judgement:
minal Appeal No. 92 of 1965.
Appeal by special leave from the judgment and order dated ' October 20, 1964 of the Madhya Pradesh High Court in Criminal Appeal No. 67 of 1964.
I.N. Shroff and M. N. Shroff, for the appellant.
O.P. Rana, for the respondent.
The Judgment of the Court was delivered by Hidayatullah, J.
The respondent Ramprasad against whom the State of Madhya Pradesh has filed this appeal by special leave was tried in the Court of Session under section 302 of the Indian Penal Code.
He was convicted by the Sessions Judge under section 324 of the Code and sentenced to rigorous imprisonment for six months.
The State Government there filed an appeal against his acquittal under section 302, Indian Penal Code and also 'an application for 523 revision for the enhancement of the sentence passed on him.
The High Court convicted him under section 304 Part II and sentenced him to 4 years ' rigorous imprisonment; concurrently the application for revision was dismissed as infructuous.
The State Government has now filed this appeal and contends that the conviction of the respondent should have been under section 302 of the Indian Penal Code and that there has been failure of justice in the case requiring interference from this Court.
The facts of the case are as follows : Ram Prasad was living with his mistress Mst.
Rajji at Mannaur in District Panna.
Evidence shows that they were having quarrels for some time previous to the incident which took place on May 24, 1963.
On that date, Ram Prasad intended leaving Mannaur for a place called Harsa, because his cattle used to be stolen at Mannaur.
Rajji was unwilling to go with him unless he first reported the matter to the police station house before taking her to Harsa; alternatively, she wanted that he should leave her at Mannaur and give her some cattle for her maintenance.
To either course Ram Prasad was unwilling.
Matters came to a head on the night of.
the 24th when Rain Prasad ordered a van in which he began putting his luggage with a view to leaving for Harsa.
Rajji then went to some of the village panchas and brought them over for intercession.
It is these panchas who have now appeared as witnesses to the incident that took place immediately afterwards.
To all the panchas Mst.
Rajji again narrated the story of her grievance and Ram Prasad insisted on taking her away.
As Rain Prasad would not give in, nor would Rajji, the panchas could do nothing further and some of them went away to their lodging which were close to the residence of Ram Prasad.
Evidence then shows that Ram Prasad approached Mannulal (P.W.4) with a lantern in one hand and an aluminium bowl in the other.
He asked for some kerosene oil, because oil in his lamp had run down, but Mannulal did not give any as he had none to spare.
Immediately thereafter Ram Prasad went back to his room and a cry was heard from Mst.
Rajji that Ram Prasad had put kerosene oil on her and set her alight.
Mannulal, Holke and others immediately arrived on the scene and put out the fire, but before that happened, Mst.
Rajii was extensively burnt.
She kept on, accusing Ram Prasad with the deed, but Ram Prasad, according to the witnesses, did not say anything in protest.
On the other hand, when he was questioned by the panchas as to why he had done so, he retorted that Mst.
Rajji was his wife and what had they to do with the matter and added that they might even get him hanged.
Rajji was then taken on cycle to the police station house although the hospital was on the way.
Evidence shows that Mst.
Rajji insisted on being taken to the police station house first.
There she made the statement which is exhibit P 7, in, which she charged Ram Prasad with her condition and stated also,, 524 that he had put kerosene oil on her and set her clothes on fire.
Later she was removed to the hospital where separately to two doctors in attendance (Dr. Mrs. Ghosh and Dr. M. L. Gupta) she again stated that she was burnt by her husband who had put kerosene oil on her.
Dr. Ghosh noted on the bed head ticket "homicidal burn by husband '.
The next day, Mst.
Rajji died Prosecution produced the panchas as witnesses to the earlier transaction in which Mst.
Rajji and Ram Prasad had disagreed over going to Harsa and also in proof of the statement of Mst.
Rajji that Ram Prasad had put kerosene oil on her and set her clothes alight.
They have also through the same witnesses proved the conduct of Ram Prasad when Mst.
Rajji accused him of having committed the outrage.
The prosecution has further relied upon the statements made by Mst.
Rajji in exhibit P 7 and to the two doctors who have deposed in the court.
The High Court and the court below have agreed in holding Ram Prasad responsible for the outrage.
They have accepted the three dying declarations as well as the evidence of the eye witnesses in support of the prosecution case. 'They have only ,differed as to the offence disclosed by this evidence.
We issued notice to the respondent to show cause against the appeal of the State Government.
Although he received the notice, he did not make any arrangement for his own representation in this Court.
We accordingly invited Mr. O. P. Rana to appear as amicus curiae on behalf of the respondent at State expense.
We allowed Mr. Rana to argue not only about the nature of the offence but also on merits with a view to point out to us any circumstance proving that the conviction itself was wrong.
Although there is no provision to this effect in the rules of this Court, we thought it safer to follow the procedure laid down for the High Court in the Code of Criminal Procedure when it hears 'a matter after notice of enhancement of sentence.
It seemed to us to be both fair and just to give the accused a chance to prove to the satisfaction of this Court that the offence itself had not 'been brought home to him.
In so far as the quarrel between Ram Prasad and Mst.
Rajji is concerned,there is nothing which can be said against it.
In fact the record bristles with evidence on this point.
All theevidence which has been brought to show that Ram Prasad was intending to leave for Harsa and Mst.
Rajji was resisting him could not be false, because the panchas were called and they attempted to intervene.
The real dispute is as to whether it was Ram Prasad who poured kerosene oil on Mst.
Rajji and set her alight or whether, as suggested by Ram Prasad and pleaded by Mr. Rana, it was Mst.
Rajji who herself put her own clothes on fire and committed suicide at the same time falsely charging Ram Prasad with the outrage.
In this connection, prosecution produc 525 ed four witnesses.
The first is Mannulal who was present at the.
calling of the panchayat by Mst.
Rajji.
In fact it was Mst.
Rajji herself who went to summon him to the house of Ram Prasad and it was from him that Ram Prasad asked for some kerosene off.
The fact that kerosene oil was asked for is admitted by Ram Prasad himself and the question arises why was it necessary for Ram Prasad to have asked for kerosene oil at that moment and why immediately afterwards Mst.
Rajji was found with her clothes burning.
No doubt, Mannulal did not give any kerosene oil but it seems to us that the lantern which Ram Prasad carried in his own hand had some kerosene oil in it.
It was possible for him to have extracted some oil from the lantern.
We do not put too much emphasis upon this aspect of the case, because there is no direct evidence.
But on the side of the prosecution and the defence, there is agreement that kerosene oil was in fact put upon the clothes before they were set on fire.
In fact the burnt clothes even in the court emitted still a smell of kerosene oil and the aluminium bowl also smelt of kerosene.
This was noted by the Sessions Judge who tried the case.
It, therefore, stands to reason that kerosene oil was in fact employed before the clothes were set on.
fire and the short question.
in this case is whether it was Ram Prasad who set fire to the clothes or it was Mst.
Rajji who put kerosene oil on herself and set herself alight.
On this part of the case, there is the evidence of Mannulal to which we have already referred.
A similar statement was made by Holke (P.W. 3) and Soni (P.W. 6).
They consistently spoke of Ram Prasad having asked Mannulal for kerosene oil and that immediately afterwards Mst.
Rajji was found with her clothes burning and accusing Ram Prasad of the outrage upon her.
There is one witness, however, who did not entirely support this story and that is Jhallu (P.W. 4).
His version was that Mst.
Rajji stated to Ram Prasad that their quarrel had been, settled, implying thereby that she had set herself on fire and thus terminated the quarrel.
This statement was made by the accused in his examination under section 342 of the Code of Criminal Procedure and support is therefore sought to the contrary story from the evidence of Jhallu.
Jhallu was declared hostile and was crossexamined with reference to his previous statement before the police.
We find that in his statement to the police he did not mention the fact to which he deposed in the Court of Session and it makes us doubtful whether what he stated in the Court of Session was true.
In fact there is nothing brought out in his deposi tion beyond this remark by Mst.
Rajji that the quarrel between the bania and herself has been settled.
Rajji in addition to making the accusation might have stated that their quarrel had got settled.
It is possible this retort might well have been uttered: with the accusation.
But it is curious that when Mst.
Rajji roundly accused Ram Prasad with having set fire to her clothes, Ram 526 Prasad did not say anything in defence which one would expect a reasonable man to do.
He should have protested then and there.
He had no reason to state to the panchas that Mst.
Rajji was his wife and the panchas had nothing to do with the matter .and that they could get him hanged.
His attitude later in not ,,going to the police station house and to the hospital speaks against him.
There are also the three statements by Rajji to say nothing of her shouts accusing her husband which were part of the res gestae.
On the whole, therefore, we are satisfied that the conclusion of the High Court and the Sessions Judge that it was Ram Prasad who had put kerosene oil upon Mst.
Rajji and set her clothes on fire was correct in the circumstances of this case.
The question then arises, what was the offence which Ram Prasad can be said to have committed ? The offence of causing injury by burning is a broad spectrum which runs from section 324 causing simple injury by burning through section 326, namely, causing grievous injury by burning to the two major offences, namely, culpable homicide not amounting to murder and even murder itself.
The Sessions Judge chose the lowest end of the spectrum which is surprising enough, because the burns were so extensive that they were certainly grievous by all account.
The High Court placed the offence a little higher, namely, culpable homicide not amounting to murder.
We think that the matter goes a little further than this.
As death has been caused the question has to be considered in the light of homicide to determine whether the action of Ram Prasad Calls within culpable homicide not amounting to murder or the higher offence of murder itself.
Here we see that death has actually been caused by the criminal act; in other words, there has been homicide and since it is not accidental or suicidal death, responsibility for the homicide, in the absence of any exceptions ;or extenuating circumstances, must be borne by the person who ,caused it.
The High Court has apparently stopped short by holding that this was a case of culpable homicide not amounting to murder.
The question is whether the offence falls in any of the clauses of section 300 Indian Penal Code.
In this connection it is difficult to say that Ram Prasad intended causing the death of Mst.
Rajji although it might well be the truth.
That he set fire to her clothes after pouring kerosene oil is a patent fact and therefore the matter has to be viewed not only with regard to the firstly of section 300, but all the other clauses also.
We do not wish to consider the second and the third clauses, because the question then would arise what was the extent of the injury which Ram Prasad intended to cause or knew would be caused to Mst.
Rajji.
That would be a matter of speculation.
In our opinion, this matter can 'be disposed of with reference to clause fourthly ,of section 300.
That clause reads as follows : . . culpable homicide is murder. . if the person committing the act knows that it is so imminently 527 dangerous that it must in all probability, cause death or such bodily injury as is likely to cause death, and commits 'such act without any excuse for incurring the risk or causing death or such injury as aforesaid.
" It is obvious that there was no excuse for Ram Prasad to have taken the risk of causing the death or such bodily injury as was likely to cause death.
The question therefore arises whether Ram Prasad knew that his act was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, so as to bring the matter within the clause.
Although clause fourthly is usually invoked in those cases where there is no intention to cause the death of any particular person (as the illustration shows) the clause may on its terms be used in those cases where there is such callousness towards the result and the risk taken is such that it may be stated that the person knows that the act is likely to cause death or such bodily injury as is likely to cause death.
In the present case, Ram Prasad poured kerosene upon the clothes of Mst.
Rajji and set fire to those clothes.
It is obvious that such fire spreads rapidly and burns extensively.
No special knowledge is needed to know that one may cause death by burning if he sets fire to the clothes of a person.
Therefore, it is obvious that Ram Prasad must have known that he was running the risk of causing the death of Rajji or such bodily injury as was likely to cause her death.
As he had no excuse for incurring that risk, the offence must be taken to fall within 4thly of section 300, Indian Penal Code.
In other words, his offence was culpable homicide amounting to murder even if he did not intend causing the death of Mst.
Rajji.
He committed an act so imminently dangerous that it was in all probability likely to cause death or to result in an injury that was likely to cause death.
We are accordingly of the opinion that the High Court and the Sessions Judge were both wrong in holding that the offence did not fall within murder.
Mr. Rana contended that there was no proof from the medical reports that kerosene oil was employed because the wounds did not smell of kerosene.
Apart from the fact that both the courts have held that kerosene was so employed, the evidence is quite satisfactory that kerosene was in fact poured upon the victim before the clothes were set on fire.
The omission of this fact in the medical reports is not of consequence.
We accordingly allow this appeal, substitute the conviction under section 302 of the Indian Penal Code in place of the conviction under section 304 Part II and sentence Ram Prasad to imprisonment for life.
V.P.S. Appeal allowed.

summary:
The accused poured kerosene upon his mistress and set her clothes on: fire.
There were extensive burns and she died as a result thereof.
On the question as do the nature of the offence.
HELD : The accused must have known that he was committing an act so imminently dangerous that it must in all probability cause death or such injury as was likely to cause death.
As he had no excuse for incurring that risk the offence falls under section 300 (fourthly) of the Indian Penal Code, that is culpable homicide amounting to murder, even if the accused did not intend to cause her death.
[527 D E] Although the clause is usually invoked in those cases where there is no intention to cause the death of any particular person, it may, on its terms, be used in those cases where there is such callousness towards the result and the risk taken is such that it may be stated that the person knew that the act was likely to cause death or such bodily injury as was likely to cause death.
[527 C] Even though there is no provision to that effect in the Rules of the Supreme Court, in the case of an appeal by the State against acquittal for the major offence, it is safer, fair and just to the accused to give him a chance to prove that he was not guilty even of the lesser offence on the analogy of section 439(6) of the Criminal Procedure Code.
[524 F]


judgement:
minal Appeal No. 137 of 1967.
Appeal by special leave from the judgment and order dated May 9, 1967 of the Rajasthan High Court in section B. Criminal Appeal No. 254 of 1966.
Sobhag Mal Jain, for the appellants.
H. R. Khanna and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by Vaidialingam, J.
The two appellants, in this appeal, by special leave, challenge their conviction, by the Additional Sessions Judge, No. 1, Jaipur City, for offences under sections 120B, 420, 420 read with 511, and 467 read with 471, I.P.C., as confirmed by the High Court of Rajasthan, at Jodhpur.
Bhanwar Singh has also been convicted, for an offence under section 380, I.P.C. Both of them have been sentenced to various terms of imprisonment and fine, for these offences, and the sentences of imprisonment have been directed to run concurrently.
The two appellants, along with two others, who have since been acquitted, were tried by the learned Sessions Judge, for various offences, as indicated below.
There was a common charge of criminal conspiracy, under section 120B, IPC, to do, or cause to be done, illegal acts, viz., offences of theft, cheating, forgeries, etc., against all the four accused.
Under this head, the allegation was that the four accused agreed, among themselves, to commit theft and pilferage, of Indian and British postal orders and bank cheques, belonging to different persons, which were in transmission, by post and that, after such pilfering, the names of the original payees and the names of the paying post offices were erased and forgery was committed by writing the names of fictitious persons, or the names of some of the accused, and of different post offices.
The further allegation was that the accused agreed to use, as genuine, all such pilfered and forged postal orders and cheques, which the accused knew, or had reasons to believe, were forged documents.
There was also an allegation that all the accused had also agreed to present, such pilfered and forged postal orders and cheques, for encashment at the post offices and banks at Ajmer and Jaipur, through the two appellants and Yasoda Devi, 4th accused, pretending to be either the original payees or the substituted payees.
It was further alleged that the accused had agreed to cheat, or attempt to cheat, the postal L2Sup.
CI/68 3 530 authorities and banks, at Ajmer and Jaipur, by dishonestly inducing them to make payment to the appellants and Yasoda Devi, in respect of the pilfered and forged postal orders and cheques.
It Was also stated that the accused committed the various acts, in pursuance of the agreement, regarding the postal orders and cheques, details of which were given under that charge.
Appellant Bhanwar Singh was also further charged that, in pursuance of the conspiracy, during October 1956 and December 1957, he committed theft of various postal orders and cheques, belonging to various persons and that he also forged certain postal orders, which were valuable securities, by removing the names of the original payees and inserting his own name and that he thereby cheated the postal authorities at Jaipur, by dishonestly inducing them to deliver certain amounts against such postal orders, which were really payable to a third party, and thereby he committed offences of theft, forgery and cheating, under sections 380, 467 and 420, I.P.C. There were also certain further charges, for offences punishable under section 471; and of an attempt to commit cheating in respect of a cheque, punishable under section 420 read with section 51 1, IPC.
Similarly, against Kishanlal, the 2nd appellant, there were additional charges, framed under sections 467, 420, 420 read with 511 and 471, I.P.C. Kapoorchand was also charged under sections 380 and 467 I.P.C., and Yasoda Devi, under sections 467, 471, 420 and 419 I.P.C. The case of the prosecution, in brief, was as follows.
Bhanwar Singh and Kapoorchand were constables in the C.I.D., Ajmer Zone, during 1956 57.
In the course of their duties of censoring postal mail, these two constables, after having opened the mail, for the purpose of censoring, pilfered certain Indian postal orders and British postal orders and cheques and, after erasing the names of the original payees, as also the names of the post offices or banks, where payment was to be made, inserted their own names or some fictitious names and got the postal orders or cheques encashed at different post officers and banks.
According to the prosecution, Bhanwar Singh and Kapoorchand had entered into a conspiracy, with Kishanlal and Yashoda Devi, whose services were utilised for getting the moneys from the Banks.
The matter came to light when the payees did not receive the cheques or the postal orders intended for them and lodged complaints with the post offices and banks.
On investigation, the four accused were charged, as detailed above.
The accused denied the charges levelled against them.
The learned Sessions Judge came to the conclusion that the charge of criminal conspiracy was established, against all the four accused The first appellant was found to be the main accused and he was 531 convicted under sections 380, 467/471, 420/511 read with section 120B I.P.C.
The second appellant and Yashoda Devi were convicted under sections 467, 471 and 420 read with section 120B IPC.
Kapoorchand was however convicted only for offences under sections 380 and 467 read with 120 B, IPC.
The learned Sessions Judge sentenced all of them to various terms of imprisonment, and fine, for the different offences, as stated already.
All the four accused challenged their conviction for these offences and the sentence passed against them, be before the High Court of Rajasthan.
Two contentions were raised by the accused; (i) that the trial held by the Sessions Judge was illegal and void, inasmuch as the prosecution had been conducted, without obtaining the necessary sanction, under section 196A of the Code of Criminal Procedure 1 in respect of the charge under sections 467 and 471 read with section 120B IPC; (ii) that the evidence adduced by the prosecution, did not establish the guilt of the accused.
Both these contentions have been negatived by the High Court, so far as the appellants herein are concerned.
The High Court, however, acquitted Yashoda Devi, holding that the prosecution evidence id not establish her guilt, beyond reasonable doubt.
The High Court also acquitted Kapoorchand holding that the trial against him was void, because the necessary sanction had not been obtained, under section 196A of the Code of Criminal Procedure.
On behalf of the appellants, Mr. Jain, learned counsel, raised the same two contentions before us.
Counsel urged that inasmuch as the accused were prosecuted for non cognizable offences under sections 467/471 read with section 120B, IPC., the trial was illegal and void, inasmuch as the necessary sanction, under section 196A of the Code had not been obtained.
Learned counsel further urged that the mere fact that the accused were also tried for the offence of cheat ing, under section 420 IPC, which is cognizable and for which punishment by way of imprisonment extending to 7 years could be imposed, and for which no sanction was necessary, would not make the trial valid.
Under such circumstances, the joint trial for cognizable and non cognizable offences was illegal and void.
Mr. Khanna, learned counsel for the State, met this conten tion, on behalf of the appellant, by pointing out that the main object of the conspiracy was to cheat the banks and the post offices, by obtaining money from them; the forgeries committed by the accused on the cheques and postal orders were only incidental to achieve the main object of the conspiracy, viz., to commit the offence under section 420 IPC.
Under those circumstances, Mr. Khanna pointed out, it was not necessary to obtain sanction under section 196A of the Code and therefore there was no illegality,.
which would vitiate the trial, held by the Sessions Judge.
532 We have already indicated the offences for which the appellants and the other two accused, who have since been acquitted, were tried.
It is enough to note that there was a charge under section 120B, read with section 467/471 and 420 IPC.
The offences under section 467 and 471 are non cognizable, but the offence under section 420 is a cognizable one for which the punishment could be imprisonment extending to 7 years.
Therefore, if the object of the conspiracy, under section 120B, was to commit a non cognizable offence, under section 467 or 471 I.P.C., the obtaining of sanction, from the authorities mentioned in sub section
(2) of section 196A, was absolutely necessary, and the absence of such sanction would vitiate the trial, for such offences.
Similarly, if the object of the conspiracy, under section 120B, was to commit a cognizable offence under section 420 IPC, which is punishable with imprisonment for a term above 2 years, no sanction is necessary, under section 196A.
The question is, whether sanction was necessary in the case before us, when there was a trial for offences under section 467/471 and 420 IPC, read with section 120B. In the instant case, it is admitted that no sanction was ob tained.
In The State of Andhra Pradesh vs Kandimalla Subbaiah(1) the question arose, before this Court, whether sanction under section 196A of the Code was necessary when there was a trial for offences under section 120B, read with sections 466, 467 and 420, IPC.
It was argued, on behalf of the State, that since the object of the conspiracy was to cheat the Government i.e., to commit an offence under section 420 IPC, and as the offences under sections 466 and 467 were only means to that end, the trial was not vitiated simply because no sanction was obtained for prosecuting the accused, for offences of criminal conspiracy to commit non cognizable offences, under sections 466 and 467 IPC.
But, in that decision, this Court did not express any opinion on this point, as the matter was sent back to the trial Court, for framing fresh charges and proceeding with the trial, after observing that it was for the Government to consider whether it should accord sanction for prosecution of non cognizable offences, assuming that such sanction was necessary.
The question, that was thus left open, in that decision, arises for consideration, now, in the instant case before us.
On behalf of the appellant, reliance has been placed on three decisions, in support of the contention that under such circumstances, the trial is illegal and void.
Those decisions are: Subbaiah, In re:(2), of the Andhra Pradesh High Court; Jadeda Meramanji vs State of Gujarat(3), of the Gujarat High Court; and Nibaran Chandra vs Emperor(4), of the Calcutta High Court.
(1) (3) (2) I.L.R. (4) A.I.R. 1929 Cal.
533 The decision of the Calcutta High Court does not assist the appellant, because the charge that was framed was of criminal conspiracy, under section 120B read with section 384 IPC.
The object of the conspiracy having been to commit an offence, under section 384 IPC, which is a non cognizable offence, it was held by the Calcutta High Court that the Magistrate could not take cognizance of the offence, without the necessary sanction, under section 196A; and, on this ground, the High Court held that the trial was void.
In the decisions of the Andhra Pradesh and Gujarat High Courts, referred to above, it has been held that in respect of a prosecution, for criminal conspiracy, under section 120B, read with es.
466 and 467 IPC., under which sections the offences are non cognizable, the consent, contemplated under section 196 (A) (2) is a pre requisite to any Court taking cognizance of that offence; it has also been held that sanction is not necessary to prosecute a case of criminal conspiracy to commit an offence under section 420 IPC.
The legal proposition, stated as such, is unexceptionable.
But it is not clear from the discussion, contained in the two judg ments, as to what was the object of the conspiracy.
It is also to be stated that the said two decisions had no occasion to consider the question whether sanction, under section 196 (A) (2), Cr.
P.C., is still necessary when a trial is held for offences under section 120B read with section 466, 467 and 420 IPC., and when the case of the prosecution is that the object of the conspiracy is to commit the offence of cheating, and non cognizable offences have been committed for the purpose of effecting the object of the conspiracy.
We may also point out that our attention has been drawn to the decision of this Court in Madan Lal vs State of Punjab (1).
We have gone through that decision and it does not, in our opinion, assist the appellant.
The view of the various High Courts, to which we will refer presently, and with which view we agree, is that no sanction is necessary, under section 196A(2) Cr.
P.C., when the object of the conspiracy is to commit the offence of cheating (420 IPC), but, forgery of documents (467 IPC) and similar non cognizable offences are also committed, as merely steps taken, by one or other of the accused, for the purpose of effecting the main object of the conspiracy.
A trial, under such circumstances, for offences under section 120B, read with section 467/471 and 420 IPC., without obtaining sanction, is neither illegal, nor void.
It is necessary to keep in mind the difference between the object of a conspiracy and the means adopted for realising that object.
Even if the object of the conspiracy, viz., of cheating, is (1) ; 534 sought to be attained by resort to non cognizable offences, as in the case before us, sanction under section 196A of the Code is not necessary.
This principle emerges from the following decisions: Ramaohandra Rango vs Emperor(1); Durgadas Tulsiram vs State(2); Abdul Kadar vs State(3); Paresh Nath vs Emperor(4); Golam Rahman vs The King(6); Kannan, In re(6); and Vadlamudi vs State of A.P. (7).
The object of the conspiracy has to be determined, not only by reference to the sections of the penal enactment, referred to in the charge, but on a reading of the charges themselves.
On a perusal of the charges, framed against the appellants, we are satisfied that the only object of the conspiracy was to cheat the banks or the post offices, referred to in the charges, which is an offence under section 420, read with section 120B, IPC, for which no sanction is necessary.
No doubt there are also charges of committing forgery Of valuable security and using such forged documents, which are ,offences under sections 467 and 471 IPC, and non cognizable.
But a reading of the charges, as a whole, makes it clear that it is not the case of the prosecution that committing forgery of the Indian and British postal orders or the cheques, or using such forged documents, was the object of the conspiracy.
The accused would not he satisfied by merely entering into a conspiracy to forge the postal orders or the cheques, or even to use such forged documents.
The forging of the documents and using such forged documents, were only means adopted by the accused for realising the object, of the conspiracy, which was to cheat the postal and bank authorities, at the places mentioned in the charge, by dishonestly inducing them to part with money.
Therefore the trial of these accused, for offences under sections 120B read with section 467/ 471 and 420 IPC., and other allied offences, cannot be held to be illegal, on the ground that sanction under section 196A(2) of the Code, had not been obtained.
Before closing the discussion, on this point, it is necessary to refer to the reliance placed, by the, counsel for the appellants, on the acquittal, by the High Court, of Kapoorchand, on the ground that the trial was void, because the necessary sanction had not been obtained, under section 196A, of the Code.
It will be seen that the said accused also was tried for an offence under section 120B read with section 420 IPC., as also on certain other charges.
As will be seen from the judgment of the High Court, it has taken the view that the said accused has not been convicted, by the trial Court, for an offence, under section 120B read with section 420 IPC., and hence the trial is vitiated, for lack of sanction.
(1)A.I.R. 1939 Bom.129.
(2) A.I.R. 1955 Bom.
(2)A.I.R. 1964 Rom.133.
(4) A.I.R. 1947 Cal.
(5)A.I.R. (6) (1949) 2 M.L.J. Short Notes (7)A.I.R. p. 52 (Crl.
M.P. 2686/1949) 535 Mr. Khanna, learned counsel for the respondent, has pointed out that the said accused was also tried for the offence of cheating, but he was convicted only for certain other offences; and, in this connection, he referred us to the finding of the trial Court that all the accused were guilty of the offence of cheating also.
It is not necessary to pursuematter further, because, it Will be seen from the judgment of the trial Court that the said accused was also prosecuted for anoffence under section 120 B read with section 420 IPC.
In view of what is stated above, the first contention of the learned counsel for the appellants, has to be rejected.
So far as the second contention is concerned, that really relates to merits.
Both the learned Sessions Judge, as well as the High ,Court, have very elaborately gone into the evidence regarding the appellants, and have found them guilty of the offences, for which they were punished.
We do not see any error, committed by the High Court, or the Sessions Judge, in the appreciation of the evidence, in the case, and there is no justification for any interference, by this Court.
The result is that the appeal fails, and is dismissed.
G.C. Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellants along with two others were charged with having entered into a criminal conspiracy in pursuance of which postal orders and cheques in the course of transit by post were pilfered and after various alterations being made therein were encashed at post offices and banks.
The charges inter alia were under sections 467/471 read with section 120 B and a. 420 read with section 120 B of the Indian Penal Code.
The Sessions Judge convicted all the four accused but the High Court maintained the conviction only of the two appellants.
In appeal before this Court the appellants urged that inasmuch as the accused were prosecuted for non cognizable offences under sections 467/471 read with section 120 B I.P.C. the trial was illegal and void as the necessary sanction under section 196 A(2) of the Code of Criminal Procedure had not been obtained.
It was further urged that the mere fact that the accused were also tried for the offence of cheating, under section 420 I.P.C. for which no sanction was required, would not make the trial valid.
Under these circumstances it was contended that the joint trial for cognizable and non cognizable offences was illegal and void.
HELD : It is necessary to keep in mind the difference between the object of a conspiracy and the means adopted for realising that object.
No sanction is necessary under section 196 A(2) Cr.
P.C. when the object of the conspiracy is to commit the offence of cheating (420 I.P.C.) but forgery of documents (467 I.P.C.) and similar non cognizable offences are also committed, as merely steps taken, by one or other of the a for the purpose of effecting the main object of the conspiracy.
[533 F H] The object of the conspiracy has to be determined, not only by reference to the sections of the penal enactment, referred to in the charge but on a reading of the charges themselves.
The charges against the appellants showed that the only object of the conspiracy was to cheat the banks or the post offices, referred to in the charges, which is an offence under section 420 read with section 120 B I.P.C. for which no sanction is necessary.
The forging of the documents and usuing such forged documents were only means adopted by the accused for realising the aforesaid object.
Therefore the trial of the accused in the present case for offences under sections 120 B read with sections 467/471 and 420 I.P.C. and other allied offences, cannot be held to be illegal on the ground that sanction under section 196 A(2) of the Criminal Procedure Code had not been obtained.
[534 B E] State of Andhra Pradesh vs Kandimala Subbaiah, Ramchandra Rango vs Emperor, A.I.R. 1939 Bom.
129, Durgadas Tulsiram vs State, A.I.R. 1955 Bom. 82, Abdul Kadar vs State, A.I.R. 1964 Bom.
133, Paresh Nath vs Emperor, A.I.R. 1947 Cal.
32, Golam Rahman 528 529 Notes p. 52 Vadlamudi vs State of A.P. A.I.R. 1961 A.P. 448, referred to.
Subbaiah, In re : I.L.R. , Jadeda Meramanji vs State of Gujarat, (1963)2 Cr. L.J. 713, Nibaran Chandra vs Emperor, A.I.R. 1929 Cal.
754 and Madan Lal vs State of Punjab, ; , distinguished.


judgement:
Appeal No. 1249 of 1967.
Appeal from the judgment and decree dated July 21, 1967 of the Delhi High Court in Regular First Appeal No. 166 D of 1965.
A.K. Sen, Rameshwar Nath, P. L. Vohra and Mahinder Narain, for the appellant.
Bishan Narain, Radhey Mohan Lal and Harbans Singh, for the respondent.
The Judgment of the Court was delivered by Bachawat, J.
This appeal arises out of a suit for ejectment instituted by a landlord against a tenant.
It is common case that the suit is governed by the provisions of ' the Delhi and Ajmer Rent Control Act, 1952 (Act No. 38 of 1952) hereinafter referred to as the Act.
The material provisions of section 13(1) of the, Act are as follows : "13.
(1) Notwithstanding anything to the contrary contained.
in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated) : Provided that nothing in this sub section shall apply to any suit or other proceeding for such recovery of possession if the Court is satisfied (b)that the tenant without obtaining the consent of the landlord in writing has, after the commencement of this Act, (i)sub let, assigned or otherwise parted with the possession of the whole or any part of the premises; or 550 (ii) used the premises for a purpose other than that for which they were let; or, (c) that the tenant without obtaining the consent of the landlord has before the commencement of this Act, (i)sub let, assigned or otherwise parted with the possession of, the whole or any part of the premises;, or (ii)used the premises for a purpose other than that for which they were let; or (k)that the tenant has, whether before or after the commencement of this Act, caused or permitted to be ,caused substantial damage to the premises, or notwithstanding previous notice has used or dealt 'with the premises in a manner contrary to any condition imposed on the landlord by the Government, or the Delhi Improvement Trust while giving him a lease of the land on which the premises are situated;" The respondent constructed the building known as the Hotel Imperial, New Delhi, on land leased to him by the Secretary of State for India in Council under a perpetual lease deed dated July 9, 1937.
By a deed dated August 18, 1939, he leased to the appellant the hotel premises together with fittings and furniture for a term of 20 years commencing on September 15, 1939.
On January 28, 1958, the respondent instituted the present suit alleging that in breach of the express conditions of the lease dated August .18, 1939, the appellant sub let portions of the premises and made unauthorised additions and alterations in the premises, that on such breaches he was entitled to determine the lease and he did so, by notice in writing dated January 6, 1958.
He claimed eviction of the appellant on the grounds mentioned in cls.
(b), (c) and (k) of the proviso to section 13(1) of the Act.
The appellant filed its written statement on April 3, 1958 denying most of the material allegations in the plaint.
The appellant also pleaded that the respondent had waived the breaches, if any, of the conditions of the lease by accepting rents with knowledge of such breaches and particularly by accepting rent on or about January 3, 1958.
On April 24, 1958, Sri P. L. Vohra, counsel for the appellant, made the following statement before the trial Court : "The plaintiff can seek ejectment of the defendant only under section 13 of Act 38 of 1952.
In case the 551 plaintiff succeeds in establishing the liability of, the defendant for ejectment on any of the grounds given in .section 13 of the Rent Act, the defendant would not seek any protection under the terms of the lease deed dated 18th August, 1939 executed between the parties, as regards the period of lease fixed therein.
" Having regard to the pleadings and statement of counsel, the Court settled the following issues on May 12, 1958 : "1.
Whether the defendant had sublet, assigned or otherwise parted with possession, of any part of the suit premises before the commencement of Act 38 of 1952 ? 2.
If so, was the same done with express or implied consent of the plaintiff ? 3.
Whether the defendant had sublet, assigned or otherwise parted with possession of any part of the suit premises after the commencement of Act 38 of 1952 ? 4.If so, was the same done with the prior consent in writing of the plaintiff ? 5.Whether the defendant has used the tenancy premises for a purpose other than that for which they were let ? 6.
Whether the defendant has caused substantial damage to the tenancy premises ? 7.
Whether the defendant notwithstanding previous notice has been.
using and dealing with the tenancy premises in a manner contrary to the conditions imposed on the plaintiff by, the Government while giving him lease of the site of the tenancy premises ? 8.
Is the defendant entitled to special cost ? 9.
Whether the plaintiff is estopped or has waived his right to seek ejectment of the defendant on any of the grounds mentioned above ? If so, what and to what effect ? 10.Whether the defendant is entitled to sublet any part of the hotel premises even when there was a clause to the contra in the lease dated the 18th August, 1939.
and in face of statutory provisions under the Rent Control Act (for reasons given in para 16 of the amended written statement) ?" A tenant holding premises under a subsisting lease is pro tected by the lease and needs no protection under the Rent Act.
It was open to the appellant to contend that it was protected by 552 the terms of the lease dated August 18, 1939, that the breaches, if any, of the conditions of the lease had been waived by the respondent and that the lease had not determined.
But the appellant deliberately elected to seek protection under section 13 of the Act only.
The appellant 's counsel made a ' formal statement in the trial Court that the appellant would not seek any protection under the terms of the lease deed as regards the period of the lease fixed therein.
The Court accordingly settled the ten issues.
Issue No. 8 was not pressed.
All the other issues relate to thegrounds of eviction mentioned in cls.
(b), (c) and (k) of theproviso to section 13(1) of the Act.
Issue No. 9 raises the question of waiver of the respondent 's right to seek ejectment on those grounds.
Thus, the only questions in issue between the parties was whether the appellant was entitled to protection from eviction under section 13 and whether any ground for eviction under the Act was made out.
The case was tried and decided on this footing.
We have come to this conclusion after a close examination of the 'pleadings, particulars, statement of counsel, issues and the judgment of the trial Court.
No issue was raised on the question whether the breaches of the express conditions of the lease had been waived by the respondent, and whether the lease was still subsisting.
The appellant sought to raise this plea in the High Court and also in this Court Having regard to the deliberate stand taken by the appellant in the trial Court, the appellant cannot be allowed to raise the plea at a later stage.
The lease determined by efflux of time on September 15, 1959.
Had the appellant taken the plea that the lease had not determined by forfeiture on the date of the institution of the suit, it is possible that the respondent might have filed another suit for ejectment of the appellant immediately after September 15, 1959.
Because of the stand taken by the appellant, it was not necessary for the respondent to file another suit.
This appeal must be decided on the footing that the lease had determined by forfeiture on the date of the institution of the present suit.
The respondent is entitled to a decree for eviction if any of the grounds mentioned in cls.
(b), (c) and (k) of the proviso to section 13(1) is made out.
The trial Court answered issue No. 5 in the negative.
With regard to all the other issues, the trial Court found in favour of the respondent, and held that the grounds of eviction mentioned in cls.
(b)(1), (c)(i) and (k) were proved.
With regard to the ground of eviction mentioned in cl.
(k), the trial Court held that the appellant was entitled to relief on certain conditions.
The trial Court, however, held that the respondent was entitled to an unconditional decree, for eviction on the ground of sub letting mentioned in cls.
(b)(i) and (c)(i).
The appellant preferred 553 an, appeal to the High Court.
The High Court agreed with all the findings of the trial Court, and dismissed the appeal.
The two Courts concurrently found that the appellant had sub let several rooms, counters, showcases and garages.
The two Courts found that the appellant had sub let rooms to (1) Pan American World Airways, (2) Mercury Travels, India (Private) Ltd., travel agents, (3) Indian Art Emporium, dealers in curios and jewellery, (4) Shanti Vijay and Co., dealers in jewellery, (5) Roy and James, hairdressers, (6) Sita World Travels, travel agents and (7) Ranee Silk Shop, dealers in saris and curios.
The businesses of the sub lessees were not confined to the residents of the hotel.
The letting to Pan American World Airways and Indian Art Emporium were before the commencement of the Act and the lettings to Mercury Travels, Shanti Vijay and Co., and Roy and James were after the commencement of the Act.
Sita Travels and Ranee Silk Shop were inducted as tenants after the institution of, the suit.
The entrances to the rooms were in ,the main corridor of the hotel on the ground floor.
The concurrent finding is that the occupants were given exclusive possession of the rooms occupied by them.
The appellant did not retain any control and dominion over the rooms.
It is possible that the keys of the apartments were sometimes left at the reception counter, but the evidence on this point was not convincing.
It was not a condition Of the grants that the keys would be left at the reception counter, or that the duplicate keys would be retained by the appellant.
The occupants were at liberty to take away the keys if they liked '.
The occupants availed themselves of the services of the hotel sweeper for, their own convenience.
The appellant retained control of the corridor, but it is common case before us that the entrance to the corridor was open day and night.
The occupants paid monthly sums to the appellant as the consideration of the sub leases.
The consideration though described as license fee was in reality rent.
The portion occupied by Roy and James has an interesting history.
It was formerly sub let to R. N., Kapoor.
In Associated Hotels of India Ltd. vs R. N. Kapoor(1), this Court held by a majority on a construction of the grant to R. N. Kapoor that he was a lessee and not a licensee.
Roy and James began to occupy this portion of the premises from February, 1955.
According to the appellant, the agreements with Roy and James, Mercury Travels and Shanti Vijay and Co., were in writing.
The appellant produced several documents in Court at an early stage of the suit.
The appellant 's case was that these documents were the relevant agreements.
According to the respondent, the documents were not genuine and the real agree (1) [196] 1 S.C.R. 36F 554 meats were being withheld.
The stamp auditor noted on the documents the deficiency in stamps and penalty leviable on them on the footing that they were lease deeds.
The appellant did not contest this note nor paid the penalty and deficiency as directed by the trial Court.
The surprising feature of the case is that the appellant did not attempt to prove any of the documents.
Where the agreement is in writing, it is a question of construction of the agreement whether the grant is a lease or a license.
It was for the appellant to prove the written agreements, and the Court could then construe them.
The appellant has not brought before the Court the best and the primary evidence of the terms on which the apartments were being occupied.
The onus to prove sub letting was on the respondent.
The respondent discharged the onus by leading evidence showing that the occupants were in exclusive possession of the apartments for valuable consideration.
The appellant chose not to rebut this prime facie evidence by proving and exhibiting the relevant agreements.
The documents formed part of the appellant 's case.
The appellant bad no right to withhold them from the scrutiny of the Court.
In the absence of the best evidence of the grants, the Courts below properly inferred sub lettings from the other materials on the record.
The test of exclusive possession, though not conclusive, is a very important indication in favour of tenancy, see Addiscombe Garden Estates Ltd. and Anr.
vs Crabbe and Ors.(1) The argument is that as the landlord is living in the premises, that fact raises the presumption that he intends to retain the control of the whole of the premises and that the occupation of the other parts is that of a lodger or inmate and not that of a tenant, and reliance was placed on Helman vs Horsham Assessment Committee(2) and the cases referred to therein.
Those cases consider what constitute rateable occupation.
In the case last cited, Denning, L. J. said that a person who is regarded as a lodger for rating purposes need not necessarily be a lodger for the purposes of the Rent Restriction Acts, while Evershed L.J. seems to have expressed a contrary opinion.
Normally, an occupier of an apartment in a hotel is in the position of a licensee as the hotel keeper retains the general control of the hotel including the apartment.
But it is not a necessary inference of law that the occupier of an apartment in a hotel is not a tenant.
Where, as in this case, the hotel keeper retains no control over the apart ment, the occupier is in the position of a tenant.
In Halsbury 's Laws of England, Vol. 23, article 1028, p. 433, the law is accurately summarised thus "A lodger who has no separate apartment is only a licensee, and, even though he has a separate apart (1) , 525.
(2) 555 ment, he has not in law an exclusive occupation, and is therefore in the position of a licensee, if the landlord retains the general control and dominion of the house, including the part occupied by the lodger; but, if in fact the landlord exercises no control over that part, the occupier is a tenant.
The occupier does not, however, become a lodger merely by reason of the fact that the landlord resides on the premises and retains control of the passages and staircases and other parts used in common.
" On the question whether the occupier of a separate apartment in a premises is a licensee or a tenant, the test is has the landlord retained control over the apartment ? The fact that the apartment is a room in a hotel may lead to the inference that the hotel keeper retains the general dominion of the en tire hotel including the apartment and that the occupier is in the position of a lodger or inmate.
But the inference is not a necessary inference of law.
Where, as in this case, the best evidence of the rant was withheld from the scrutiny of the Court, the inference was rightly drawn that the occupiers were tenants.
At the hearing of this appeal, the appellant moved an appli cation for reception of the documents as additional evidence.
The genuineness of the documents was disputed by the respondent.
In the Courts below, the appellant made no attempt to prove these documents.
We found no ground for directing a new trial.
Having regard to all these facts, we dismissed the application.
The hotel building constitutes premises within the meaning of section 2(g) of the Act. ' It is because the hotel building constitutes Premises that the appellant can claim protection from eviction under the Act.
A room in a hotel is a part of the hotel premises.
A sub letting of a room in a hotel in contravention of cls.
(b) and (c) of the proviso to section 13(1 ) is a ground for eviction under the Act.
Section 2(g) provides that 'premises ' does not include " a room in a hotel or lodging house.
" The sub lessee of a room in a hotel is, therefore, not a tenant and cannot claim protection under section 13 from eviction, nor can he ask for fixation of standard rent.
see Associated Hotels of India Ltd. vs R. N. Kapoor(1).
If the interest of the tenant of the hotel premises is determined, the sub tenant to whom a room in the hotel has been lawfully sublet becomes under s, 20 a direct tenant of the landlord, It may be that when the sub tenant of a room in a hotel becomes a direct tenant under section 20 he enjoys the protection of the Act because the room is no, longer a room in a hotel.
But that point does not arise and need not be decided.
Because a room in a hotel is not (1) ; 556 premises, it does not follow that the room is not a part of the hotel premises or that a sub letting of the room is not a contravention of cls.
(b) and (c) of the proviso to section 13(1).
The Courts below concurrently found that the sub lettings after the commencement of the Act were made without obtaining the consent of the landlord in writing, and the sub lettings before the commencement of the Act were made without obtaining the consent of the landlord either orally or in writing.
We are not inclined to interfere with this concurrent finding.
It is said that by the lease deed dated August 18, 1939 the respondent impliedly consented to this sub letting.
Clauses 21 .and 22 of the lease are in these terms "21.
That the lessee shall not be entitled to either transfer or sub lease the premises or any part thereof to any other party without the written consent of the lessor and on such transfer, both the transferee and the lessee shall be liable for the payment of rent to the lessor and responsible to deliver,possession of the building and equipments in the same condition as when taken.
22.That the lessee will use the premises only for the purpose of running a first class hotel.
" It is ,aid that for the purpose of running a first class hotel it was necessary to sub let the apartments.
It is impossible to accept the contention.
A hotel keeper may run a first class hotel without sub letting any part of it.
Clause 21 clearly provided that the lessee shall not sub lease the hotel premises or any part thereof.
In the teeth of cl. 21, it is impossible to read in cl. 22 an implied consent to sub letting.
Reliance is placed on the correspondence passed between the Land Development Officer, New Delhi and the respondent bet ween April 1948 and February 1949 for establishing that the respondent gave written consent to the sub lettings.
The Land and Development Officer was then complaining of the occupation of portions of the premises by Pan American World Airways and other persons.
By his letters dated November 4, 1948 and February 23, 1949, the respondent requested the Land and Development Officer to regularise the matter adding that in an first class hotels counters of air lines and show rooms of jewellery and curios were always provided.
These letter,.; do not amount to a consent in writing to sub lettings of portions of the hotel to the persons mentioned therein.
Moreover, the consent, if any, 'was to the sub lettings made before 1949 and not to the sub lettings made thereafter.
It is not possible to infer from these letters a general consent to all sub lettings.
557 It is argued that the respondent waived the requirement of consent to the sub letting.
Any subletting in breach of the provisions of cl.
(b) of the proviso to section 13 ( 1) is an offence punish able under section 44.
Assuming that the landlord can waive the requirement as to consent, it is not shown that the respondent waived it.
A waiver is an intentional relinquishment of a known right.
, There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights.
See Dhanukdhari Singh vs Nathima Sahu(1).
It is said that the respondent knew of the sub lettings as he frequently visited the hotel.
It appears that he visited the hotel up to 1953 and he must have known of the occupation of R. N. Kapoor, Indian Art Emporium and Pan American World Airways.
But he came to know of the other lettings in January 1958 only.
Moreover, the precise nature of the grant was never communicated ,to the respondent.
The Courts below rightly held that the respondent did not waive his right to evict the appellant on the , rounds mentioned in cls.
(b) and (c) of the proviso to section 13 (1).
We are therefore satisfied that the respondent is entitled to evict the appellant on the ground of sub letting of the rooms.
The Courts below held that the appellant had also sublet several counters, show cases and garages to various persons.
We express no opinion on the question whether there was any sub letting of the counters, show cases and garages.
The sublettings of the rooms are sufficient grounds of eviction tinder cls.
(b) and (c) of the proviso to section 13(1).
Clause 2(v) of the head lease granted by the Government to the respondent provided that the respondent would not, without the previous consent in writing of the Chief Commissioner.
Delhi or a duly authorised officer, erect or suffer to be erected on any part of the demised premises any building other than the buildings erected there on the date of the lease.
The appellant had due notice of the conditions of the head lease.
Notwithstanding such previous notice, the appellant dealt with the premises in a manner contrary to the conditions imposed by cl. 2 (v).
The Courts below found that contrary to this condition, the appellant made several unauthorised constructions without obtaining the requisite consent.
To give one illustration, the appellant admittedly constructed a room 16 ft. 6 in X 19 ft. 6 in.
with R.C.C. slab and brick masonry walls.
This newly constructed room was let to Shanti Vijay and Co.
On the ground of unauthorised construction of this room alone it must be held that the appellant in contravention of cl.
(k) of the proviso to section 13 (1), notwithstanding previous notice, dealt with the premises in a manner contrary to (1) , 852.
558 a condition imposed on the respondent by the Government while ,giving him a lease of the land on which the premises are situated.
The notice of the conditions imposed by the head lease was sufficient notice for the purposes of cl.
The ground of eviction under cl.
(k) was thus made out.
The Courts below also held that the appellant caused substantial damage to the premises.
We express no opinion on it, and this question is left open.
It follows that the respondent is entitled to evict the appellant on the grounds mentioned in cls.
(b) (i), (c) (i) and (k) of the proviso to section 13(1).
In the result, the appeal is dismissed with costs.
The execution of the decree is stayed for a period of six months from today.
The appellant through Mr. A. K. Sen gives an undertaking that the appellant will hand over to the respondent, on the expiry of six months, vacant possession of the entire hotel premises except the portion in the possession of sub lessees.
Y.P. Appeal dismissed.

summary:
The respondent landlord of a hotel filed a suit for eviction of his tenant appellant under section 13(1) proviso (b) and (c) of the Delhi and Ajmer Rent Control Act, 1952 on the allegation that the appellant had sub let several rooms.
These occupants were doing business, which were not confined to the residents of the hotel.
The occupants were given ex clusive possession of the rooms occupied by them.
The appellant did not retain any control and dominion over these rooms.
It was not a condition of the grants that the keys would be left at the reception counter, or that the keys would be retained by the appellant.
The occupants were at liberty to take away the keys if they liked.
The occupants availed themselves of the services of the hotel sweeper for their own convenience.
The appellant retained control of the corridor, but the entrance to the corridor was open day and night.
The occupants paid monthly sums to the appellant as the consideration of the sub leases.
The appellanttenant denied the allegations and pleaded that the respondent landlord had waived the breaches, if any.
The suit was decreed which the High Court, in appeal maintained HELD : The landlord was entitled to the decree for eviction.
[558 B] On the question whether the occupier of a separate apartment in a premises is a licensee or a tenant, the test is has the landlord retained control over, the apartment Normally, an occupier of an apartment in a hotel is in the position of licensee as the hotel keeper retains the general control of the hotel including the apartment.
But it is not a necessary inference of law that the occupier of an apartment in a hotel is not a tenant.
A hotel keeper may run a first class hotel without sub letting any part of it.
Where as in this case, the hotel keeper retained no control over the apartment, the occupier was in the position of a tenant.
The onus to prove sub letting was on the respondent.
The respondent discharged the onus by leading evidence showing that the occupants were in exclusive possession of the apartments for valuable consideration.
The appellant chose not to rebut this prima facie evidence by proving and exhibiting the relevant agreements.
[553 D; 554 C D, F H; 555 C; 556 E] Under section 2(g) "premises" does not include " a room in a hotel or lodging house".
The sub lessee of a room in a hotel is, therefore, not a tenant and cannot claim protection under section 13 from eviction, nor can he ask for fixation of standard rent.
But, because a room in a hotel is not premises, it does not follow that the room is not a part of the hotel premises or that a sub letting of the room is not a contravention of cls.
(b) and (c) of the proviso to section 13(1).
[555 F G 556 A] Associated Hotels of India Ltd. vs R. N. Kapoor, [1960]1 S.C.R. 368, followed.
Addiscombe Garden Estates Ltd. & Anr.
vs Grabbe and Ors.
and Helman vs Horsham Assessment Committee, [1949] 2 K.B. 335,referred to.
549 A waiver is an intentional relinquishment of a known right.
There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights.
Assuming that the landlord can waive the requirement as to consent, it was not shown that the respondent waived it.
It is said that the respondent knew of the sub lettings as be frequently visited the hotel up to 1953 and he must have known of the occupation of some of the occupants.
But he came to know of the other lettings in 1958 only.
Moreover, the precise nature of the grant was never communicated to the respondent.
[557 B D] Dhanukdhari Singh vs Nathima Sahu, , referred to.


judgement:
Civil Appeal No. 145 of 1965.
Appeal by special leave fro.m the judgment and order dated September 24, 1956 of Madhya Pradesh (Now Madhya Pradesh) High Court at Gwalior in Civil Misc.
Application No. 91 of 1955.
N.S. Bindra, P.W. Sahasrabudde and A.G. Ratnaparkhi, for the appellant.
Rameshwar Nath and Mahinder Narain, for respondents Nos.
1 to 3.
The Judgment of the Court was 'delivered by Sikri, J.
This appeal by special leave is directed against the judgment of the High Court of Madhya Bharat in Civil Miscellaneous Application No,. 91 of 1955, read with Civil Miscellaneous Application No. 92 of 1955, filed under article 227 of the Constitution by Rao Jagdish Singh and others.
By this judgment the High Court accepted the applications and quashed the decision of the Board of Revenue and dismissed the claim of Lallu Yeshwant Singh, son of Nahar Singh, now deceased, represented by Babu Singh, appellant before us.
The relevant facts for appreciating the points arising in the appeal are as follows.
Yeshwant Singh and other sons of Lallu Nahar Singh, hereinafter referred to as the plaintiffs, filed a suit against Rao Jagdish Singh and 4 others (Revenue Case No. 24 of 2000 S.Y.) in the Court of Tehsildar, Pargana Pichhore, District Gwalior, for the possession of some agricultural land under section 326 of Qanoon Mal.
The plaintiffs ' case, in brief, was that they were gairdakhilkar cultivators and that Rao Jagdish Singh, defendant No. 1, had forcibly prevented the plaintiffs from doing cultivation and got the disputed land cultivated by defendants Nos. 2 and 3, by interfering with the possession of the plaintiffs.
The plaintiffs prayed that a decree for possession may be passed in their favour against all the defendants.
The defendants ' case, in brief, was that the village in which the land in dispute iS situated is Ryotwari village and no suit could be instituted against Jagirdars under section 326.
The defendants further alleged that the plaintiffs had failed to pay revenue and their rights had been extinguished under section 82 of Qanoon Ryotwari.
The Tehsildar decreed the suit.
The Collector on appeal upheld the order.
The Commissioner on 205 further appeal also upheld the order.
On revision, the Board of Revenue agreed with the Commissioner and dismissed ' the revision.
On behalf of the appellant it is contended (1 ) that in a suit under section 326 Qanoon Mal, read with section 163, Qanoon Ryotwari, a plaintiff is entitled to recover _possession if he is dispossessed from prior juridical possession, within six months of the suit, and the question of title is irrelevant in such a suit; and (2) that a landlord cannot forcibly enter and drive out the tenant whose tenancy is alleged to have been extinguished.
The relevant statutory provisions are as follows: "Qanoon Ryotwari section 82.
The right of the pukhta Maurusi, Sakitul Milkiyat and Mamuli Maurusi will be extinguished under the following circumstances; (3) When the Khatedar keeps in arrears the ]and revenue of his khata excepting the case where the collection of land revenue is ordered to be postponed;. section 137.
In case the land revenue for the whole year is not paid before one week of the date fixed for the last instalment the khatedar will be dealt with as follows : 1.
By issue of process; 2.
By arrest of the defaulter; 3.
By attachment and sale of movable property; 4.
By attachment and sale of immovable property; 5.
By confiscation (Jupti) of the khata and ejectment of the defaulter; 6.
By auctioning the khata; Provided if the arrears are due against such khatedar who has been a good payer (khush dehanda) and for some special reason for some years not by his own mischief but for reason beyond his control, the Suba (Collector) will be entitled to accept his instalments upto three years.
S.163.
Suits of trespass and obstruction 'between khatedars and between khatedars and other persons will be entertained in that Sega (Dept.) court and limitation which is described in Section 326 of Qanoon Mal Riyasat Gwalior Samvat 1983 and Sections 326, 206 327, 328, 330, 331, 332, 333, 334 and 335 so far as they are applicable or appendices of the.
Qanoon Mal shall apply as may be applicable to the suits under section 326 of the said Act.
Qanoon Mal section 325.
If any person claiming to be in possession of any agricultural land desires his name to be entered in Revenue papers and papers of Patwari, then the Patwari, if in case of actual physical possession enter his name in accordance with procedure in Khasra and other papers and inform the Malguzar; in case of not being in possession, the cultivator not in possession shall have the right to file within three years of the date of dispossession a suit regular in Court of Tehsil on stamp paper, which may become payable on annual income of "Lagan" according to Scale in Schedule No. 4 prescribed.
section 326.
(1) Cases in respect of the return of possession which has been disturbed unlawfully (Beja Tot Par) or for prevention of obstruction about agricultural lands, thrashing grounds, (Khaliyan) road, forest, grass pastures, gardens, trees, wells, irrigation and tanks between Malguzars and cultivators or between cultivators will be entertained in the summary jurisdiction of the Pargana revenue Court or in the Tappa courts within six (6 ) months and in case of proof of trespass or obstruction, possession and damages will be awarded against the defendant and if the court thinks fit it may also take bonds, quantum whereof will be decided in view of the nature of the trespass or obstruction.
(3) Suits beyond this duration will be entertained as per section 325 of the Qanoon Mal in the regular jurisdiction.
" The Board of Revenue was of the view that in case land revenue remains in arrears, the fight of a tenant gets extinguished under section 82 of the Qanoon Ryotwari, but nevertheless the possession of the tenant whose right has been so extinguished is not put to an end automatically, and the tenant must be legally dispossessed, The Board observed: "This is a general principle of law that no act can be done by the strength of one 's own hands but help of the law should be taken and the procedure which is 207 prescribed for that act must be acted upon.
In this case the petitioner has not obeyed any law regarding the dispossession of the opponent after the plaintiff lost his right and he himself went there and took possession.
" The Board was further of the view that action for dispossession should have been taken according to section 137 of Qanoon Ryotwari, extracted above.
The High Court, however, came to the conclusion that it was not obligatory on the defendant to have filed a suit under section 137 of Qanoon Ryotwari.
The High Court felt that the proviso to section 137; which enabled the Collector to accept arrears for three years, did not militate against such a construction.
The High Court was also of the view that under the general law applicable to a lessor and a lessee there was no rule or principle which made it obligatory for the lessor to resort to Court and obtain an order for possession before he could eject the lessee.
The High Court interpreted section 163 of Qanoon Ryotwari to mean that in a proceeding under that section it is not sufficient to determine the question of de facto possession alone but it is also necessary to.
enquire as to whether this possession is or is not wrongful.
It seems to us that on a, true interpretation of the statutory provisions, extracted above, the Board of Revenue came to the.
correct conclusion.
Under section 82(3) Qanoon Ryotwari, the fight of a Khatedar is extinguished if the khatedar keeps in arrears the land revenue of his khata but there is no automatic extinguishment of his right because section 137 of Qanoon Ryotwari enables the Collector to accept arrears if the khatedar is a good payer (khush dehanda) and there are special reasons beyond his control for not paying the land revenue.
The existence of the proviso instead of assisting the landlord 's contentions assists the tenant 's case because if the reasoning of the High Court is accepted to be correct, the proviso would become a dead letter for in every case where there are arrears of land revenue, the landlord would take.
possession forcibly without trying to recover land revenue under section 137.
Further, section 163 of Qanoon Ryotwari clearly provides for suits of the nature described in section 326 of Qanoon Mal.
When we turn to section 326, it is very similar to section 9 of the and it seems to uS that the words "disturbed unlawfully" in section 326 mean "disturbed not in due course of law.
" Otherwise, there is no reason why a shorter period of limitation and summary procedure is provided in section 326 while section 325 provides a longer period of three years for a suit for possession.
Some stress was laid on the words "in case of proof of trespass" in section 326 by the learned counsel for the respondent.
According to him, a landlord does not commit trespass when he forcibly enters on land in the possession of a tenant whose tenancy 208 has expired.
In our view, in the context, the word "trespass" here would include forcible entry and dispossession by the landlord.
Reference was made to a number of English authorities in this behalf but it is not necessary to deal with them because the law in India on this subject is different.
Under section 9 of the it is well settled that question of title is irrelevant in a suit under that section.
As the structure of section 326 of Qanoon Mal, read with section 163 of Qanoon Ryotwari, is similar to section 9 of the , there is No. reason why section 326 should be interpreted differently.
In Midnapur Zamindary Company Limited vs Naresh Narayan Roy(1), the Privy Council observed: "In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court." In K.K. Verma vs Naraindas C. Malkani(2), Chagla, C.J., stated that the law in India was essentially different from the law in England.
He observed: "Under the Indian law the possession of a tenant who has ceased to be a tenant is protected by law.
Although he may not have a right to continue in possession after the termination of the tenancy his possession is juridical and that possession is protected by statute.
Under section 9 of the a tenant who has ceased to be a tenant may sue for possession against his landlord if the landlord deprives him of possession otherwise than in due course of law, but a trespasser who has 'been thrown out of possession cannot go to Court under section 9 and claim possession against the true Owner.
" In Yar Mohammad vs Lakshmi Das(3), the Full Bench of the Allahabad High Court observed: "No question of title either of the plaintiff or of the defendant can be raised or gone into in that case (under.
section 9 of the ).
The plaintiff will be entitled to succeed without proving any title on which he can fall back upon and the defendant cannot succeed even though he may be in a position to establish the: best of all titles.
The restoration of possession in such a suit is, however, always subject to a regular (1) 51 I A.293 at 299.
(2) I.L.R. [1954] Born.
950 at 957.
(3) I.L.R. [1958] 2 All. 394 at 4e4.
209 title suit and the person who has the real title or even the better title cannot, therefore, be prejudiced in any way by a decree in such a suit.
It will always be open to him to establish his title in a regular suit and to recover back possession.
" The High Court further observed: "Law respects possession even if there is no title to support it.
It will not permit any person to take the law in his own hands and to dispossess a person in actual ' possession without having recourse to a court.
No person can be allowed to become a judge in his own cause.
As observed by Edge, C.J., in Wali Ahmed Khan vs Ayodhya Kundu(1): "The object of 'the section was to drive the person who wanted to eject a person into the proper court and to prevent them from going with a high hand and ejecting such persons.
" Our attention was invited to the decision of the Calcutta High Court in State of West Bengal vs Birendra Nath Basunia(2)* In that case the High Court refused to issue an order under Art 226 of the Constitution prohibiting the Government from forcibly taking possession of lands which had been validly resumed by Government.
We are not concerned with that question here But we do not agree with the conclusion of the High Court that a lessor is entitled in India to use force to throw out his lessee.
In Hillaya Subbaya Hegde vs Narayanappa Timmaya(3) in was observed: "No doubt, the true owner of property is entitled to retain possession, even though he has obtained it from a trespasser by force or other unlawful means: Lillu bin Raghushet vs Annaji Parashram(4) and Bandu vs Naba(5).
" We are unable to appreciate how this decision assists the respondent It was not a suit under section 9 of the .
1n Lillu bin ' Raghushet vs Annaji Parashram(4), it was recognised that "if there is a breach of the peace in at:tempting to take possession, that affords a ground for criminal prosecution, and the attempt is successful, for a summary suit also for a restoration to possession under section 9 of the 1 of 1877 Dadabhai Narsidas vs The Sub Collector of Broach" (6) In Bandu vs Naba(5) it was observed by Sargent, C.J., as follows (1) All.
537 556.
(2) A.I.R. 1955 Cal.
(3) (4) 387 391 (5) Bom.
(6) 7 Bom.
H.C. Rep. 82 A.C.J. 210 "The Indian Legislature has, however, provided for the summary removal of any one who dispossesses another, whether peaceably or otherwise than by due course of law; but subject to such provision there is no reason for holding that the rightful owner so dispossessing the other is a trespasser, and may not rely for the support of his possession on the title vested in him, as he clearly may do by English law.
This would also appear to be the view taken by West, J., in Lillu vs Annaji(1).
" In our opinion, the law on this point has been correctly stated by the Privy Council, by Chagla, C.J., and by the Full Bench of the Allahabad High Court, in the cases cited above.
For the aforesaid reasons we hold that the High Court erred in quashing the order of the Board of Revenue.
The appeal is accordingly allowed with costs, judgment of the High Court set aside and the order of the Board of Revenue restored.
G.C. Appeal allowed (1) Bom.
387 391.

summary:
Certain tenants of ryotwari land in Gwalior district filed a suit under 'section 326 of the Qanoon Mal alleging dispossession by the landlords and praying for restoration of possession.
On behalf of the defendants it was urged that by not paying land revenue the plaintiffs ' rights had been ,extinguished under section ' 82 of the Qanoon Ryotwari.
The Revenue authorities decreed the suit on the view that even when land revenue was not paid the landlord could not take possession without recourse to a suit under section 137 Qanoon.
Ryotwari.
The High Court however allowed landlords ' petition under article 227 of the Constitution holding that it was not obligatory on the landlord to resort to Court in order to eject a defaulting lessee, and that in a proceeding under section 163 of Qanoon Ryotwari it was not sufficient to determine the question of de facto possession alone but it was also necessary to enquire as to whether ' this possession was or was not wrong.
The appellant, who was one of the tenants came to this Court.
Held: (i) Under section 82(3) Qanoon Ryotwari, the right of a Khatedar extinguished if the khatedar keeps in arrears the land revenue of his khata but there is no automatic extinguishment of his right because the proviso to section 137 of the Qanoon Ryotwari enables the Collector to accept arrears if the khatedar is a good payer (khush dehanda) and there are special reasons beyond his control for not paying land revenue.
The proviso would become a dead letter if in every case when there are arrears of land revenue the landlord could take possession forcibly without trying to recover the land revenue under section 137.
[207 E G] Further section 163 of Qanoon Ryotiwari clearly provides for suits of the nature described in section 326 of Qanoon Mat.
Section 326 is very similar 10 section 9 of the , and the words 'disturbed unlawfully '.
in section 326 mean "disturbed not in due course of law".
Otherwise.
there is no reason why a shorter period of limitation and summary procedure is provided in section 326 while section 325 provides a longer period of three years for a suit for possession.
The word 'trespass ' in section 326 would include forcible entry and dispoSsession by the landlord.
[207 G 208A] (ii) Under section 9 of the the question of title is irrelevant under that section.
Section 326 of Qanoon Mal read with Qanoon Ryotwari being similar to that section must be similarly interpreted.
[208B] Midnapur Zamindary Company Limited vs Naresh Narayan Roy, 5t I.A. 293, K.K. Verma vs Naraindas C. Malkani.
I.L.R. [1954] Born.
950, Yar Mohammad vs Lakshmi Das.
I.L.R. [1958] 2 All. 394.
Wali 204 Ahmad Khan vs Ayodhya Kundu, All. 537, State of West Bengal vs Birendra Nath Basunia, A.I.R. , Hillaya Subbaya Hegde vs Narayanappa Timmaya, , Lillu bin Raghushet vs Annaji Parashram,.
387, Bandu vs Naba, Bom. 238 and Dadabhai Narsidas vs The Sub Collector of Broach.
7 Bom.
H.C. Rep. 82 ACJ, referred to.