department, Kerala and thereafter the Collector got a copy of the repre sentation on being forwarded by the third respondent on 8.3. 1988.
Even then there is a delay of 20 days in getting the comments of the Collector and that delay is not at all explained.
This Court in Rama Dhondu Borade vs Shri V.K. Saraf Commissioner of Police & Ors., [1989] I Scale Vol.
4 22 after referring to various decisions, has observed thus: "The detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India.
Corre spondingly, there is a constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the detention order clamped upon him and requesting for his release, to consider the said representation with reasona ble dispatch and to dispose the same as expe ditiously as possible.
This constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach, it would amount to negation of the constitutional obligation rendering the con tinued detention constitutionally impermissi ble and illegal, since such a breach would defeat the very concept of liberty the highly cherished right which is enshrined in Article 21 of the Constitution." " . .
What is reasonable dispatch de pends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard.
However, in case the gap between the receipt of the representation and its consideration by the authority is so unreasonably long and the explanation offered by the authority is so unsatisfactory, such delay could vitiate the order of detention.
" Bearing in mind the above principle when we approach the facts of the present case, we are of the firm view that the representation of 957 the detenu has not been given prompt and expeditious consid eration, and was allowed to lie without being properly attended to.
The explanation now offered by the third re spondent that the delay has occurred in seeking the comments of the Collector of Customs etc.
is not a convincing and acceptable explanation.
In our view the delay in 72 days in the absence of satisfactory explanation is too long a period for ignoring the indolence on the part of the concerned authority.
Hence we hold that the unexplained delay in disposal of the representation of the detenu is violative of Article 22(5) of the Constitution of India, rendering the order of detention invalid.
For all the above mentioned reasons, we allow this criminal appeal by setting aside the judgment of the High Court, quash the impugned order of detention and direct the detenu to set at liberty forthwith.
Y. Lal Appeal allowed.

summary:
This appeal has been filed by the brother of the detenu T.A. Sirajudeen who was detained pursuant to an order of detention passed by the first respondent under Section 3(1)(iii) and 3(1)(iv) of the Conservation of Foreign Ex change and Smuggling Activities Act, 1974 with a view to preventing the said detenu to take part in the smuggling activities of Gold.
The circumstances under which the deten tion order in question was passed may now be stated.
On 30.11.1986, Superintendent of Central Excise, Manjeri Range searched the residential premises of the detenu but did not discover any contraband goods.
However on question ing the detenu confessed that he had burried eleven gold biscuits in the back yard, which were recovered after dig ging the ground and the statement of the detenu was recorded under Section 108 of the Customs Act, that very day.
On 9.12.1986 again the Authorities concerned searched the residence of the detenu in the belief that there was concealment of more gold.
During the search the detenu pointed out to the Superintendent one packet which had been placed in the thatched roofing of the house.
The detaining authority taking into consideration the fact of seizure effected on two occasions and the statement of the detenu admitting his involvement in the prejudicial activities mentioned in the grounds of detention reached subjective satisfaction and passed the impugned order of detention on 7.10.87.
The detenu was arrested on 18.1.1988 and detained in Central Prison, Trivandrum from 19.1.1988 onwards Grounds of detention and other relevant material were furnished to the detenu on 21.1.1988.
The detenu made representation for revocation of the detention order on 25.1.1988 which was rejected 946 on 11.4.1988.
The first respondent made a reference under Section 8 of the Act on 5.5.88 to the Advisory Board which reported that in its opinion sufficient cause existed for the detention of the detenu.
The appellant challenged the detention of his brother in the High Court by means of Writ Petition but, having failed, he filed this appeal by special leave.
The appellant primarily urged two contentions before this Court.
It was urged that there was no proximity in time to provide a rational nexus between the alleged prejudicial activity and the passing of the impugned order of detention after 11 months i.e. on 7.10.87 and as there was no reasona ble and satisfactory explanation for the said long delay, the detention order is liable to be quashed on the ground that the credible chain between the grounds of the alleged criminal activities and the purpose of detention stood snapped.
The delay throws doubt on the genuineness of the subjective satisfaction arrived at by the detaining authori ty.
Secondly it was contended that the representation sub mitted by the detenu on 25.1.88 challenging the impugned order clamped on him had been disposed of by a delay of 72 days i.e. on 11.4.88 and this long and avoidable delay vitiates the detention order being violative of article 22(5) of the Constitution.
The first respondent in the counter affidavit explained the delay and attributed the same to the extensive search of various premises in different places and examination of persons apart from departmental delays.
It is only after completing the necessary investigation customs authorities sponsored the case for detention of the detenu.
Allowing the appeal, this Court, HELD: There is no denying the fact that the impugned order has been passed after lapse of 11 months from the date of seizure of the eleven gold biscuits from the back court yard of the house of the detenu.
The test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of deten tion.
However, when there is undue and long delay between the prejudicial activity and the passing of the detention order, the court has to scrutinise whether the detaining authority has satisfactionly examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned and further the court has to investi gate whether the causal connection has been broken in the circumstances of each case.
No hard and fast rule 947 can precisely be formulated and guidelines can be laid down in that behalf.
[951G 952A] When there is unsatisfactory and unexplained delay between the date of the order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority.
[954C] See Gora vs State of West Bengal, ; ; Hemlata Kantilal Shah vs State of Maharashtra, ; ; Golam Hussain @ Gamal vs Commr. of Police of Calcutta & Ors., ; ; sk Serajul vs State of West Bengal, ; Rekhaben Virendra Karadia vs State of Gujarat & Ors., ; ; Harnek Singh vs State of Punjab, ; ; Shiv Ratan Makin vs Union of India and Others, ; Smt.
K. Aruna Kumari vs Gov ernment of Andhra Pradesh & Ors., ; and Rajendra Kumar Natvarlal Shah vs State of Gujarat & Ors., ; The Court in the instant case, noticed from the Counter affidavit filed on behalf of the first Respondent, that the detaining authority has attempted to explain the laxity that has occasioned in passing the impugned order but miserably failed in explaining the delay of three months in securing the arrest of the detenu from the date of passing of the order and keeps stunned silence on that score.
Counsel when queried by the Court whether he could give any reason for this undue delay in arresting the detenu on 18.1.1988 in pursuance of the impugned order made on 7.10.1987, frankly admitted that he could not do so.
Under the circumstances, the Court held that leaving apart the question of delay in passing the order of detention, the fact remains that the detaining authority has failed to explain the long delay in securing the arrest of the detenu after three months of the passing of the detention order and this non explanation throws a considerable doubt on the genuineness of the sub jective satisfaction of the detaining authority vitiating the validity of the order of detention.
[954E 955A] The long interval in receipt of the representation and the comments of the Collector of Customs, Cochin, indicate the casual and indifferent attitude, displayed by the au thorities concerned dealing with the representation.
The manner in which the representation has been dealt with reveals a sorry state of affairs in the consideration of the representation made by the detenu.
[955G 956A] 948 The Court took firm view that the representation of the detenu has not been given prompt and expeditious considera tion and was allowed to lie without being properly attended to.
The delay of 72 days in the absence of satisfactory explanation is too long a period for ignoring the indolence on the part of the concerned authority.
The unexplained delay in disposal of the representation of the detenu is violative of Article 22(5) of the Constitution of India rendering the order of detention invalid.
[956H 957B] The Court set aside the judgment of the High Court, quashed the order of detention and directed that the detenu be set at liberty forthwith.
[957C] Rama Dhondu Borade vs Shri V.K. Saraf, Commissioner of Police & Ors.


judgement:
vil Appeal No. '1376 of 1977.
From the Judgment and Order dated 26.5.77 of the Punjab and Haryana High Court in Civil Revision No. 125/77.
Ashok Sen, S.C. Manchanda, Mrs. Urmila Kapoor, Ms. section Janani and Ms. Meenakshi for the Appellant.
E.C. Aggarwala, Miss Purnima Bhatt, V.K. Pandita, A.V. Paila, and Atul Sharma for the Respondents.
The Judgment of the Court was delivered by SAIKIA, J.
This appeal by special leave is from the Judgment of the High Court of Punjab and Haryana allowing the revision petition, setting aside the order of the Senior Subordinate Judge and dismissing the application of the decree holder praying for permission to deposit the balance amount of the pre emption decree.
On 21.9.1975 the Court of the Senior Subordinate Judge decreed a claim to pre emption in favour of the appellant and against the respondents subject to the deposit of the purchase money being Rs.41,082 less the amount of 'Zare Panjum ' on or before 31.12.1975 failing which his suit would stand dismissed.
The appellant by application dated 22.11.1975, annexing a treasury challan, obtained permission to deposit 4/5th of the purchase money amounting to Rs.33582 and the amount was deposited on 28.11.1975, although the last date for depositing the amount was 31.12.1975.
On 4.12.1975 he filed an execution petition for being delivered possession of the land and the possession was actually delivered on 29.1.1976.
21 It appears, on 21.1.1976 the office reported that the amount deposited fell short of the decretal amount by Rs. 100.
Thereupon two separate applications were filed by the respondents judgment debtors and the appellants decree holder.
The former in their application prayed that the latter having not complied with the condition of the decree, he having deposited Rs. 100 less, the decree was a nullity and the suit stood dismissed, and hence, the land be re stored to them.
The appellant decree holder in his applica tion prayed for condonation of the delay and for permission to deposit the balance of Rs. 100 stating that there was an inadvertent arithmetical mistake on his part as also on the part of the Court officials.
The learned Senior Subordinate Judge applying the maxim "Actus curiae neminem gravabit and relying on Jang Singh vs Brijlal & Ors., ; and holding that the mistake of the decree holder was shared by the Court, condoned the delay and allowed 10 days ' time to deposit the balance of Rs. 100, failing which the suit should stand dismissed.
The respond ents having moved in revision therefrom under section 115 CPC, the High Court by the impugned Judgment, holding that the decree holder himself filed the application annexing the challan mentioning the amount and as such there was no mistake on the part of any Court officials, and applying Labh Singh vs Hardayal & Anr., [1977] 79 Punjab Law Reporter 417, allowed the revision petition, set aside the order of the Senior Subordinate Judge and dismissed the appellant decree holder 's application for condonation and permission to deposit the balance of Rs. 100.
Hence this appeal.
Mr. A.K. Sen, the learned counsel for the appellant submits that the Senior Subordinate Judge having exercised power within his jurisdiction under section 148 CPC in extending the time to deposit the deficit amount of Rs. 100, the revisional court mis directed itself in holding that the court officials were not at fault in not pointing out the shortfall while permitting the deposit of the decretal amount; and it erred in setting aside the order extending time.
Counsel further submits that the decree holder having already obtained the warrant of possession and thereby taken actual delivery of possession, the decree was already exe cuted and the same having not been questioned, the revision petition was liable to be dismissed as infructuous.
Mr. E.C. Aggarwala, the learned counsel for the respond ent while not disputing that if power under section 148 CPC was exercised by the Senior Subordinate Judge in extending the time the order could not have been interfered with in revi sion, submits that the challan having been prepared by the decree holder himself, there was no mis 22 take on the part of any court officials in accepting short deposit, and the High Court rightly held that the appel lant 's suit stood dismissed because of non deposit of the decretal amount within time; and therefore there was no question of extension of any time for depositing the same.
The precise question to be decided in this appeal, therefore, is whether on the facts and in the circumstances of the case of preemption decree, the amount deposited within time by the decree holder having fallen short of the decretal amount by Rs. 100 owing to inadvertent arithmetical mistake, the court could extend the time to deposit that deficit amount exercising powers under section 148 CPC in view of the provision in Order XX Rule 14(1) CPC; and if so, whether the High Court erred in interfering with that order in revision under section 115 CPC.
Order XX Rule 14(1) provides: "Where the Court decrees a claim to pre emp tion in respect of a particular sale of property and the purchase money has not been paid into court, the decree shall (a) specify a day on or before which the purchase money shall be so paid, and (b) direct that on payment into court of such purchase money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase money and the costs (if any) are not so paid, the suit shall be dismissed with costs." In the instant case pre emption decree specified 31.12.1975 'as the day on or before which the purchase money was to be paid into Court.
But the exact amount to be paid was not specified; it only said Rs.41,082 "less the amount of Zare Panjum" which the parties admit to be 1/5th.
Thus only 4/5 of the amount was to be paid.
However, parties do not dispute that the amount deposited fell short of the decretal amount by Rs. 100.
From the above provision there is no doubt that where the entire purchase money payable has not been paid and there is no order from any court to justify or excuse non payment, the suit shall be dismissed 23 with costs.
This shall be done by virtue of the above provi sion.
But when the decree holder deposits into court what he believes to be the entire purchase money but due to inad vertent mistake what is deposited falls short of the decre tal amount by a small fraction thereof and the party within such time after the mistake is pointed out or realised, as would not prove wilful default or negligence on his part, pays the deficit amount into the court with its permission, should the same result follow? This Court in Naguba Appa vs Namdev, AIR 1964 SC 50, has held that mere filing of an appeal does not suspend the pre emption decree of the trial Judge and unless that decree is altered in any manner by the Court of appeal, the pre emptor is bound to comply with its directions, and has upheld the finding that the pre emption suit stood dismissed by the reason of his default in not depositing the pre emption price within the time fixed in the trial court 's decree and that the dismissal of the suit is as a result of the mandatory provisions of Order 20 Rule 14 and not by reason of any decision of the Court.
There the pre emption money was not deposited within the fixed time.
The pre emptor thereafter made an application to the Court for depositing the amount without disclosing that the time fixed had expired.
The application was allowed; but the defendant applied to the Court for disposal of the suit pointing out that the time fixed for deposit had expired.
The trial Judge held that the pre emption money not having been paid within the time fixed in the decree the suit stood dismissed.
This decision was held to be correct.
It was a case of nondeposit of the whole of the purchase money and not of any fraction thereof.
In Jang Singh vs Briflal and Ors.
, (supra) the pre emption decree on compromise was passed in favour of Jang Singh and he was directed to deposit Rs.5951 less Rs. 1000 already deposited by him, by May 1, 1958, and failing to do so punctually his suit would stand dismissed with costs.
On January 6, 1958 Jang Singh made an application to the trial court for making the deposit of the balance of the amount of the decree.
The clerk of the Court, which was also the executing Court, prepared a challan in duplicate and handed it over with the application to Jang Singh so that the amount might be deposited in the Bank.
In the challan (and in the order passed on the application, so it was alleged) Rs.4950 were mentioned instead of Rs.4951 and it was depos ited.
In May, 1958, he applied for and received an order for possession of the land and the Naib Nazir reported that the entire amount was deposited in Court.
Bohla Singh (the vendee) then 24 applied on May 25, 1958, to the Court for payment to him of the amount lying m deposit and it was reported by the Naid Nazir on that application that Jang Singh had not deposited the correct amount and the deposit was short by one rupee.
Bhola Singh applied to the Court for dismissal of Jang Singh 's suit and for recall of all the orders made in Jang Singh 's favour.
The trial court allowed that application and also ordered reversal of its earlier orders and directed that the possession of the land be restored to him.
On appeal, the District Judge, holding that Jang Singh having approached the Court with an application intending to make the deposit the Court and its clerk made a mistake by order ing him to make the deposit of an amount which was less by one rupee.
Jang Singh was excused inasmuch as the responsi bility was shared by the Court and it accordingly held that the deposit made was a sufficient compliance with the terms of the decree and accordingly allowed the appeal setting aside the trial court 's order dismissing the suit.
On appeal by Bhola Singh the High Court took the view that the decree was not complied with and that under the law the time fixed in the decree for payment of the decretal amount in pre emption case could not be extended by the Court and that the finding that the short deposit was due to the act of the Court was not supported by evidence and accordingly allowed the appeal, set aside the decision of the District Judge and restored that of the trial court.
On appeal by Jang Singh this Court found that the application whereupon the Court directed the deposit of Rs.4950 remained untraced.
However, it was quite clear that the challan was prepared under the Court 's direction and the duplicate challan prepared by the Court as well as the one presented to the Bank had been produced in the case and they showed the lesser amount.
That challan was admittedly prepared by the Execution Clerk and it was also an admitted fact that Jang Singh was an illiter ate person.
The amount was deposited promptly relying upon the Court 's Officers.
The Execution Clerk had deposed to the procedure which was usually followed and he had pointed out that first there was a report by the Ahmed about the amount in deposit and then an order was made by the Court on the application before the challan was prepared.
It was, there fore, quite clear that if there was an error the Court and its officers largely contributed to it.
This Court, ob served: "It is no doubt true that a litigant must be vigilant and take care but where a litigant goes to Court and asks for the assistance of the Court so that his obligations under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his own devices, to ensure that the correct information is fur nished.
25 If the Court in supplying the information makes a mistake the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court.
If the liti gant acts on the faith of that information the Courts cannot hold him responsible for a mistake which it itself caused.
There is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake.
This is aptly summed up in the maxim: "Actus curiae neminem gravabit." In the facts of that case it was held that an error was committed by the Court which the Court must undo and which could not be undone by shifting the blame on Jang Singh, who was expected to rely upon the Court and its officers and to act in accordance with their directions.
It was also ob served that he deposited the amount promptly and a wrong belief was induced in his mind by the action of the Court that all he had to pay was stated in the challan.
The appeal was accordingly allowed, the High Court 's order was set aside and the appellant was ordered to deposit Re.1 within one month from the date of receipt of the record in the trial court.
It should be noted that in the facts and cir cumstances of a case of non deposit of a fraction of the purchase money extension of time to deposit the balance was granted by this Court.
It cannot therefore be said that on failure to deposit a minute fraction of the amount by the fixed date owing to wrong belief induced by Court officials the suit must be taken to have stood dismissed.
No doubt this was so because of the maxim actus curiae neminem gra vabit but there is no reason why the same result should not follow on similar justifiable grounds.
While mere filing of an appeal does not suspend a pre emption decree, a stay order passed by an appellate court may suspend it in the manner ordered therein.
In Dattaraya vs Shaikh Mahboob Shaikh Ali, ; , the pre emption decree in favour of the appellant was passed with the direction to pay the consideration of Rs.5,000 within 6 months from the date of the decree and in case of default the suit was to be deemed to have been dismissed.
The decree was confirmed in respondent 's appeal to the District Court on January 28, 1955.
The amount was deposited within the time fixed, but was subsequently withdrawn by him under orders of the Court.
While dismissing the appeal, the Dis trict Court directed the appellant to re deposit the 26 sum of Rs.5,000 on or before April 30, 1955 and directed the respondent on such deposit to deliver the possession of the properties and on failure to deposit the suit should stand dismissed with costs.
During the pendency of the respond ent 's Second Appeal in the High Court the respondent prayed for stay of execution of the decree.
On March 23, 1955 the High Court passed a stay order which was received by the trial court on April 19, 1955.
The appellant deposited the purchase price on May 2, 1955, that is, 3 days after the date fixed, filing an application stating that he could not deposit this within time as he fell ill.
The respondent 's Second Appeal was dismissed on October 6, 1960 and the pre emption decree in favour of the appellant was confirmed, and he obtained an order of possession.
The respondent having applied to the Executing Court for restitution of the properties on the ground that the appellant had defaulted in depositing the purchase money by the date fixed by the lower appellate court 's decree, i.e. April 30, 1955, the appellant contended that he would get by necessary implication a fresh starting point for depositing the purchase money from the date of the High Court 's decree.
The Executing Court reject ed the claim of the respondent for restitution and this decision was affirmed by the District Court.
But the High Court in appeal took the view that there was default on the part of the appellant in depositing the amount and, there fore, the appellant 's suit stood dismissed automatically.
While allowing the appeal therefrom this Court held: "The decree framed under 0.20, r. 14 Civil Procedure Code requires reciprocal rights and obligations between the parties.
The Rule says that on payment into Court of the purchase money the defendant shall deliver possession of the property to the plaintiff.
The decree holder therefore deposits the purchase money with the expectation that in return the pos session of the property would be delivered to him.
It is therefore clear that a decree in terms of 0.20, r. 14; Civil Procedure Code imposes obligations on both sides and they are so conditioned that performance by one is conditional on performance by the other.
To put it differently, the obligations are recip rocal and are inter linked, so that they cannot be separated.
If the defendants by obtaining the stay order from the High Court relieve themselves of the obligation to deliv er possession of the properties the plaintiff decree holder must also be deemed thereby to be relieved of the necessity of depositing the money so long as the stay order continues.
We are accordingly of the opinion that the order of stay dated March 23, 27 1955 must be construed as an order staying the whole procedure of sale including delivery of possession as well as payment of price.
The effect of the stay order therefore in the present case is to enlarge the time for pay ment till the decision of the appeal.
" This Court was further of the opinion that the effect of the High Court 's order dated October 6, 1960 dismissing the second appeal was to give by necessary implication a fresh starting point for depositing the amount from the date of the High Court 's decree.
The decree of the High Court was dated October 6, 1960 and the appellant could have deposited the amount immediately after this date.
But the appellant had deposited the amount on May 2, 1955, long before the date of High Court 's decree and there was no default on the part of the appellant in fulfilling the terms of the High Court 's decree.
It was accordingly held that a decree of the High Court in second appeal should be construed in that case as affording by implication a fresh starting point to the plaintiff for making payment into the Court.
In Sulleh Singh vs Sohan Lal; , , reiterating what was held in Naguba Appa vs Narndev, (supra) and Dattaraya vs Shaikh Mahboob Shaikh Ali, (supra).
The trial court directed re spondents Sohan Lal and Nathi to deposit Rs.6,300 and Rs.5,670 respectively on or before 1st April, 1969 less 1/5th of the pre emption amount already deposited by them.
Sohan Lal 's decree was for possession by pre emption in respect of Killa Nos.
14/1, 17 and 18/1 of Rectangle 37.
The plaintiffs aggrieved by that order filed an appeal contend ing that the decree should have been passed for the whole of the land because the respondent Sohan Lal was also a tenant of Killa No. 24 of Rectangle 37 under them.
On 29th July, 1969, the Additional District Judge passed a decree for possession by pre emption in favour of respondent ' Sohan Lal in respect of Killa No. 24 of Rectangle 37 also on payment of Rs.9,100 and he was also directed to deposit this amount on or before 20th August, 1969.
The decree in favour of Nathi was maintained without change.
The appellants filed an appeal to the High Court contending that respondents did not deposit the decretal amount by 1st April, 1969 as directed by the trial court and, therefore, the suit was liable to be dismissed under Order 20 Rule 14 of the CPC and the High Court allowed the appeal against Nathi and dismissed the appeal against Sohan Lal holding that since the lower appel late Court granted Sohan Lal decree for one more Killa and directed that the amount would be Rs.9,100 to be deposited on or before 20th August, 1969, the respondent was to comply with the appellate decree and not the decree of the trial court.
This Court upheld the appellant 's contention that the lower 28 appellate court was wrong in extending the time for payment because the failure of the plaintiffs respondents to deposit the amount in terms of the trial court 's decree would result in pre emptors ' suit standing dismissed by reason of default in not depositing pre emption price.
It was only if the plaintiffs respondents had paid the decretal amount within the time granted by the trial court or if the plaintiffs respondents had obtained another order from the lower appel late Court granting any order of stay that the lower appel late court might have considered the passing of appropriate order in favour of pre emptors.
A Full Bench of the Punjab and Haryana High Court in Labh Singh & Anr.
vs Hardayal and Anr., (supra) held on the facts of that case as no prayer was made by the appellant to the Court for verification of the pre emption amount and the amount which was to be deposited, was mentioned in the application along with the challan in duplicate and the amount so mentioned was ordered to be deposited, it was not the responsibility of the Court to verify from the record and to direct the pre emptor to deposit the amount as men tioned in the decree.
It was a different matter if a liti gant sought the assistance of the Court and while giving such assistance, because of the mistake of the Court, less amount was deposited.
The Court observed that a litigant may not be allowed to suffer for the mistake of the Court but it could not be held that it was the duty of the Court in every case to verify the actual amount mentioned in every decree to be deposited.
In that case appellant Labh Singh obtained pre emption decree on May 27, 1971 and a direction to pay Rs.28,881.50 less 1/5th pre emption amount already deposited by 10th July, 1971 and the appellant deposited Rs.23,48 1.50 on 7th July, 1971.
Obviously there was short payment of Rs.200.
The vendees filed an appeal against the decree on 7th June, 1971 and prayed for stay of dispossession during the pendency of the appeal, which was allowed on 8th June, 1971 by the first appellate Court but that appeal was dis missed on 18th August, 1972 whereafter the appellant filed application for execution of the pre emption decree and was put in possession of the land on 2nd December, 1971 and when the vendees were to withdraw the amount they found the shortage of Rs.200 and applied for restitution of possession of the land which was allowed by the Executing Court on 15th June, 1974 and the same order was affirmed by the first appellate Court on 10th January, 1975.
The appeal therefrom having been referred to full Bench which held as above.
The Full Bench distinguished Dattaraya decision observing that in a given case if the Appellate Court while deciding the appeal extends the time for depositing the pre emption money no exception could be taken if the amount was 29 thus deposited by the time extended but no such order admit tedly was passed in that case nor the amount had been depos ited till the date of the judgment.
It also distinguished the decision in Jang Singh vs Brijlal & Ors., (supra), on the facts that the clerk of the Court made a mistake in making a report and consequently the pre emption amount deposited by the plaintiff was less by rupee one.
Jogdhayan vs Babu Ram & Ors.
, ; , also is a case of failure to deposit a fraction of the decretal amount.
The appellant obtained a pre emption decree and deposited a sum of Rs. 15,500 at the purchase price and Rs. 100 as the registration charges and other expenses of the deed.
The respondents ' appeal therefrom was dismissed by the Additional District Judge with the modification directing the appellant to deposit a sum of Rs. 1836.25 more in the trial court for payment to the vendee within 15.4.1967; in case of failure the suit would stand dismissed.
On 14.4.1967 the appellant deposited Rs. 1836 only instead of Rs. 1836.25.
He, however, made good the short deposit of 25 paise on 28.10.1968 with the permission of the Court aver ring that the omission to deposit 25 paise was due to bona fide mistake.
The vendee 's appeal was dismissed by the High Court with a direction to the appellant to deposit within 3 months time a further sum of Rs.500 for the improvements made to the land and the appellant deposited that sum within time.
Before the Executing Court the respondentvendee filed the application under Order 20 Rule 14(1)(b) contending that the short deposit of 25 paise within 15.4.1967 amounted to deemed dismissal of the suit itself and that the default could not be condoned.
The Executing Court having overruled the objections, the Judgment debtor 's appeal therefrom was accepted by the Additional District Judge holding that Order 20 Rule 14(1)(b) CPC was mandatory and the short deposit was not due to bona fide mistake and hence the default could not be condoned.
The appellant 's second execution appeal before the High Court was dismissed on the ground of limitation.
On appeal by special leave, this Court held that the admitted position was that the appellant deposited the entire amount of purchase money together with the costs decreed against him, less 25 paise within the time fixed by the Court and 25 paise too was deposited but beyond time.
The Executing Court held that the short deposit of 25 paise was due to the bona fide mistake while the executing appellate Court held that it was not due to any bona fide mistake, but it was a de fault and thereby the executing appellate Court deprived the decree holder of the legitimate fruits of the decree he obtained in all the Courts.
The finding of the first execut ing appellate Court that the non deposit could not be due to any bona fide mistake, was absolutely 30 untenable for the reason that while the appellant had depos ited in total Rs. 17,936.00 from time to time as directed by the Courts, there was absolutely no reason as to why they would not have deposited 25 paise unless it was due to a mistake.
This was pre eminently a case in which the first execution appellate Court ought to have exercised its dis cretionary powers under Section 148 CPC and accepted the delayed deposit of 25 paise, as was done by the original Executing Court.
The appeal was accordingly allowed, the Orders of the High Court as well as the first execution appellate Court were set aside and the Order of the original executing Court was restored.
In Jogdhayan vs Babu Ram & Ors., (supra) this Court considered the provision of section 148 CPC qua 0.20 r. 14 CPC and held that the appellate Court could have exercised the power as was done by the lower Court.
section 148 deals with enlargement of time and provides: "Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.
" This section empowers the Court to extend the time fixed by it even after the expiry of the period originally fixed.
It by implication allows the Court to enlarge the time before the time originally fixed.
The use of the word 'may ' shows that the power is discretionary, and the Court is, therefore, entitled to take into account the conduct of the party praying for such extension.
From the above decisions one could distinguish the cases of non deposit of the whole of the purchase money within the fixed time where there was no stay order granted by the appellate Court from the cases of non deposit of the decre tal amount consequent upon a stay order granted by the appellate Court.
In the first category of above cases the provisions of 0.20 r. 14(1) would be strictly applicable the provision being mandatory as was held in Naguba 's case (supra).
In the second category of above cases, it would be necessary to examine the nature and effect of the stay order on the deemed disposal of the suit and also to see whether a fresh period is fixed thereby as were the cases in Duttaraya (supra) and Jogdhayan (supra).
31 In the third category of eases, namely, non deposit of only a relatively small fraction of the purchase money due to inadvertent mistake whether or not caused by any action of the Court, the Court has the discretion under Section 148 CPC to extend the time even though the time fixed has al ready expired provided it is satisfied that the mistake is bona fide and was not indicative of negligence or inaction as was the case in Jogdhayan, (supra).
The Court will extend the time when it finds that the mistake was the result of, or induced by, an action of the Court applying the maxim 'actus curiae neminem gravabit an act of the Court shall prejudice no man, as was the case in Jang Singh (supra).
While it would be necessary to consider the facts of the case to determine whether the inadvertent mistake was due to any action of the Court it would be appropriate to find that the ultimate permission to deposit the challaned amount is that of the Court.
Proceeding as above, in the instant case we find that the decree did not quantify the purchase money having only said "Rs.41,082 less the amount of 'Zare Panjum".
Of course, 'certum est quod certum reddi potest ' that is certain which can be rendered certain.
The amount of 'Zare Panjum ' was not specified.
Parties do not controvert that it was 1/5th.
But the amount was not calculated by the Court itself.
Inadvert ent error crept in arithmetical calculation.
The deficit of Rs. 100 was a very small fraction of the total payable amount of Rs.33,682 which was paid very much within the fixed time, and there was no reason, except for the mistake, as to why he would not have paid this Rs. 100 also within time.
The appellants ' application with the challan annexed was allowed by Court officials without pointing out the mistake.
The amount was deposited and even possession of the property was delivered to the appellant.
The Senior Subordi nate Judge allowed the application made by the appellant in exercise of the discretion vested in him apparently on the view that sufficient cause had been made out for non deposit of Rs. 100.
This order, however, as seen above, was set aside by the High Court in a civil revision under section 115 C.P.C.
The question which comes in the forefront is whether any case was made out for interference by the High Court in its revisional jurisdiction under section 115 CPC with the order of the Senior Subordinate Judge.
The scope of section 115 CPC has been the subjectmatter of a catena of decisions of this Court and the law by now is so well settled that we do not find it necessary to make any detailed reference of those cases.
We find it sufficient to refer to the leading case on the point in Keshardeo Chamria vs Radha Kissen Chamria and 32 Others, [1953] SCR page 136 where it was held that Section 115 CPC applies to matters of jurisdiction alone, the irreg ular exercise or nonexercise of it or the illegal assumption of it, and if a subordinate court had jurisidiction to make the order it has made and has not acted in breach of any provision of law or committed any error of procedure which is material and may have affected the ultimate decision, the High Court has no power to interfere, however profoundly it may differ from the conclusions of that court on questions of fact or law.
Consequently, the High Court had jurisdiction to inter fere with the order of the Senior Subordinate Judge only (i) if the said Judge had no jurisdiction to make the order it has made, and (ii) had acted in breach of any provision of law or committed any error of procedure which was material and may have affected the ultimate decision.
If neither of these conditions was met the High Court had no power to interfere, however profoundly it may have differed from the conclusion of the Senior Subordinate Judge on questions of fact or law.
Coming to the question as to whether the Senior Subordinate Judge had jurisdiction to make the order made by him it may be pointed out that section 148 CPC, as seen above,conferred ample jurisdiction on him in this regard.
Apart from the cases cited above in support of the proposi tion we may refer to a Full Bench decision of the Allahabad High Court succinctly laying down the law on the point in Gobardhan Singh vs Barsati, [1972] A.L.J. page 169.
Relying on a decision of this Court in Mahanth Ram Das vs Ganga Das, [1961] 3 SCR page 763 it was held: "Even in cases where an order is made by the Court for doing a thing within a particular time and the order further provides that the application, suit or appeal shall stand dis missed if the thing is not done within the time fixed, the Court has jurisdiction, if sufficient cause is made out, to extend the time even when the application for extension of time is made after the expiry of the time fixed.
It is not the application for grant of further time, whether made before or after the expiry of the time granted, which confers jurisdiction on the Court.
The Court possesses the jurisdiction under Sec.
148 CPC to enlarge the time and the application merely invokes that jurisdiction.
" In Ganesh Prasad Sah Kesari and Another vs Lakshmi Narayan Gupta, [1985] 3 SCC page 53 it was held: 33 " . . where the court fixes a time to do a thing, the court always retains the power to extend the time for doing so.
Section 148 of the Code of Civil Procedure provides that where any period is fixed or granted by the court for the doing of any act prescribed or allowed by the Code, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.
The princi ple of this section must govern in not whit tling down the discretion conferred on the court.
" In this view of the matter there seems to be no manner of doubt that the Senior Subordinate Judge had jurisdiction to extend the time under section 148 CPC on sufficient cause being made out.
The first condition precedent to enable the High Court to exercise its revisional jurisdiction under section 115 CPC was, therefore, lacking.
Likewise, nothing has been brought to our notice on the basis of which it could be said that the discretion exercised by the Senior Subordinate Judge was in breach of any provision of law or that he committed any error of procedure which was material and may have affected the ultimate decision.
That being so, the High Court had no power to interfere with the order of the Senior Subordinate Judge, however, profoundly it may have differed from the conclusions of that Judge on ques tions of fact or law.
On the facts and circumstances of the case we feel justified in allowing this appeal, setting aside the im pugned judgment of the High Court, and in restoring that of the Senior Subordinate Judge allowing 10 days time to depos it the balance of Rs. 100 exercising power under section 148 CPC on facts of the case.
If the amount has not already been deposited, it shall be deposited within 30 days from today and the respondents shall withdraw the same according to law.
The appeal is accordingly allowed, but under the facts and circumstances of the case, without any order as to costs.
R.S.S. Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant 's claim to pre emption was decreed by the Senior Subordinate Judge in his favour.
The pre emption decree specified 31.12.1975 as the day on or before which the purchase money was to be paid into Court.
But the exact amount to be paid was not specified; it only said Rs.41,082 "less the amount of Zare Panjum" which the parties admit to be 1/5th.
Thus only 4/5th of the amount was to be paid.
Subsequently it was reported by the office that the amount deposited fell short of the decretal amount by Rs. 100.
Thereupon, the appellant decree holder filed an application praying for condonation of delay and for permission to deposit the balance of Rs. 100 stating that there was an inadvertent arithmatical mistake on his part, as also on the part of the Court officials.
The Senior Subordinate Judge applying the maxim "Actus curiae neminem gravabit" condoned the delay holding that the mistake of the decree holder was shared by the Court.
The High Court, however, allowed the respondent 's review petition filed under section 115 CPC., and held that the decree holder himself filed the applica tion annexing the challan mentioning the amount and as such there was no mistake on the part of any Court officials.
Before this Court it was inter alia contended on behalf of the appellant that the Senior Subordinate Judge having exercised power within his jurisdiction under section 148 CPC in extending the time to deposit the deficit amount of Rs. 100, the revisional court mis directed itself in holding that the court officials were not at fault in not pointing out the shortfall while permitting the deposit of the decretal amount.
On behalf of the respondents it was contended that the challan having been prepared by the decree holder himself, there was no mistake on the part of any Court official in accepting short deposit, and the 18 High Court rightly held that the appellant 's suit stood dismissed because of non deposit of the decretal amount within time, and thereafter there was no question of exten sion of any time for depositing the same.
Allowing the appeal, this Court, HELD: (1) There is no doubt that where the Court decrees a claim to pre emption and the entire purchase money payable has not been paid and there is no order from any court to justify or excuse non payment, the suit shall be dismissed under order XX Rule 14(1) CPC.
[22H] (2) While mere filing of an appeal does not suspend a pre emption decree of the trial Judge a stay order passed by the appellate court may suspend it in the manner ordered therein.
[28B] Naguba Appa vs Namdev, AIR (1954) SC 50 and Dattaray vs Shaikh Mahboob Shaikh Ali; , , referred to.
(3) One could distinguish the cases of non deposit of the whole of the purchase money within the fixed time where there was no stay order granted by the appellate Court from the cases of non deposit of the decretal amount consequent upon a stay order granted by the appellate Court.
[30G] (4) In the first category of above cases the provisions of 0.20 r.14(1) would be strictly applicable, the provision being mandatory.
[30G] Naguba Appa vs Namdev, AIR (1954) SC 50, referred to.
(5) In the second category of above cases, it would be necessary to examine the nature and effect of the stay order on the deemed disposal of the suit and also to see whether a fresh period is fixed thereby.
[30H] Dattaraya vs Shaikh Mahboob Shaikh Ali, ; and Sulleh Singh vs Sohan Lal, ; , referred to.
(6) In the third category of cases, namely, non deposit of only a relatively small fraction of the purchase money due to inadvertent mistake whether or not caused by any action of the Court, the Court has 19 the discretion under section 148 CPC to extend the time even though the time fixed has already expired provided it is satisfied that the mistake is bona fide and was not indica tive of negligence or inaction.
[31A B] Jogdhayan vs Babu Ram & Ors.
, ; , referred to.
(7) The Court will extend the time when it finds that the mistake was the result of, or induced by, an action of the court applying the maxim 'actus curiae nominem gravab it ' an act of the court shall prejudice no man.
While it would be necessary to consider the facts of the case to determine whether the inadvertent mistake was due to any action ' of the Court, it would be appropriate to find that the ultimate permission to deposit the channeled amount is that of the court.
[31B C] Jang Singh vs Brijlal & Ors., ; and Labh Singh vs Hardayal, [1977] 79 Punjab Law Reporter 4 17, referred to.
(8) In the instant case, inadvertent error crept in arithmetical calculation.
The deficit of Rs. I00 was a very small.
fraction of the total payable amount which was paid very much within the fixed time, and there was no reason, except for the mistake, as to why he would not have paid this Rs. 100 also within time.
The appellants ' application with the challan annexed was allowed by Court officials without pointing out the mistake.
The amount was deposited and even possession of the property was delivered to the appellant.
[31D E] (9) There seems to be no manner of doubt that the Senior Subordinate Judge had jurisdiction to extend the time under section 148 CPC on sufficient cause being made out.
[32D] Gobardhan Singh vs Barsati, ; Mahanth Ram Das vs Ganga Das, ; and Ganesh Prasad Sah Kesari vs Lakshmi Narayan Gupta, ; , referred to.
(10) Section 115 CPC applies to matter of jurisdiction alone, the irregular exercise or non exercise of it or the illegal assumption of it.
The High Court had therefore jurisdiction to interfere with the order of the Senior Subordinate Judge only (i) if the said Judge had no juris diction to make the order it has made, and (ii) had acted in breach of any provision of law or committed any error of procedure which was material and may have affected the ultimate decision.
The first condition precedent to enable the High Court to exercise its revisional jurisdiction under section 115 CPC was lacking.
Likewise, nothing has been 20 brought out on the basis of which it could be said that the discretion exercised by the Senior Subordinate Judge was in breach of any provision of law or that he committed any error of procedure which was material and may have effected the ultimate decision.
That being so, the High Court had no power to interfere with the order of the Senior Subordinate Judge, however profoundly it may have differed from the conclusion of that Judge on questions of fact or law.
[32A; C; 33D E] Keshardeo Chamria vs Radha Kissen Chamria & Ors., ; , referred to.


judgement:
Appeal No. 43 of 1982.
From the Judgment and Order dated 7.12.1979 of the Delhi High Court in Writ Petition No. 1754 of 1979.
AND Writ Petition (Civil) No. 265 of 1980.
(Under Article 32 of the Constitution).
P.K. Pillai for the Appellant.
R.K. Maheswari for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
The petitioner claims exemption under section 115(4)(a) of the Delhi Municipal Corporation Act, 1957 from the liability of paying general tax leviable under the said section.
The case of the petitioner is that it is a non profit making registered society and its object is to organize and run schools in Delhi and elsewhere with a view to promote education and welfare.
Accordingly it is running a school with the name of General Raj 's School in Delhi in a building constructed for that purpose.
A demand was made by the appropriate authority of the Municipal Corporation for payment of general tax under the Act and the exemption claimed by the petitioner was rejected.
In this situation the petitioner moved the Delhi High Court under Article 226 of the Constitution for appropriate relief.
The writ peti tion was dismissed in limine by the following order: "The only question that arises for consideration is whether the School run by the Society falls within the ambit of clause (4) of Section 115 of the Delhi Municipal Corpora tion Act.
Reading this section it is obvious that exemption for levy for general tax could be granted if the Society which is running the school was a Society for charitable purposes.
Charitable purpose is defined in the explana tion to clause (4) of Section 115.
No doubt the School is impart 68 ing education but in order to qualify for exemption, it had to give education and medi cal relief.
Admittedly fees are charged from students.
Mere imparting of education cannot be called giving relief.
We, therefore, find nothing wrong with the stand taken by the Municipal Corporation of Delhi.
Dismissed.
" The present Civil Appeal by special leave is directed against this judgment.
The learned counsel for the petitioner has contended that in view of the language of section 115(4)(a), quoted below, it is not correct to suggest that to qualify for exemption from the tax liability it is necessary for a society to offer medical relief: "(a) lands and buildings or por tions of lands and buildings exclusively occupied and used for public worship or by a society or body for a charitable purpose: Provided that such society or body is supported wholly or in part by voluntary contributions, applies its profits, if any, or other income in promoting its objects and does not pay any dividend or bonus to its members.
Explanation "Charitable purpose" includes relief of the poor, education and medical relief but does not include a purpose which relates exclusively to religious teach ing;" The argument is well founded.
The test of 'charitable pur pose ' is satisfied by the proof of any of the three condi tions, namely, relief of the poor, education, or medical relief.
The fact that some fee is charged from the students is also not decisive inasmuch as the proviso indicates that the expenditure incurred in running the society may be supported either wholly or in part by voluntary contribu tions.
Besides, the explanation is in terms inclusive and not exhaustive.
The impugned judgment must, therefore, be held to be erroneous.
Mr. B. Sen, the learned counsel representing the respondent Municipal Corporation, contended that although he is not in a position to support the reasoning given by the High Court, the petitioner is for other reasons not entitled to the exemption claimed and the High Court 's judgment is, therefore, correct.
He urged that in view of the 69 relevant facts and circumstances in the case, as is evident by the assessment order, the claim of the petitioner that its purpose is charitable cannot be accepted.
Since, the High Court has not adverted to the facts of the case relied upon by the learned counsel for the parties and has not expressed its opinion on the other aspects of the case, we are of the view that the case should go back on remand to it for fresh decision.
During the pendency of the case in this Court the parties have filed further affidavits.
It will be open to them to file additional affidavits and other materi als in support of their respective cases.
This, however, they should do within one month from today, so that the case which is an old one may be disposed of expeditiously.
Civil Misc.
Petition No. 11315 of 1989 has not been pressed and is, therefore, dismissed; and the Writ Petition No. 265 of 1980 is permitted to be withdrawn as prayed for on behalf of the petitioner.
Civil Appeal No. 43 of 1982 is allowed and the case is remitted to the High Court for fresh decision in the light of the observations made above.
There will be no order as to costs of this Court.
In view of the urgent nature of the case, the High Court is requested to dispose of the writ petition as expeditiously as may be possible.
S.S. Appeal al lowed.

summary:
The appellant, a non profit making registered society, is running a school in Delhi.
The Municipal Corporation raised a demand of general tax on the school building.
The appellant claimed exemption from the tax on the ground that the society was running the school for a charitable purpose and therefore fell within the ambit of clause (4) of section 115 of the Delhi Municipal Corporation Act, 1957.
The claim was rejected by the Corporation.
The appellant 's writ petition under Article 226 of the Constitution was dismissed by the High Court.
The High Court held that mere imparting of education could not be called giving relief and to qualify for exemption the Society had to give education and medical relief; and that fees were charged from students.
Before this Court it was contended by the appellant that in view of the language of section 115(4)(a) it was not correct to suggest that to qualify for exemption from the tax li ability it was necessary for the society to offer medical relief.
The respondent on the other hand contended that although it was not in a position to support the reasoning given by the High Court, the appellant was for other reasons not entitled to the exemption 'claimed and the High Court 's judgment was, therefore, correct.
Allowing the appeal and remitting the case to the High Court for fresh decision on the facts relied upon by the parties, this Court, HELD: (1) A "charitable purpose" as defined in the Act, includes relief of the poor, education and medical relief.
The test of 'charitable purpose ' is satisfied by the proof of any of the three conditions, 67 namely, relief of the poor, education, or medical relief.
[68E F] (2) The fact that some fee is charged from the students is also not decisive inasmuch as the proviso to section 115(4)(a) indicates that the expenditure incurred in running the society may be supported wholly or in part by voluntary contributions.


judgement:
(Crl.) No. 145 1 of 1985.
(Under Article 32 of the Constitution of India).
R.K. Jain and R.K. Bhatt for the Petitioner.
35 Kapil Sibal, Anil D. Singh, V.C. Mahajan, A.S. Nambiar, Salman Khurshid, Gopal Singh, Ms. K. Jaiswal, Ms. section Janani, Ms. A. Subhashini, Mrs. Indira Sawhney, Mrs. Urmila.
Kapoor, A.S. Bhasme, A.M. Khanwilkar, K.R. Nambiar, J.R. Das, D.K. Sinha, D. Bhandari, Y.P. Rao, S.K. Agnihotri, P.K. Manohar, M. Veerappa, R.K. Mehta, K.R.R. Nambiar, B.D. Sharma, K. Vasdev, D.N. Mukharjee, M.P. Jha, T.V.S.N. Chari, Mahabir Singh, M.N. Shroff, A. Subba Rao, R.S. Sodhi, K. Ramkumar, S.K. Bhattacharya, L.R. Singh, A.K. Sanghi, C.V.S. Rao, R. Venkataramani, Probir Choudhary, T.V.S. Krishna murthy, section Vasudevan, D.R.K. Reddy, K.J. Rao and U.N. Singh for the Respondents.
The following Order of the Court was delivered: ORDER It is stated by counsel appearing for the States includ ing that of Nagaland that affidavits as directed have been filed.
Mr. Jain appearing in support of the writ petition has asked for a direction to the State to set up Advisory Boards both at the State and the District levels, as contem plated in the scheme so that implementation of the various provisions of the Act can be facilitated.
We are of the view that for the present the Board in terms of the provision of the scheme should be set up at the State level and steps at the District level may be deferred for the present.
Each of the States including the State of Jammu & Kash mir to which the scheme would apply though not under the Act in view of its consent, is directed to set up its Advisory Board in terms of the scheme.
Implementation of the Act would be convenient if in the Board to be set up the Minis ters of Law and Social or Children 's Welfare, as the case may be, the Secretary to Government in the relevant Depart ment, the Head of the Police Establishment (Director General or the Inspector General, as the case may be), the Head of the Health Directorate, two members of the Bar with appro priate aptitude, an acknowledge lady social worker, a Member of Parliament and a Member of the State Legislature, one or two social workers of .acknowledged repute preferably con nected with children 's rehabilitation activity are included.
It would be open to the State Government to make small variations depending upon the requirements of any particular State.
The total number of the Advisory Boards should not be below 15 and not above 20.
The State Government should indicate 36 as to who would be the Chairman and Secretary respectively of the Board.
Such Committee should be set up within six weeks from today and report of compliance shah be filed with the Registry of this Court within eight weeks.
The first meeting of the Board should be within four weeks of its constitution and every such Board is directed to send its first proceeding to the Registry.

summary:
In a public interest application filed under Article 32 of the Constitution for enforcement of fundamental rights under Articles 14 and 21 of the Constitution being denied to the hundreds of juvenile delinquents, all over the country, the Supreme Court had issued directions from time to time.
Issuing further directions in the matter, this Court, HELD: For the present the Advisory Board in terms of the provision of the scheme for facilitating the monitoring of the implementation of the Act should be set up at the State level and steps at the District level may be deferred.
[35E] Each of the States, including the State of Jammu & Kashmir to which the scheme would apply, by its consent, is directed to set up its Advisory Board in terms of the scheme.
The total number of the Advisory Boards should not be below 15 and not above 20.
The State Government should indicate as to who would be the Chairman and Secretary respectively of the Board.
Such Committee should be set up within six weeks and report of compliance filed with the Registry of this Court within eight weeks.
The first meeting of the Board should be within four weeks of its constitution and every such Board should send its first proceeding to the Registry, [35F, H, 36A B]


judgement:
iminal Appeal No. 69 of 1956.
Appeal by special leave from the judgment and order dated November 18, 1955, of the Orissa Hioh Court at Cuttack, in Criminal Revision No. 20 of 1955 arising out of the Judgment and order dated December 23, 1954, of the Court of the Sessions Judge at Sambalpur in Criminal Appeal No. 111(S) of 1954.
Tara Chand Mathur and K. L. Arora, for the appellant.
N.S. Bindra and R. H. Dhebar for the respondent.
August 19.
The Judgment of the Court was delivered by IMAM J.
This appeal by special leave is limited to the question ' whether transport includes possession, and so the double punishment for possession and transport is not warranted by law 's stated in ground (xi) of the petition for special leave.
On the facts found there can be no question that the appellant went in a rickshaw from the Sambalpur Road Railway Station to the State Transport Bus Stand with a trunk and a bedding in order to proceed to a place called Bargarh.
He bought a ticket for Bargarh and took his seat in the bus after loading his trunk and bedding on top of it.
On information received by the Officer in charge of Sadar Police Station of Sambalpur, the bus was detained near the 148 1164 police station, while on its way, and all the trunks and beddings on it were unloaded, and the passengers of the bus were asked to take their respective trunks and beddings.
The passengers took their trunks and beddings.
One trunk and a bedding, however, remained on the ground.
The appellant claimed the bedding to be his own, but denied the trunk to be his property.
The bedding and the trunk were brought to the thana and the trunk was opened.
The trunk contained opium weighing six seers and six and half chhataks.
On the facts found, the trunk was identified as that of the appellant, and there can be no question that he was in possession of the opium.
The only question for consideration, having regard to the limited ground upon which special leave was granted, is whether the appellant could also be punished for being in possession of opium, as it is suggested that transport ' includes I possession '.
The appellant was sentenced under section 9 (a) for possession ' of opium and under section 9(b) for 'transport ' of opium, and sentenced to undergo rigorous imprisonment for three months tinder each count, the sentences to run consecutively.
Section 4 of the Opium Act, 1878 (Act 1 of 1878) reads as follows: "Except as permitted by this Act, or by any other enactment relating to opium for the time being in force, or by rules framed under this Act or under any such enactment, no one shall (a) possess opium; (b) transport opium; . . . . . . . . .
It is clear from the provisions of section 4 that no one shall possess opium or transport opium, except under the circumstances mentioned in the section.
Section 9 provides that: " Any person who, in contravention of this Act, or of rules made and notified under section 5 or section 8 (a) possesses opium, or (b) transports opium . . . . . . . . . . 1165 shall, on conviction before a Magistrate, be punished for each such offence with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
" This was the provision in section 9 before its amendment by Act 111 of 1957 which provided that on conviction before a Magistrate, a person convicted of any of the offences mentioned in section 9 shall be punishable for each such offence with imprisonment which may extend to three years, with or without fine.
We are, however, not concerned in this particular case with the punishment provided by the amendment, as the offence was committed previous to it.
The provisions of the Opium Act make it clear that possession of opium and transport of opium contrary to the provisions of the Act or any other enactment relating to opitum or to rules framed under the Act, are two separate offences.
Mere possession of opium may not, on the proved facts of a particular case, involve any question of transporting it.
Transport of opium may, in certain circumstances, include the element of possession, while in other cases, it may not.
A person may transport opium through various agencies and yet not be in possession of it at the time it was trans ported.
On the other hand, a person may transport opium and yet be in possession of it.
In the latter case, such a person would be guilty both of transporting opium and being in possession of it.
Under the Act, 'transport ' means to remove from one place to another within the, same State '.
A person may remove opium and be in possession of it while removing it, and he can also remove, it from one place to another within the same State in circumstances when while removing it he is not in possession of the opium.
The intention of the Legislature appears to have been that neither possession of doium nor transporting of opium was permissible, if such possession or transporting was in contravention of the provisions of the Opium Act or any other enactment relating to opium, or rules framed under the Opium Act.
It seems therefore that where a person transports opium and is in possession of it at the time he was transporting it, he has committed 1166 two offences, viz., (1) of transporting opium; and (2) of possessing opium.
He can therefore be convicted for both the offences.
As to the sentence which can be imposed, reference to section 35 of the Code of Criminal Procedure and section 71 of the Indian Penal Code is necessary.
Section 35 of the Code of Criminal Procedure provides that where a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 71 of the Indian Penal Code, sentence him, for such offences, to the several punishments prescribed therefor which such Court is competent to inflict ; such punishments, when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishment shall run concurrently.
Section 35 therefore permits the passing of separate sentences for different offences and for them to run consecutively unless the Court directs that they shall run concurrently.
This, however, is subject to the provisions of section 71 of the Indian Penal Code.
Section 71 of the Indian Penal Code provides: " Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided.
Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.
" It is clear from these provisions that where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the offender shall not be punished with a more severe punishment than the 1167 Court which tries him could award for any one of such offences.
The maximum sentence which could have been imposed upon the appellant for any one of the offences of which he had been convicted was one year 's imprisonment.
In other words, even if separate sentences were passed under section 9, sub sections (a) and (b), the sum total of these sentences should not exceed one year 's imprisonment.
In the present case, the sentence imposed upon the appellant has been in all 6 months, 3 months ' imprisonment under each count.
It would appear, therefore, that the sentence passed upon the appellant did not contravene the provisions of section 71 of the Indian Penal Code.
In our opinion, the appellant , %,as rightly convicted under section 9 (a) and (b) of the Opium Act, and there has been no illegality in the sentence imposed upon him.
It was strongly urged on behalf of the appellant that there might be a reduction in the sentence.
Instead of a sentence of imprisonment being imposed, the appellant may be sentenced to a substantial fine.
In our opinion, offences against the Opium Act are serious ones, and we cannot accede to the request made.
A sentence of 6 months ' imprisonment cannot be considered as unduly severe.
The appeal is accordingly dismissed.

summary:
The appellant was caught while he was himself transporting opium.
He was convicted under section 9(a) of the Opium Act for posession " of opium and under section 9(b) of the Act for " transport of opium and was sentenced to undergo rigorous imprisonment for three months under each count, the sentences to run consecutively.
The appellant contended that " transport " included " possession " and so the double punishment for possession and transport was not warranted by law : Held, that possession of opium and transport of opium are two separate offences and the appellant could be convicted for 1163 both the offences.
Transport of opium may, in certain cases, include the element of possession, and in other cases, it may not.
A person transporting opium through other agencies may not be in possession of it at the time it was transported.
But a person transporting opium himself would be in possession of it and would be guilty of both offences.
The sentence passed upon the appellant did not contravene the provisions of section 71 of the Indian Penal Code.
Section 71 provides that where anything is an offence falling within two or more separate definitions of the law, the offender shall not be punished with a more severe punishment than that provided for any one of such offences.
Though separate sentences were passed against the appellant unders .9(a)and(b),the sum total of these sentences did not exceed one year 's imprisonment the maximum provided for any of these offences.